Wednesday, December 6, 1826.

The House met pursuant to adjournment.

Lawrence Brasher, a member from the county of Pickens, appeared, was qualified and took his seat.

Mr. Lawler presented the account of William T. Gamble, assessor and tax collector of Shelby county; which was read, and referred to the committee on accounts.

Mr. Moore of Jack. from the committee on the state bank, to which was referred the petition of sundry inhabitants of the southern part of Lawrence county, praying the General Assembly to authorize the president and directors of the State Bank to lend them money in such sums as they may call for, not exceeding $200, nor less than $50,  on a credit of twelve months without curtailment, reported that the prayer of the petitioners ought not to be granted. In which report the House concurred.

On motion of Mead, Resolved, That with the consent of the Senate the two Houses will proceed on Saturday next, at 12 o'clock, to the election of a Trustee to the University of the sixth judicial circuit to fill the vacancy occasioned by the resignation of Clement Billingsly

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and that the east end of the Representative Hall be assigned for the reception of the Senate.

Mr. Moore of Jack. from the committee on the state bank, to which was referred the resolution instructing said committee to inquire into the expediency of amending an act of the last session of the legislature, entitled an act to amend the charter of the State Bank, so as to make it the duty of the committee elected by authority of said act, to inquire of the members from the different counties as to the solvency or insolvency of the debtors of the Bank in their respective counties, reported that such an amendment would be inexpedient. Ordered, that said report lie on the table.

Mr. Montgomery, from the committee on roads, bridges and ferries to which was referred a bill to be entitled an act to amend an act concerning roads, highways, bridges and ferries in the county of Mobile, reported the same without amendment. The bill was then read a second time, and ordered to be engrossed for a third reading.

Mr. Greening, from the select committee to which was referred a bill to be entitled an act to amend the charter of the Bank of the State of Alabama, reported the same without amendment.

Mr. Greening then moved that the bill lie on the table; which was carried- yeas 45, nays 15.

The yeas and nays being desired- those who voted in the affirmative are

Mr. Speaker

Crenshaw

Duke

Jones

Perry

Acklen

Coopwood

Edmondson

Lawler

Powell

Benson

Coleman

Ellis

Moore of Mad

Ross

Bridges

Davis of Fr

Edwards

Moore of Jack

Rhodes

Brown

Davis of Jack

Exum

Martin

Smith of Henry

Broadnax

Dale

Fluker

Massey

Sims

Bell

Dennis

Greening

Neill

Weissinger

Brasher

Dupuy

Heard

Perkins

Walthall

Barclay

Dubose

Johnson

Pickens

Whitfield- 45

Those who voted in the negative are

Mr. Bailey

Coe

McClung

McVay of Law.

Smith of La.

Bradford

Harris

Montgomery

Mead

Terry

Craig

Lewis

McVay of Laud

Parham

Williams-15

A message from the Senate by Mr. Crabb: Mr. Speaker - the Senate have read three times and passed a bill which originated in your honorable body, entitled an act to alter the state road from Selma and Cahawba, by way of the new bridge on Valley creek.   They have also passed bills which originated in their House, entitled an act amendatory to an act to establish a certain county therein named and for other purposes; and, an act to prevent the Creek Indians from hunting and trapping within the settled limits of this state.   In which they respectfully ask your concurrence.   They have also read three times and passed a bill which originated in their House, entitled an act to authorize the Governor to appoint some suitable person to revise the laws in relation to wills, and the duties and legal accountability of executors, administrators and guardians. In  which they also desire your concurrence: and then he withdrew.

 Mr. Moore of Mad. obtained leave to introduce a bill to be entitled


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an act to provide further for the probate of wills in this state; which was read a first time, and ordered to be read a second time.

Mr. Perry presented the account of John A. Cunningham, jailor of Butler county, which was read, and referred to the committee on accounts.

On motion of Mr. Ross, Resolved,  That the committee on propositions and grievances be instructed to inquire into the propriety of allowing compensation to B. B. Breedin, Esq.  for his services as solicitor in the county court in Mobile county, with leave to report by bill or otherwise. Mr. Perkins moved to amend the resolution by striking out “propositions and grievances,” and inserting in lieu thereof “judiciary;” which was lost.

On motion of Mr. Exum, Resolved, That the judiciary committee be instructed to inquire into the expediency of so amending the law now in force respecting bonds of indemnity, as to provide,  in case a judgment be obtained against a sheriff or other officer, selling under said bond, that by motion at said court, the sheriff of other officer obtain a judgment against the maker of said bond.

Mr. Acklen offered the following resolution: Resolved, That the judiciary committee be instructed to inquire into the expediency of allowing compensation to patrols for their services; which was lost.

Mr. Moore of Jack. to which was referred a bill to be entitled an act to authorize solicitors to swear witnesses to send to the grand jury, reported the same with an amendment, by striking out the third section.   In which report the House concurred.

Mr. Williams moved to amend the first section of the bill by adding the words “attorney general” before the word “solicitor;” which was adopted.   The bill was then read a second time, and ordered to be engrossed for a third reading.

Mr. Ellis presented the records and proceedings of the Circuit Court of Tuscaloosa county, exercising chancery jurisdiction, in the case of Mary Ducksworth against George Ducksworth, for divorce;  which was read, and referred to the committee on divorce & alimony. Mr. Benson obtained leave to introduce a bill to be entitled an act directing in what manner, and in what courts, suits may be brought against the state of Alabama; which was read a first time, and ordered to be read a second time.

Mr. Perry presented the accounts of sundry citizens of Butler county, which were severally read, and referred to the committee on accounts.

Engrossed bills from the Senate of the following titles, to wit: an act to authorize the Governor to appoint some suitable person to revise the laws in relation to wills, and the duties and legal accountability of executors, administrators and guardians; and, an act to prevent the Creek Indians from hunting and trapping within the settled limits of this state, were severally read a first time, and ordered to be read a second time.

Engrossed bills of the following titles, to wit: an act to authorize the field officers of the 46th regiment to form a company of militia in


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Broxton's settlement; an act authorizing certain claims against the state, as well as certificates of state witnesses, to be received in discharge of fines and forfeitures; an act to provide for the payment of petit jurors in certain counties therein named; an act to amend an act, entitled an act to establish a permanent seat of justice in the county of Jackson, and for other purposes; and, an act supplementary to the several acts heretofore passed in relation to the County Court for the county of Mobile, and for other purposes, were severally read a third time and passed. Ordered, that the titles be as aforesaid. Ordered, that the same be sent to the Senate for their concurrence.

Engrossed bill to be entitled an act to emancipate certain slaves therein named, was read a third time. Mr. Harris moved to amend the bill by way of the following engrossed rider: “Provided, that said slaves shall remove out of this state within one year after the passage of this act, and shall not return to reside therein: provided, also, that said slaves shall be subject to the same laws, rules and regulations to which all other slaves are subject during their continuance in this state;” which was adopted. The bill was then passed.

Ordered, That the title be as aforesaid. Ordered, that the same be sent to the Senate for their concurrence.

Engrossed bill to be entitled an act to authorize Romeo Andre to emancipate certain slaves therein named, was read a third time.

Mr. Coopwood moved to amend the bill by way of the following engrossed rider: after the word “security,” “in the sum of two thousand dollars;” which was lost. Mr. Greening then moved further to amend the bill by way of the following engrossed rider: “Provided, that the said slaves shall remove without the limits of this state within twelve months.” Mr. Coopwood moved to amend the amendment by adding the words “and never return to reside therein;” which was carried. The question was then put on the adoption of  Mr. Greening's amendment, which was determined in the negative - Yeas 24, nays 36.

The yeas and nays being desired, those who voted in the affirmative are

Mr. Benson

Davis of Fr.

Harris

Neill

Rhodes

Bell

Dubose

Johnson

Perkins

Smith of Hen

Bradford

Duke

Lawler

Pickens

Smith of La

Coopwood

Ellis

McVay of Laud

Parham

Whitfield- 24.

Coleman

Greening

Martin

Perry

 

Those who voted in the negative are

Mr. Speaker

Barclay

Edmondson

McClung

Powell

Acklen

Crenshaw

Edwards

Montgomery

Ross

Bridges

Craig Coe

Exum

Moore of Mad

Sims

Bailey

Davis of Ja.

Fluker

Moore of Ja.

Terry

Brown

Dale

Heard

McVay of Law.

Williams

Broadnax

Dennis

Jones

Mead

Weissinger

Brasher

Dupuy

Lewis

Massey

Walthall- 36.

The bill was then passed. Ordered, that the title be as aforesaid.

Ordered, that the same be sent to the Senate for their concurrence.

On motion of Mr. Greening, Resolved That the committee appointed on the part of this House, to act with the committee appointed on


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the part of the Senate, to examine the condition of the Bank of the State of Alabama, have leave of absence from this House so long as may be necessary to enable them to discharge the duties assigned to them.

Engrossed bill from the Senate to be entitled an act to change the mode of paying jurors in the several counties in this state, was laid on the table.

Engrossed bill to be entitled an act to repeal in part an act entitled an act to establish the town of Carthage, in Tuscaloosa county, was read a second time, and ordered to be read a third time.

Joint resolutions proposing sundry amendments to the constitution of the state of Alabama, were taken up. Mr. Davis of Fr. Moved that it be referred to a committee of the whole house on Monday next, which was carried.

A bill to be entitled an act for the relief of Theophilus L. Toulman, tax collector for the county of Mobile for the year 1822--

Ordered, that the bill, together with the petition of the said Theophilus L. Toulman, be referred to the committee on accounts.

Bills of the following titles, to wit: an act to authorize the county court of Wilcox county to levy an extra tax: an act to keep in force an act for the registration of deeds, grants &c.: an act better to provide for leasing the sixteenth section therein named: an act to establish the militia and patrol laws of this state as digested by Thomas W. Farrar, and for printing and distributing the same: and an act more effectually to secure the compensation allowed by law to jurors therein mentioned, were severally read a second time, and ordered to be engrossed for a third reading.

A bill to be entitled, an act to alter the time of holding the county courts of Lawrence and Limestone counties, was read a second time. Ordered, that the bill together with the petition of the members of the bar of the fourth judicial circuit, be referred to a select committee, consisting of Messrs. Crenshaw, Terry, and McVay of Laud.

A resolution proposing alterations in the constitution, so as to have biennial instead of annual sessions of the General Assembly was read a second time, and referred to a select committee, consisting of Messrs. Mead, McVay of Laud. and Davis of Franklin.

A bill to be entitled, an act explanatory of an act entitled an act to provide for the election of justices of the peace and constables, passed December 31st, 1822, was read a second time, and referred to a select committee, consisting of Messrs. Moore of Jackson, Perkins and Walthall.

Mr. Perry obtained leave to introduce a bill to be entitled an act authorizing the election of certain officers in the town of Greenville, in Butler county, which was read a first time, and ordered to be read a second time.

Joint resolutions, proposing sundry amendments to the constitution of the United States, was read a second time, and ordered to be engrossed for a third reading.

Engrossed from the Senate, entitled an act to repeal an act

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passed on the 17th day of December, 1819, entitled an act to regulate the rate of interest, and for other purposes, was then taken up.

Mr. McVay of Laud. moved that the bill be referred to a select committee; whereupon Messrs. McVay of Laud. Davis of Frank. Craig and Moore of Mad. were appointed said committee.

Mr. Greening asked leave of the House to offer the following protest, which was granted.

The undersigned members of the House of Representatives, who voted in the minority on the adoption of the preamble and resolution, denying to Andrew Wills, the Editor of the Huntsville Democrat, the privilege of retaining his seat within the bar of this House, as one of its reporters, claim the indulgence extended to them by the constitution of their country, of spreading upon the journals of the house, the reasons that influenced them in their opposition to the adoption of the preamble and resolution. In doing so they wish not to interpret the motives of others, or to permit their own to be misrepresented. They desire only to place the resolution in its proper light before the public which can only be done by a free and full expression of the reasons that influenced them. It is important to ascertain the nature of the offence, if any offence was committed by Mr. Wills, so far as it is connected with the privileges of the House of Representatives, or its members. The 19th section of the 3d article of the constitution of Alabama, exempts members of the General Assembly from arrests in all cases, except for treason, felony, or breaches of the peace; and the violation of any of the privileges exercised to members of both branches of the legislature, would consequently be considered as a violation of the privileges of the House of Representatives.  The members of the General Assembly possess no privileges except such as are secured to them by the constitution.  As individuals, by the section of the constitution referred to, they are exempted from arrest, except in particular cases. And the construction to be placed upon this section cannot be so enlarged as to extend to every indignity that may be offered to a member.   Indeed, no indignity that might be offered, except an actual arrest, could be considered as a violation of the privileges of the House or its members.

The undersigned with, therefore, to be understood as assuming the position, that no words, however abusive, can amount to a violation of the privileges of a member; and they humbly consider that no proper construction can be placed upon the constitution, which would lead to a different conclusion. If the facts of this case, as disclosed by the preamble to the resolution, or by the statement of Dr. Moore, are tested by the rule here laid down, it must be considered that the conduct of Mr. Wills does not amount to a breach of the privileges of the House or its members. If the offence then of Mr. Wills does not amount to a violation of the privileges of a member of the House, it is no offence punishable by the House, unless it can be brought within the meaning of the seventh section of the third article of the constitution. This section provides that each House, during the session, may punish by imprisonment any person not a member, for disrespectful or disorderly behaviour in its presence, or for obstructing any of its proceedings; provided that such imprisonment shall not at any one time exceed forty-eight hours. The phraseology of this section is such, that no room is left for any difference of opinion, as to the proper construction to be placed upon it. The House of Representatives is here vested with the power of inflicting punishment in all cases of disorderly behaviour, committed in its presence during the session, that may tend to obstruct the proceedings of the House.   The offence of Mr. Wills, for which the resolution provides a punishment, was an indignity offered to the feelings


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of a member, if such it can be considered, at the distance of several hundred yards from the state house, and while the House was not in session. It was not offered in the presence of the House while in session, and was therefore not calculated to obstruct the proceedings of the House, or to impede the progress of legislation.   The power delegated to the General Assembly, by the section of the constitution now under consideration, was granted upon the principle of self-preservation, only so far as was necessary to enable the legislature to proceed with the business of legislation. The convention foresaw the necessity of clothing the representatives of the people with this power; if it had not been delegated, tumult, disorder, and violence, might obstruct their proceedings, and virtually destroy the legislative department of the government. Will it be said that the injury done to the feelings a member at a distance from the state house, and while the house was not in session, was such an offence, for which the offender could be punished by the house of representatives, in the exercise of the powers delegated to the general assembly by this section of the constitution?   Most assuredly not. The undersigned would cheerfully consent to any liberal or enlarged construction, consistent with the object of the convention, that may be placed upon this section; and still the offence of Mr. Wills cannot be brought within its meaning. They would, for the purpose of argument, acknowledge the correctness of the construction, that the legislature could punish every attempt that might be made to influence the conduct of a member, as tending to obstruct their proceedings, although such attempt should not be made in their presence while in session; and yet by referring to the testimony, it must be perceived that Mr. Wills could not be punished consistently with the provisions of the constitution. The evidence does not disclose the fact, that any effort was made by him to influence the conduct of Dr. Moore as a member. He spoke of the motives by which the member was influenced, on an occasion that had already transpired, and which could not possibly recur. In doing so, the conduct of the representation from Madison could not be influenced by the denunciations of Mr. Wills. But it has been said in argument, that Dr. Moore was directly charged with having voted on the occasion referred to, under the influence of factions considerations and feelings; and that a charge of this nature, under such circumstances, was calculated to control his conduct on subsequent occasions as a member. This argument would carry with it great force, if in truth a faction did exist in this body, from which Mr. Wills considered it important to withdraw the member on future occasions. But as the undersigned have seen nothing to justify a belief that a combination of this kind does exist here, they cannot perceive the force of the argument. The charge of Mr. Wills, therefore, cannot be considered as an expression of his feelings, in relation to a subject that had already been acted upon without any desire or expectations on his part, that the subsequent conduct of Dr. Moore would be influenced by it. Admitting the construction then to be correct, that the house of representatives possess the power to punish every effort that may be made to influence the conduct of a member, Mr. Wills was not amenable in this instance to the House, because his conduct cannot be said to have been disrespectful or disorderly to the House while in session, or calculated to influence the conduct of a member. It has been said in argument, that the conduct of Mr. Wills amounted to a violation of the privileges of the House, or was an insult offered to its dignity.  The considerations and reasons already presented, in relation to the conduct of Mr. Wills so far as it may be considered as a violation of the privileges, or an insult offered to the House, have operated upon the undersigned members, with conclusive force; and have compelled them, from a sense of duty, to resist the adoption of the resolution. In the exercise of municipal powers, the House of


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Representatives must be confined within the limits prescribed by the constitution, and can exercise no power that is not expressly delegated. In all cases of punishment for contempt’s or breaches of privilege, the House must exercise a municipal power, a power that properly belongs to the judicial tribunals; but which must be exercised by the House of Representatives, in order to preserve the purity and powers of legislation. For this purpose no power can be properly exercised that is not expressly delegated. In the ordinary business of legislation, their powers are plenary: and as the Representatives of a sovereign people, they are permitted to exercise all powers that are not expressly prohibited; but in adopting the resolution now under consideration, the House acted as a municipal tribunal, and inflicted punishment in a case where it is humbly conceived they have no jurisdiction.

The powers of this government have been confided to three departments, separate and distinct from each other. Those which are legislative have been confided to the General Assembly; those which are executive to the chief magistrate of the state; and those which are judicial, to the courts of judicature. If either of these departments exceed their limits by the exercise of powers that have been vested in another department, the constitution is violated.

In illustration of the views of the undersigned on this subject, and in reply to the arguments that have been based on the 8th section of the Declaration of Rights, it may be proper to notice particularly this section of the Constitution: - By this section the right is secured to every citizen, to speak, write, and publish, freely, his sentiments on all subjects; provided that he shall be responsible for the abuse of this liberty.

If Mr. Wills, by impugning the motives of the representative from Madison, abused this liberty, he was not responsible to this house --  he was responsible only to the injured party in the courts of justice.  And the adoption of this resolution cannot be justified by the argument attempted to be drawn from this section of the constitution, that Mr. Wills was responsible to this House. In entertaining jurisdiction therefore, of this case, under the circumstances, a power was exercised that has been confined to another department of the government. If any abuse that may be lavished on a member of this house, or on the house collectively, would give to us the jurisdiction of the offence, or enjoy a right that has perhaps never been exercised by any legislative body in the union; except in the solitary case of the editor of the Aurora, in the days of proscription. But this case has furnished no precedent or authority on similar occasions, even in the body where it was adopted, in latter times.

A minority of the present Senate of the United States has been denounced as a factious opposition to the present administration; and this August body has not offered to insult the rights of the people of this nation, by any effort to punish the offenders. If the case of the editor of the Aurora had been considered as furnishing a safe precedent, the feelings of the Senate would not have been outraged by the vile slander that have been lavished upon that illustrious body.

It have been said that a challenge was given in the interim between the representative from Madison and Mr. Wills, by the latter to the former- and this has been urged by some as a conclusive argument in favor of the adoption of the resolution. There is but one instance, perhaps, to be found on record, where a legislative body has determined that a challenge given to a member amounted to a breach of privilege. This decision was made in the House of Representatives of the United States, at a period in our history, when the two great political parties throughout the union were struggling for the scepter of power, by the prostration of their adversaries. It may be well to enquire if their decision be recognized as good authority at the present day, why the


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senate of the United States did not assert their privileges when the challenge was recently given to one of the Senators from Virginia? It will scarcely be said that they were prevented from maintaining their rights by sentiments of delicacy towards the present administration. The undersigned have adverted to this argument in support of the resolution, only to show the circumstances under which the decision was made in the house of representatives of the United States. In the case now under consideration, the evidence does not show that any challenge was given, or intended to be given. It was only a free and full expression of the sentiments of Mr. Wills, in relation to the supposed conduct of Mr. Moore, accompanied by a declaration, that he considered himself responsible for what he had said, and an avowal of his readiness to meet Mr. Moore in any manner that he might suggest, if he felt himself aggrieved. It cannot therefore be considered as a challenge; and if the expression of Mr. Wills should be considered as a challenge, it certainly cannot be regarded as the violation of any of the privileges secured to the members of the legislature by the constitution. But it has been said, that the resolution proposes no punishment, that it was only intended to withhold a privilege that had been previously granted, and which was exercised at the pleasure of the House. If it was not intended by the resolution to punish Mr. Wills, then the time of the house has been consumed without the hope of obtaining any design or object. It will not seriously be contended, that the revocation of the act of courtesy was not intended to operate as a punishment.- Is not the formal revocation of privilege a punishment? If the reputation of this individual should be prostrated by the resolution, would it not be a punishment? A punishment too, without a hearing or a trial! Does not the report of the committee show that Mr. Wills desired permission to substantiate the truth of the charges made by him? It is true, that this evidence was properly rejected; but it is no less true, that it shews that the resolution ought not to have been adopted. And why has it been adopted? In what has the offence consisted? A citizen of this country, in the exercise of his constitutional rights, has been independent enough to express his opinion of the conduct of his immediate representative- and for this he is to be punished! The undersigned protest against such punishment for such an offence; and to vindicate the course which their duty and their conscience have led them to pursue, they avail themselves of their constitutional right of spreading their reasons on the journals of this house. (Signed)           Eldridge S. Greening, Nimrod E. Benson, John Martin, Charles A. Dennis, Bartlett Smith, James Davis, Sam'l Craig, Hugh McVay, Zadock McVay, Thomas Coopwood, Joseph Pickens, Sam'l B. Moore, William W. Parham, William H. Duke, John Massey, Hervey W. Ellis, William Acklin, jr. David Bradford, John W. Bridges, Philip Coleman, Geo. Weissinger, John Brown, John M. Dupuy, Bernard Johnson, Elias H. Dubose.

And then the House adjourned till tomorrow morning, 10 o'clock.