Friday, January 5, 1827.

The Senate met pursuant to adjournment.

Mr. Casey from the select committee to which was referred a bill to be entitled an act to incorporate the Alabama and Tennessee canal company, reported the same as amended. Ordered, that the bill and amendment lie on the table.

Mr. Casey presented the accounts of the door-keeper of the Senate; which were referred to the committee on accounts and claims.

Mr. Jackson, from the special committee to which was referred a bill to be entitled an act to amend an act, to establish the Bank of the State of Alabama, approved Dec. 20th, 1823, reported the same as amended; a part of which were concurred in, and a part disagreed to. Ordered, that the bill be read the third time to-morrow.

Mr. Bagby from the select committee to which was referred the communication from the Governor of the 1st inst. containing his reasons for withholding his assent to the bill entitled an act authorizing titles to the


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lands and town lots given to the state by the citizens of Tuscaloosa, to be made to the Governor for the use and benefit of this state, asked to be discharged from the further consideration thereof; which was granted. The reasons of the Governor for withholding his assent to the bill are as follows:

EXECUTIVE DEPARTMENT, Jan. 1, 1827.

The Hon. the President and members of the Senate:

Gentlemen: I beg leave to return to your honorable body the bill which originated in your house, entitled, "an act authorizing titles to the lands and town lots, given to the state by the citizens of Tuscaloosa, to be made to the governor for the use and benefit of the state;" with the objections which, in the opinion of this department, apply to the said bill; on account of the legal implication and construction, which the present form of the bills admits.

The bill seems to set forth in terms clear and unequivocal, both in the preamble and first enacting clause, the result and consummation of a contract entered into, between the authority vested with the power to remove the seat of government, and with the permanent establishment of it of the one part, and certain citizens of the state of the other part;- in which contract, the first named party gave as a consideration, "the removal to & the permanent location of the seat of government in the town of Tuscaloosa;" & the other party gave, in return for such consideration, 'their obligations,' to convey certain lands & town lots to the state. The words used have an acknowledged legal acceptation & are legally appropriated to set forth a full and perfect contract. The words alluded to are the following, the connection of which will be seen by reference to the bill; i. e. - "who have entered into obligations for the conveyance of certain lands and town lots to the state of Alabama, in consideration of the removal to, and permanent location of the seat of government of said state, in the town of Tuscaloosa." But if this be a contract, the general assembly, which is the power vested with the authority to designate by law, the permanent seat of government, and which the constitution declares shall not be changed after such designation, have no power to enter into contracts for that or any other purpose, but by their own legislation as legislation is the only mode in which the sate can become a party to contracts; and then, either by the operation of law itself, or the agencies which may be created under it. The act establishing and permanently locating the seat of government for the state of Alabama, pursuant to the "twenty-ninth section of the third article of the Constitution," gives no intimation of consideration given, or authorized to be given by the state, as the foundation of the obligations into which any had entered, to convey property to the state; and there is no law authorizing any contract on this subject; but on the contrary, the matter appears to have created on those grounds of right, policy and convenience, which must be supposed to govern all law. The present bill, therefore, must have the effect, however remote from the design of it, to acknowledge, ratify and confirm obligations alleged to have been entered into, for a consideration alleged to have been received from the state, viz: the removal to, and permanent location of the seat of government of said state, in the town of Tuscaloosa; and by ratifying the obligations, must ratify the consideration given for them, and thus sanction a contract by which the parties reciprocally give and receive for their mutual benefit. If no contract with these conditions and stipulations have heretofore been entered into, (and this cannot but be the case, for there was no law to authorize a contract,) the present bill, in the form which it now assumes, is itself that contract- acknowledges the preparatory steps which have been taken, and accomplishes its complete efficiency and binding obligation on the respective parties.

In conformity to these views, the present bill is considered an act implying the obligation of a contract in which there are contracting parties, the state of Alabama, and certain citizens of the state - in which the state of Alabama gives us a 'consideration' to the other contracting party, "the removal to, and permanent location of the seat of government of said state in the town of Tuscaloosa;' and


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the state of Alabama receives in return, 'the conveyance of certain lands and town lots to the state.' The stipulations of the contract on the part of the state must be liberally complied with; the removal to, which has already been complied with; and the remaining stipulation, " the permanent location of the seat of government in the town of Tuscaloosa," must continue to be binding on the state as their contract, and for which they are to receive a consideration which is deemed to be valuable, and an equivalent for what the state is required to perform. The permanent seat of government has been designated by law, and that law is sustained by the higher sanctions of the constitution; but the present bill seems to involve with these high sanctions the obligation of a contract, and refers to the date of that contract by strong implication, to the period which the seat of government was removed and permanently established. It would claim also from its expressions to be supplemental, and necessarily incident to that transaction. The constitution has made the location of the seat of government, as stable and unchangeable as any of its most vital provisions; and this no doubt will be esteemed by all a sufficient guard to secure the policy of the measure; but a contract, or a law implying the obligation of a contract, will continue to be binding on the community, on good faith and constitutional law, under every change of the constitution itself, and under every exigency of even the general wishes, interests and convenience of the people. The doctrine is maintained by the courts of the country, that a law implying the obligation of a contract cannot be repealed without consent of parties. I cannot doubt but that this will be your opinion, as it is my own also, although individuals of high attainments may have arrived at a different conclusion. It is deemed inexpedient to compromit by contract express, implied or inadvertent, any measure which may safely rest on the foundation on which the constitution has placed it. The object of the general assembly may be attained, it is believed, by such verbal modification of the bill as will not admit of the construction of which it is now supposed to be susceptible. I feel great reluctance to delay your time in making a review of your proceedings; but as I have supposed that the legal construction of the bill may go beyond the objects and intention of the general assembly, I have permitted this consideration to determine me, and which can labor under no other objection than that of having been mistaken, or unnecessary; of which you are the competent judges.

I have the honor to be, most respectfully, your obedient servant,

JOHN MURPHY.

The Senate then proceeded to reconsider the bill entitled, an act authorizing titles to the lands and town lots given to the state by the citizens of Tuscaloosa, to be made to the governor for the use and benefit of the state, together with the governor's objections thereto.

The question was put - "shall the bill pass?" and determined in the affirmative by a majority of the whole number elected to the senate. Yeas 12- Nays 6.

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

mr. President Clay Crabb Jackson Merriwether Shackleford
Brown Gaines McCamy Miller Powell Skinner

Those who voted in the negative are,

mr. AbercrombieAshe Casey Irwin Jones Sullivan - 6

Ordered, That the bill together with the governor's objections be reported to the house of representatives.

The following communication was received from the governor by mr. Aiken.

EXECUTIVE DEPARTMENT, Jan. 4th, 1827.

The Hon. the President and members of the Senate:

Gentlemen- I beg leave to recommend that the militia laws be so changed, as to make it the duty of the major generals to detail the courts martial to decide the contested elections of brigadier generals in their several divisions. Delays which cannot be accounted for, have occurred in detailing a court to decide a contested election of brig. gen. in the 13th brigade. In that brigade there was a contested election of Brig. in the year 1825; and a court martial decided that the election was void.


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A new election in 1820 was ordered & held & the election was again contested. Several applications have been made to the adjutant general to detail a court; but from causes unknown to this department, no such detail is yet known to have been made. It is believed, that it would be more convenient, and less liable to injurious delays, as in the present instance, should the power to detail courts in such cases be vested in the major generals.

I have the honor most respectfully to be your obd't serv't.

JOHN MURPHY.

Ordered, That the communication be referred to the military committee. Ordered, That mr. Jackson be added to the military committee.

Mr. Powell, from the joint committee on enrolled bills, reported as correctly enrolled, an act to authorize Ebenezer Byram to sell a certain tract of land on the terms and conditions therein mentioned: an act for the improving the road leading from Blakely to the upper line of Baldwin county, by the way of Durant's" an act to divorce John Hamblin from Hannah Hamblin: an act to incorporate the Tuscaloosa library company: an act to divorce Morgan Buck from Lavinia Buck: an act authorizing the citizens of Somerville to elect a constable - all of which were accordingly signed by Mr. President.

A message from the House of Representatives by Mr. Vandyke: Mr. President- The house of representatives recede from their amendment to the bill entitled an act to prevent the Creek Indians from hunting on lands within the settled limits of this state, by striking out the word 'creek' wherever it occurs in the bill. They concur in the amendment made by the senate to their amendment to said bill. They have passed a bill which originated in the senate, entitled, an act explanatory of an act entitled an act to provide for the election of justices of the peace and constables, passed Dec. 31, 1822. They have also passed bills which originated in their house, entitled- an act to authorize the school commissioners of the 7th township of range 13, to lease the sixteenth section in said township: an act to vest in the county court of Covington county the powers heretofore exercised by the commissioners of said county, and for other purposes: an act to establish a road from Montevallo to Greensborough: an act to incorporate the town of Pikeville: an act to authorise James McDavid to emancipate certain slaves therein named: an act to repeal an act incorporating the town of Rodney in Washington county: an act amendatory to an act passed on the 14th January, 1826, entitled an act to authorize Wm. H. Ragsdale and his associates to turnpike a road therein specified; an act to put a part of Byler's road under the jurisdiction of the county court of Tuscaloosa: an act amendatory of the laws now in force on the subject of bail in civil cases: an act providing for the compensation of B. B. Breden: an act to authorize executions and attachments to be levied on growing crops in certain cases: an act to require additional services to be performed by the judge of the first judicial circuit in this state; an act for the relief of defendants in certain cases; an act to exempt the members of the hook and ladder company in the city of Mobile from militia and patrol duty; and for other purposes; and an act to repeal in part an act entitled an act to appoint commissioners to lay out two roads leading from the ford on line creek, the one to Coffeeville, the other to Tuscaloosa, passed Dec. 31st, 1822. In all of which they desire your concurrence.

A bill entitled an act amendatory to an act passed on the 14th Jan. 1826, entitled an act to authorize Wm. H. Ragsdale, and his associates to turnpike a road therein specified, was read; and the rule requiring bills to be read on three several days being dispensed with, it was read the second time, and referred to a select committee, consisting of messrs. Clay, Skinner and Abercrombie, to consider and report thereon.

Bills from the House of Representatives, entitled an act to require additional services to be performed by the Judge of the first judicial circuit in this state; an act to exempt the members of the hook and ladder


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company in the city of Mobile from militia and patrol duties, and for other purposes; an act for the relief of defendants in certain cases; an act providing for the compensation of B. B. Breeden; an act amendatory of the laws now in force on the subject of bail in civil cases; an act to repeal an act incorporating the town of Rodney in Washington county; an act to authorize James McDavid to emancipate certain slaves therein named; and act to incorporate the town of Pikeville; an act to authorize executions and attachments to be levied on growing crops in certain cases; an act to establish a road from Montevallo to Greensborough; an act to vest in the county court of Covington county the powers heretofore exercised by the commissioners of said county, and for other purposes; and an act to authorize the school commissioners of the seventh township, of range thirteen, to lease the sixteenth section in said township, were severally read the first time, and ordered to a second reading to-morrow.

A bill to be entitled an act to repeal in part an act entitled an act to appoint commissioners to lay out two roads leading from the ford on Line creek, to one to Coffeeville, the other to Tuscaloosa, passed Dec. 31st, 1822, was read the first and second time, and referred to a special committee, consisting of Messrs. Abercrombie, Clay and Skinner, to consider and report thereon.

A bill to be entitled an act to put part of Byler's road under the jurisdiction of the county court of Tuscaloosa, was read the first time, and ordered to lie on the table till the first day of June next.

Mr. Crabb introduced resolutions instructing our Senators and requesting our Representatives in Congress to use their endeavors to procure an equal extension of the national judicial system to the western and south-western states of the union; which was read the first and second time, and ordered to be engrossed for a third reading to-morrow.

Mr. Clay, from the select committee to which was referred a bill to be entitled an act amendatory to an act passed on the 4th of January, 1826, entitled an act to authorize Wm. H. Ragsdale and his associates to turnpike a road therein specified, reported the same as amended; which was concurred in. Ordered, that the bill be read the third time to-morrow.

Mr. McCamy moved to reconsider the vote of the Senate on the question to postpone indefinitely the bill entitled an act to regulate appointments by the judges of the county courts, and for other purposes, which was carried. Ordered, that the bill be referred to a select committee, to consist of messrs. Jackson, Skinner and McCamy, to consider and report thereon.

Ordered, that the bill entitled an act to authorize Wiley Harris to emancipate slaves Jim and George, lie on the table.

Mr. Jackson moved to reconsider the vote of the Senate ordering to a third reading to-day the bill entitled an act to repeal an act entitled an act to fix the time for convening the General Assembly of the state of Alabama, passed Dec. 6, 1821; which was carried. Mr. Jackson then moved to strike out "the first," and insert "the second," so as to provide that the General Assembly shall meet on the second instead of the first Monday in November; which was carried. The bill was then read the third time and rejected.

A bill to be entitled an act appointing a mode in which the site for


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the state capitol shall be selected, was read the third time, amended by way of rider, and passed. Ordered, that it be returned to the House of Representatives.

A bill to be entitled an act making appropriations for the year 1827, was read the second time, amended by the addition of a section, on Mr. Jackson's motion, and ordered to a third reading to-morrow.

A bill to be entitled an act to compensate Reuben Chapman for certain services therein mentioned; an act to authorize Edward Sims and his associates to open a turnpike road therein named; an act reducing the price of the Digest of the laws of Alabama; an act to amend in part an act for the relief of Wm. McDaniel, passed 3d January, 1825; an act for the relief of Charles A. Henry; an act to authorize the raising by lottery a sum of money for purposes therein specified; an act for the relief of the securities of John Archer, deceased; and, an act to incorporate the Pikeville library company, were severally read the third time and passed. Ordered, that the bills be returned to the House of Rep.

A bill to be entitled an act to authorize William Waller to manumit certain salves therein named, was read the third time, and rejected.

A bill to be entitled an act to authorize David Leach to emancipate certain salves therein named, was read the third time, and rejected.

A bill to be entitled an act to define the boundary line between Shelby and Autauga county, was read the third time, and referred to the committee on county boundaries to consider and report thereon.

Resolutions instructing our Senators and requesting our Representtives in Congress to endeavor to procure the passage of a law establishing a land office at Bellefonte in Jackson county, were severally read the second time, and on the question, shall the resolutions be read the third time to-morrow? it was determined in the affirmative- yeas 9, nays 8.

The yeas and nays being desired, those who voted in the affirmative are, Mr. President, Ashe, Brown, Crabb, McCamy, Merriwether, Powell, Shackleford and Skinner.

Those who voted in the negative are, Messrs. Abercrombie, Casey, Clay, Jackson, Irwin, Jones, Miller and Sullivan.

Memorial to the Congress of the United upon the subject of a donation to the La Fayette academy in the village of La Grange, was read the second time, and referred to a select committee, to consist of Messrs. Shackleford, Jackson and Brown, to consider and report thereon.

A bill to be entitled an act to locate the university of Alabama, was read the second time. Mr. Abercrombie moved that the bill lie on the table till the first day of June next, which was lot - yeas 8, nays 8.

The yeas and nays being desired, those who voted in the affirmative are, Messrs. Abercrombie, Ashe, Casey, Irwin, Jones, Merriwether, Shackleford and Sullivan. Those who voted in the negative are, Mr. Pesident, Brown, Clay, Crabb, Jackson, McCamy, Miller and Skinner.

Mr. Abercrombie, from the committee on county boundaries, made the following report:- The committee on county boundaries, to which was referred the petition of sundry citizens of Bibb county, praying the annexation of a part of Tuscaloosa county to Bibb, and also the petition of sundry citizens of Tuscaloosa county, residing in Hill's settlement, praying to be added to Bibb county, have had the same under consideration, and directed me to report, that the prayer of the petitioners is reasonable, and ought to be granted, inasmuch as the addition of


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that part of Tuscaloosa county, known as Hill's settlement, to Bibb county, would remove all doubt as to the want of sufficient territory in Bibb, to form a county of the size required by the constitution, and would not reduce Tuscaloosa below its constitutional extent of square miles. The convenience of the people residing in Hill's settlement would also be consulted by the adoption of the measure proposed; but from the late period of the session, your committee are disposed to recommend the postponement of the further consideration of the subject till the next session; and ask to be discharged therefrom; which was agreed to.

And then the Senate adjourned till to-morrow morning at 10 o'clock.