TUESDAY, December 18, 1827.

The House met pursuant to adjournment.

Mr. Greening from the Judiciary committee to whom was referred the bill to be entitled "an act to permit executors and administrators to sell the real estate of their testators or intestates where it may be for the benefit of the heirs, Reported an amendment to the bill by striking out all after the enacting clause and by substituting in lieu thereof another bill: in which amendment the House concurred.

Mr. Forrest presented the petition of sundry inhabitants of Jefferson county, praying the passage of a law allowing Jurors additional compensation; which was read and referred to a select committee consisting of Messrs. Forrest, Brown and Weisinger.

Mr. Walker presented the report of the commissioners appointed to ascertain the diminished value of the town property in the town of Cahawba; which was read and referred to the committee on propositions and grievances.

Mr. Smith of Clarke. presented the petition of sundry inhabitants of Clarke county, praying the passage of a law to extend the limits of Clarke county; which was read and referred to the committee on county boundaries.

Mr. Stone presented the petition of John Fowler, praying an extension of an act passed 26th December 1822, for his benefit; which was read and referred to a select committee consisting of Messrs Stone, Ross and Sibley.

Mr. Lawler presented the petition of Robert W. Henry praying compensation for guarding prisoner; which was read and referred to the committee on propositions and grievances.

Mr. McRae of mon. presented the memorial of the Grand Jury of Monroe county, praying an alteration in the law on the subject of punishing slaves charged with capital offences; which was read and referred to the same committee as the one from Washington county on that subject.

Mr. Ross presented the petition of sundry citizens, merchants, &c. of the city of Mobile, praying additional compensation to the public Weigher in said city; which was read and referred to a select committee consisting of Messrs. Ross, Harris, Wiggins, Bridges and Weisinger.

Mr. Smith of Clarke, presented the petition of sundry inhabitants of Clarke county, praying to incorporate a company by the name of the "Suggsville Cavalry Company;" which was read and referred to the military committee.

Mr. Acklen presented the petition of the President and others of the town of Whitesburg, praying to be exempt from working on roads without the limits of said town; which was read and referred to a select committee consisting of Messrs. Acklen, Moore of mad. and Vining.

Mr. Speaker laid before the House the supplemental return of the census of Limestone county; which was read and laid on the table.

Mr. Ellis from the committee on enrolled bills, Reported that the committee have examined and found correctly enrolled, bills of the following titles to wit: an act to amend an act entitled an act excluding from suffrange, serving as jurors, and holding offices, such persons as may be convicted of bribery, forgery, perjury, and other high crimes and misdemeanors, which originated in the Senate: an act to amend an act to authorize


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clerks and magistrates to collect costs in certain cases: an act to authorize the sheriffs of Walker, Dale and Covington counties to execute precepts issued by Justices of the peace, which originated in this House.

Mr. Walker from the select committee to whom was referred a bill to be entitled “an act to establish certain election precincts therein named” Reported the same with an amendment; which was concurred in by the House. Mr. Vining moved to amend the bill by adding thereto ad additional section; which was carried. Mr. walker moved to amend the bill by adding thereto an additional section: which was carried. Mr. Moore of Jack. moved that the bill be recommitted to the same committee - which was carried. Mr. Walker moved that Mr. Moore of Jack. Be added to said committee: which was carried.

A message from the Senate by Mr. Crabb.

Mr. Speaker - The Senate in pursuance of the recommendation of the committee of conference, recede from their disagreement to the amendment made by your Honorable body to the bill entitled, an act for the relief of William Ferguson.

They have read three several times and passed bills which originated in their House entitled, an act more effectually to prevent frauds, and fraudulent conveyances, and for other purposes; and an act concerning the owners and keepers of mills, and other water works, in which they desire your concurrence.

They have also passed a bill which originated in the House of Representatives entitled, an act relative to offsets before Justices of the peace, and for other purposes; and then he withdrew.

Mr. Forrest from the select committee to whom was referred the bill from the Senate entitled, an act to amend an act entitled an act to incorporate the town of Elyton in the county of Jefferson, passed the 20th December 1820: Reported the same with the following amendments viz. in the 4th line of the 1st section between the words, “one” and percentum, insert the word quarter, in the 13th line of the first section strike out the words “one dollar” and insert 25 cents in the 23d line of the first section strike out the words “one dollar” and insert twenty five cents, which was concurred in by the House.

Mr. Tarver from the select committee to whom was referred the petition of the members composing the medical board from the district of Cahawba, reported a bill to be entitled, an act to change the place of holding the medical board, for the district of Cahawba, which was read a first time and ordered to be read a second time on tomorrow.

Mr. McVay of Laud. offered the following resolution: Resolved, that there shall be no more business introduced into this House after Monday next. Mr. Terry moved that the resolution lie on the table, which was carried, yeas 38-- nays 20.

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

Mr. Speaker, Acklen, Anderson, Bell, Bradford, Brown, Broadnax, Bonnell, Clark, Collier, Conner, Daniel, Davis, Dennis, Duke, Ellis, Forrest, Jack, Lawler, Lewis, Martin, Massey, McRae of Frank. Moore of Jack. Perkins, Price, Richardson, Ross, Russell, Stone, Tarver, Terry, Vaughan, Vining,Walker, Walthal Ward, Weisinger, 38.

Those who voted in the negative are,

Mr. Bridges, Colgin, Cook, Craig, Durrett, Edmondson, Harris, Higgins, McVay of Laud. McVay of Law. McRae of Mon. Moore of


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Mad. Rainey, Rather, Robertson, Sargent, Sharp, Sibley, Smith of Mad. Wiggins- 20.

Bills of the following titles to wit. A joint resolution proposing amendments to the Constitution of the state of Alabama.

An act to authorize the Judge of the county court of Monroe county and the commissioners of roads and revenue, to lay a special tax for the purpose therein mentioned.

An act for the relief of Henry T. Anthony, An act for the relief of Dugald McFarlane. An act for the relief of William Jones of Walker county. An act to repeal an act passed 23d December 1824, concerning divorce and for other purposes.

An act to authorize the raising of three thousand dollars, for the purpose of building a bridge across Shoal creek, were severally read a second time and ordered to be engrossed for a third reading on to morrow.

Mr. Lawler moved to take from the table the engrossed bill entitled, an act to alter the boundary line between the counties of Shelby and Autauga, which was carried. Mr. Terry moved to amend the amendment made by the Senate, by striking out the word “thirteen,”  which carried, the amendment then as amended was concurred in by the House.

Engrossed bills from the Senate of the following titles to wit. An act concerning the owners and keepers of mills and other water works.

An act more effectually to prevent frauds and fraudulent conveyances, and for other purposes were severally read a first time and ordered to be read a second time an tomorrow.

Mr. Jack obtained leave to introduce a bill to be entitled an act to authorize sheriffs to take bonds in certain criminal cases, which was read a first time and ordered to be read a second time on to morrow.

Mr. Harris obtained leave to introduce a bill to be entitled, an act to amend in part an act entitled an act to reduce into one the several acts concerning roads bridges ferries and highways which was read a first time and ordered to be read a second time on tomorrow.

Mr. Bridges obtained leave to introduce a bill to be entitled, an act to repeal in part and amend an act respecting slaves passed March 6th 1825, which was read a first time and ordered to be read a second time on tomorrow.

A bill to be entitled, an act to render overseers of roads accountable for certain monies coming into their hands. Mr. Craig moved that the bill lie on the table until the first day of April next which was carried.

Engrossed bill entitled, an act to amend the 3d section of an act passed at the last session of the Legislature, to compensate the commissioners appointed by the Governor, for ascertaining and marking the permanent boundary line between this State and Georgia, was on motion of Mr. Acklen laid on the table until tomorrow.

Engrossed bill from the Senate entitled, an act for the further relief of securities, was on motion of Mr. Martin referred to the judiciary committee.

A bill to be entitled an act extending the duties of the school commissioners of the 16th sections was referred to the committee on schools colleges and universities, and school and university lands.

A bill to be entitled, an act to provide for ascertaining the wishes of the citizens of Dallas county with regard to the seat of justice in said county, was laid on the table.

A bill to be entitled, an act to compensate Hiram Shortridge for certain


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services rendered the Legislature of this State, was referred to the committee on accounts.

A bill to be entitled, an act to establish the 52d Regiment of Alabama militia, was referred to the military committee.

A bill to be entitled, an act to establish a certain election precinct in Marengo county. Mr. Anderson moved that it lie on the table, which was carried.

Engrossed bill from the Senate entitled, an act to give Justices of the peace, jurisdiction of certain contracts therein named, was read a third time and passed: Ordered that the Clerk acquaint the Senate therewith.

Engrossed bills of the following titles to wit, an act to define the corporate limits of the town of Sparta in Conecuh county, and for other purposes.

An act to authorize the administrators of Daniel Mitchell to make and receive assurances of titles to certain real estate. An act to authorize county courts to alter State roads in certain cases. An act to amend a certain act therein mentioned. An act altering the punishment of forgery and counterfeiting in certain cases, were severally read a third time and 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 for the relief of James Holms, was read a third time and on the question being put, shall this bill pass, it was determined in the affirmative, yeas 41- nays 17.

The yeas and nays being desired, those who voted in the affirmative are Messrs. Speaker, Acklen, Anderson, Bell, Broadnax, Bridges, Bonnell, Colgin, Collier, Conner, Cook, Craig, Daniel, Dennis, Durrett, Duke, Edmondson, Forrest, Harris, Higgins, Kelly, Lawler, Martin, McRae of Mon. Moore of Jack. Rainey, Richardson, Ross, Russell, Sargent, Sharp, Sibley, Smith of Clark. Stone, Tarver, Terry, Vaughan, Walker, Walthal, Ward and Weisinger.

Those who voted in the negative are, Messrs. Bradford, Brown, Clark, Davis, Greening, McVay of Laud. McVay of Law. Massey, McRae of Frank. Moore of Mad. Perkins, Price, Rather, Robertson, Smith of Mad. Vining and Wiggins.

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

Mr. Kelly presented the petition of sundry citizens of Hazlegreen praying the passage of a law to authorize the erection of a Justice of the peace and Constable in said town.

Mr. Vining presented the petition of sundry citizens of said town protesting against the passage of the law, as proposed in the petition presented by Mr. Kelly, the petitions were severally read and referred to the representation from Madison county.

Engrossed bill from the Senate entitled an act relative to the duties of grand juries, was read a second time and ordered to be read a third time on tomorrow.

Engrossed bill to be entitled, an act to repeal in part an act passed 12th day of January 1827, entitled an act to require additional services to be performed by the Judge of the first judicial circuit, was read a third time. Mr. Ross moved to amend the bill by way of the following engrossed ryder. "And be it further enacted, that whenever any Judge in this State shall hold an extra term of the circuit court in pursuance of law, he shall receive in addition to the salary now allowed by law, the


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sum of one hundred dollars for each week he may be so employed to be paid on the certificate of the Clerk of such court, which was lost, yeas 6 -- nays 51.

The yeas and nays being desired, those who voted in the affirmative are, Messrs. Jack, Rainey, Ross, Richardson, Sibley and Stone.

Those who voted in the negative are, Messrs. Speaker, Acklen, Anderson, Bell, Bradford, Brown, Broadnax, Bridges, Bonnell, Clark, Colgin, Collier, Conner, Cook, Craig, Daniel, Davis, Dennis, Durrett, Ellis, Edmondson, Forrest, Greening, Harris, Kelly, Lawler, Martin, McVay of Laud. McVay of Law. Massey, McRae of Frank. Moore of Jack. Moore of Mad. Perkins, Price, Rather, Robertson, Russell, Sargent, Sharp, Smith of Clark, Smith of Mad Tarver, Terry, Vaughan, Vining, Walker, Walthal, Ward, Weisinger and Wiggins.

Mr. Collier then moved to amend the bill by way of the following engrossed ryder "and be it further enacted, that said Judge be allowed in addition to his present salary, the sum of one hundred and seventy five dollars for the extra service required of him by the above recited act, which was lost. yeas 11 nays 49.

The yeas and nays being desired, those who voted in the affirmative are, messrs Speaker, Bonnell, Collier, Greening, Harris, Lewis, Rainey, Ross, Sibley, Stone, and Tarver.

Those who voted in the negative are, Acklen, Anderson, Bell, Bradford, Brown, Broadnax, Bridges, Clark, Colgin, Conner, Cook, Craig, Daniel, Davis, Dennis, Durrett, Duke, Ellis, Edmondson, Forrest, Higgins, Jack, Kelly, Lawler, Martin, McVay of Laud. McVay of Law. Massey, McRae of Frank. Moore of Jack. Moore of Mad. Perkins, Price, Rather, Richardson, Robertson, Russell, Sargent, Sharp, Smith of Clark, Smith of Mad. Terry, Vaughan, Vining, Walker, Walthal, Ward, Weisinger and Wiggins.

The bill was then passed: Ordered that the title be as aforesaid. Ordered that the same be sent to the Senate for their concurrence and ten the House adjourned till half past 2 o'clock.

EVENING SESSION, Half past 2 o'clock.

The House met pursuant to adjournment.

Mr. Ellis moved to take from the table the bill to be entitled an act to locate the seat of justice in the county of Tuscaloosa which was carried. Mr. Jack moved that it be referred to a select committee, which was carried it was then referred to Messrs Jack, Perkins, Ellis, Collier, Weisinger, and Terry.

Mr. Lewis submitted the following report. The committee on the state bank having been instructed by a resolution of the House of Representatives to ascertain whether the President and Directors of the State Bank have determined to erect a banking house, and if so, how far the same has progressed and what amount of money has been expended on the same, and what amount will be necessary to complete it and if any difference of opinion existed among said directors as to the power and expediency of erecting said building to report the reasons of such difference of opinion and that the said committee be required to ascertain whether the President and Directors have any power to erect a banking house, and to purchase real estate for that purpose and whether any necessity exists for the erection of such building and that the President and Directors be required to furnish the information contemplated in this resolution - Beg leave respectfully to present document No. 1. contain-


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ing the views of a majority of the board, document No. 2, signed by Sion L. Perry and A. H. Gazzam, also document No. 3, signed by Benjamin B. Fontaine President. Mr. Lewis from the same committee made the following report. The committee on the state bank being required by a resolution of the House of Representatives, to express an opinion on the power and expediency of erecting a banking house, it is with regret that they are compelled by their honest convictions to differ with a majority of the board of Directors on both of these points. The provision in the charter mainly relied on to sustain the power in question, is to be found in the 13th article of the 9th section of the act of incorporation, which authorizes the President and Directors to purchase, receive possess enjoy and retain to them and their successors, lands, rents hereditaments, tenements goods, chattels and effects of what nature kind or quality so ever and the same to sell &c. These powers are common to and essential properties of every corporate body they appertain with as much effect to a library company or an incorporation of trustees for a county academy, as to a board of Bank Directors: without these essential rights, corporations would not be placed on a footing with a natural person, in the ordinary operation of trade. They furnish to a banking institution particularly frequent means of effectually securing debts due the same in the course of its regular banking transactions, but the committee cannot believe, that the power to purchase real estate for the purpose of erecting a banking house, and of appropriating an indefinite sum one such erection, was ever conveyed in terms so general and in their nature so entirely technical. It is a power but remotely connected with and incident to the main object for which the bank was created, and should therefore, if the state had have intended to dispose of its general Legislative control in relation to this matter have been expressed in language plain and specified. It involves the great power of raising and appropriating revenue so strictly guarded by the constitution that all bills in relation to the same must originate in the House of Representatives.

Implied powers are at all times doubtful in their character, and dangerous in their consequences, sanctioned by precedent they acquire the force of law and frequently terminate in subverting the land marks prescribed for the limitation of the powers of public servants. In the present case if the directory can in any instance foreign to, and unconnected with the regular transactions of the Bank purchase and sell real estate, there is nothing to prevent them from engaging constantly and regularly in an indiscriminate speculation on landed property, they might in pursuance of imaginary schemes of profit vest any quantity of the capitol stock of the bank in buying and improving real estate and when called on to answer for perverting so much capital to purposes, other than the regular transactions of the bank reply that they were authorized to do so by that provision, which gives them the right to purchase and sell real estate, but it is said that the power to build a banking house is not usually given in so many words to banking corporations, that it is invariably exercised as an indisputable right. To entitle this argument to any weight, it must be shewn that a bank established on the same principles as the state bank of Alabama has exercised the same power under a charter containing similar provisions, and that this act has been approved by a competent judicial tribunal, any inferences predicated on analogy between a state bank and a stock bank, must be fallacious. In the case of a state bank, the state being sole owner of the capital it exer-


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cises a controlling influence and supervisor ship over its concerns and directs all its movements except in the regular transactions of banking operations.

All power not expressly conveyed to the Directors the state retains subject to be exercised at the discretion of the Legislature. A state bank is in effect a state treasury, and in the nature of things, a treasurer would have the same right to build a treasure house as the directors would have to build a banking house. To say that a power is incidental to the charter, is nothing more nor less than to say that the Legislature, by refusing to exercise a power known to be absolutely necessary, have by such refusal admitted the right of the directory, to do an act of such absolute necessity, that without it the regular transactions of the bank must be suspended; this proposition is based on the obvious principle, that powers are incidental only when they are essentially and unavoidably necessary and proper to carry some express laws into effect, nothing short of the most rigid necessity, can justify their exercise.

The question then presents itself, did such imperious necessity exist for the erection of a banking house, as that the bank must suspend its regular transactions until such erection? surely not. Then the power is not incidental, because not indispensable to the carrying of an express and substantive power into effect. But it is urged that the danger apprehended from fire, and the expense of house rent, authorized the act.- These are questions going only to the expediency of the measure, and were proper subjects of consideration with the Legislature, who had the undoubted right to legislate on the subject, and who have uniformly, since the establishment of the bank, exercised that right. In a proviso to the 21st section of the 9th article of the act of incorporation the amount to be expended in the erection of a banking house, is limited to eight hundred dollars, till a given time. In the 22d section of an act of the Legislature of 1825, two thousand dollars are appropriated for the removal of the bank to Tuscaloosa- and for providing and fitting up a house suitable for the reception of the same. A part of this appropriation has not been expended, as appears by a report of the comptroller referred to your committee. By an act of the last session of the General Assembly, providing for the erection of a state Capitol the commissioners were bound to have the capitol built on such plan as should be furnished them by the Legislature, such plan was furnished them and a room was therein set apart for a banking room. The plan of building in its nature incapable of being promulgated as other enactments of the Legislature, would not be insisted on as binding on the directory, but for the fact of their admission that it was a matter by them understood and known at the time of building the banking house, to have been in full force under the solemn sanction of Legislative authority, however unwise they might have considered such designation by the Legislature, it was for a power higher than those of the directors or any other known to our government, to have it set aside by a conflicting enactment. Had the power been expressly given by the charter, to the directory to have erected a banking house at pleasure it is believed by the committee, that the above recited act of the Legislature would have fully repealed such provision as no vested rights accrue by the charter to the directors it is always subject to alteration and amendment by the Legislature, and any enactment on the subject is just as binding as the most authoritative provision of the charter. Under this view of the subject the committee feel

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constrained to say, that a majority of the directors have exercised a power which by law they did not possess, and that no sufficient necessity appeared to justify the measure.  In conclusion the committee would beg leave to remark, that while they are charitably disposed to pass over so much of the communication of the majority of Directors, as they consider disrespectful and offensive in character, a due respect for themselves, and the dignity of the house, prompt them to assert in unqualified terms, the right of the Legislature to visit any official delinquency which may occur in the board with the most rigid investigation.

Signed, D. H. LEWIS.

Chairman of the committee on the State Bank.

Mr. Collier then moved that the report together with the accompanying documents lie on the table, which was carried.

Mr. Walker moved to take from the table the bill to be entitled, an act to apportion the Representatives among the several counties in this state, and to divide the state into Senatorial districts, according to the late census, which was carried, the bill was then referred to the committee on apportionment.

Mr. Kelly presented a supplemental return of the census of Madison county, which together with those from Monroe and Limestone counties  were referred to the committee on apportionment.

A bill to be entitled, an act to establish two additional circuits. Mr. McVay of Laud moved that the further consideration thereof be indefinitely postponed, which was lost; yeas 18- nays 42.

The yeas and nays being desired, those who voted in the affirmative are, Messrs. Anderson, Bradford, Brown, Bonnell, Clark, Colgin, Conner, Craig, Durrett, Duke, McVay of Laud. Massey, Rather, Sharp Smith of Clark Walker, Weisinger, Wiggins, 18.

Those who voted in the negative are, Messrs. Speaker, Acklen, Bell, Broadnax, Bridges, Collier, Cook, Daniel, Davis, Dennis, Ellis, Edmondson, Forrest, Greening, Harris, Higgins, Jack, Kelly, Lawler, Lewis, Martin, McVay of Law. McRae of mon. Moore of Jack. McRae of Frank. Moore of Mad. Perkins, Price, Rainey, Richardson, Ross, Robertson, Russell, Sargent, Sibley, Smith of Mad. Stone, Terry, Vaughan, Vining, Walthal, Ward- 42.

Mr. Greening moved that the bill be referred the judiciary committee which was carried, and then the House adjourned until to morrow morning at half past 9 o'clock.