Mr. Hallett presented the petitions of Registe Bernody, Harriet Baudin, and Silvas Nicholas, of Mobile County, praying the passage of a law authorizing the emancipation of certain slaves therein named which was read, and referred to a select committee, consisting of Messrs. Hallett, Lambert, and Oliver.
Mr. Brandon presented the petition of sundry inhabitants of Madison County, praying the passage of a law authorizing Green Collier to construct a dam across Flint river; which was read, and referred to the Committee on Inland Navigation.
Mr. Vining presented the petition of James Trotter, of Madison County; which was read, and referred to the Judiciary Committee.
Mr. Neill presented the petition of Benjamin James, praying of passage of a law granting him the privileges of a citizen; which was read, and referred to the committee on propositions and grievances.
Mr. Fitzpatrick, from the committee of propositions and grievances to whom was referred the petition of John P. Neal, agent of William A. Powell, reported a bill to be entitled, an act to emancipate John Ribinson, a mulatto man slave; which was read a first time, and ordered to be read a second time to-morrow.
Mr. Barton, of Mobile, presented the petition of Charles Batre, Administrator of John Francis Duchemin, praying the passage of a law authorizing the sale of certain real estate; which was read, and referred to the judiciary committee.
Mr. Lambert, from the select committee to whom was referred the petition of the principal pilots employed on the outer bar of the Bay of Mobile, reported a bill to be entitled, An act for the relief of the principal pilots of Mobile Bay; which was read a first time, and ordered to be read a second time to-morrow.
Mr. Baylor, from the select committee to whom was referred the petition of sundry inhabitants of Walker county, reported a bill to be entitled, An act to establish a permanent seat of justice in the county of Walker, and for other purposes; which was read a first time, and ordered to be read a second time to-morrow.
Mr. Lambert presented the account of James Conway, Jailer of Baldwin county; which was read, and referred to the committee on accounts.
Mr. Lewis presented the account of Jeremiah Vestal, late Jailor of Blount county; which was read, and referred to the committee on accounts.
Mr. Lewis presented the account of the Sheriff of Jackson county; which was read, and referred to the committee on accounts.
Mr. Harris presented the account of George W. Myers, Sheriff of Washington county, which was read, and referred to the committee on accounts.
Mr. Harris presented the account of William Tinnen, late sheriff of Washington county, which was read and referred to the committee on accounts.
Mr. Dellet obtained leave to introduce a bill, to be entitled, an act to repeal the act establishing the June term of the Supreme Court; which was read a first time, and ordered to be read a second time to-morrow.
Mr. Dellett obtained leave to introduce a bill, to be entitled, an act to repeal an act, entitled an act the more effectually to insure the testimony of absent witnesses by interrogatories- which was read a first time and ordered to be read a 2d time to-morrow.
Mr. Bridges, to whom was referred the petition of Abel Davis administrator of Daniel Davis, deceased, reported a bill to be entitled, an act to authorize Abel Davis, administrator of Daniel Davis, deceased, to sell real estate, which was read a first time, and ordered to be read a second time to-morrow.
Ordered, that Mr. Martin, of Franklin, be added to the military committee.
Ordered, that Mr. Cook be added to the committee on county boundaries.
Ordered, that Mr. Moore be added to the committee on schools and colleges, and school and university lands.
On motion of Mr. Martin, of Franklin, resolved, that the military committee be instructed to inquire into the expediency of dividing and making two, of the second division of the militia of this state.
On motion of Mr. Martin, of Franklin, resolved, that the judiciary committee be instructed to inquire into the expediency of repealing all laws relative to the commissioners of roads and revenue- and that the justices of the peace in each and every county, perform the several duties now incident to commissioners of roads, &c.
The House resolved itself into a committee of the whole, on His Excellency's message; Mr. Oliver in the Chair- and after some time spent therein, the committee rose, and Mr. Speaker resumed the Chair, and Mr. Oliver reported that the committee had, according to order, had the message of His Excellency under consideration, but not having time to go through with the same, had instructed him to ask leave to sit again, which was granted.
A bill, to be entitled an act to authorize the administrators of the estate of John Bell, deceased, late of the county of Conecuh, to convey certain real estate therein named, was read a second time, and ordered to lie on the table.
Message from the Senate by Mr. Lyon- Mr. Speaker, the Senate have adopted the following resolution, in which they desire your concurrence: Resolved, that a committee be appointed on the part of this House, to act with such committee as may be appointed on the part of the House of Representatives, to conduct the Governor elect into the representative hall, for the purpose of taking the several oaths pre-
scribed by the Constitution, previous to entering on the discharge of the duties of his office. They have appointed Messrs. Bagby, and Jackson of Lauderdale, and he withdrew. Ordered that the same lie on the table.
On motion of Mr. Morton, Resolved, That a committee be appointed on the part of this House, to act with such committee as may be appointed on the part of the Senate, to conduct His Excellency, the Governor elect, into the representative hall for the purpose of taking the necessary oaths of office - whereupon, Messrs. Morton and Crenshaw were appointed said committee.
On motion of Mr. Morton, Resolved, that the Senate now be invited to assemble in the representative hall, for the purpose of installing His Excellency, the Governor, agreeable to the report of the committee on that subject, and that the west end of the hall be appropriated for their reception.
A message from the Senate, by Mr. Lyon- Mr. Speaker, the Senate concur in the resolution of your honorable body, appointing a committee on your part, to act with such committee as may be appointed on the part of the Senate, to conduct His Excellency, the Governor elect, into the representative chamber, for the purpose of taking the necessary oaths of office. They have appointed on their part, Messrs. Bagby and Jackson of Lauderdale.
The Senate having repaired to the hall of the House of Representatives and taken their seats, His Excellency John Murphy, appeared and Mr. Speaker administered to him the oath prescribed by the Constitution - And also, by an act entitled an act, supplementary to an act, entitled an act to suppress duelling, passed on the 17th day December, 1819, after which His Excellency, the Governor, arose and delivered an appropriate address to both houses, and the Senate withdrew- and the House adjourned till 3 o'clock.
Evening Session, 3 o'clock, - Mr. Williams, from the committee on privileges and elections to whom was referred the memorial of James G. Lyon, reported, that the committee to whom was referred the memorial of James G. Lyon, contesting the right of P. T. Harris to the seat in this House, now occupied by him as the Representative from the county of Washington, have had the same under consideration and ask leave to make the following report:
James G. Lyon states in his memorial that he was duly elected by a plurality of the votes of Washington County, to represent that County in this General Assembly, and that notwithstanding he was thus duly elected, the Sheriff of Washington County has returned Mr. Harris as having been elected. In support of the claim of Mr. Lyon to his seat, he has introduced evidence before your committee to the following effect. On the evening of the day of the General election, after the polls had been closed, the managers of the election at Washington Court House, proceeded to count out the tickets that had been deposited in the box required by law to be kept for state officers; and that when they had made some progress in the discharge of this duty, they observed a ticket on which was written the name of George W. Owen, who was at that time a candidate to represent the southern Congressional District in the House of Representatives of the United States. This ticket was destroyed, and consequently the number endorsed on it cannot be ascertained. After the managers had counted out the tickets which had been deposited in this box, and on the evening of the same
day, they proceeded to count out the tickets which had been deposited in the box required by law to be kept for a member to Congress; and in doing so, they perceived a ticket on which had been written the names of John Murphy for Governor, and James G. Lyon for Representative, both of whom were candidates for the several stations designated on the ticket. When the managers came to this ticket, one of the clerks who assisted in conducting the election inquired of the Sheriff the number endorsed on the ticket, and was informed by him that it was endorsed with number "95." By referring to the list of voters kept by the clerks, the number corresponded with the number opposite to the name of James Thompson. The ticket numbered "95," having been found in the Congressional box, and the managers not anticipating that the candidates would receive an equal number of votes, was not added to the number of votes received by Mr. Lyon. It was however preserved by the managers, and has been handed to Mr. Thompson in the presence of the committee. That gentle man states that he wrote his ticket in haste on the day of the election, and that it was his intention to vote for Wm. Crawford, Esq. for the Senate, as well as for the two gentlemen whose names appear on the ticket numbered "95," and which had been found in the Congressional box; and that he supposed he had done so, until he saw the ticket after the election. He stated however, that he wrote but one ticket on the day of the election, and that he believed the names on the ticket numbered "95," shewn to him in the presence of the committee, to be in his hand writing. It is in further proof by the evidence of Gen. Thompson, that the ticket shewn to him here is believed by him to be the same ticket found in the Congressional box. In the expression of this opinion by the witness, your committee are induced from a corroboration of circumstances, to concur. "In relation therefore, to the vote of Gen. Thompson, it may be said in few words, that the ticket of the gentleman was placed through the mistake of the managers in the wrong box; and that it was the wish of Gen. Thompson, that Mr. Lyon should represent the County of Washington in this General Assembly, and not the southern District, in the Congress of the United States.
The committee have been thus minute in detailing the facts in relation to the vote of Gen. Thompson, from the belief that the right of Mr. Harris to retain his seat, depends entirely upon the legality of that vote. And its materiality in this contest is at once apparent from the following statement of facts. Mr. Harris and Mr. Lyon received each one hundred and fifty three votes, exclusive of the casting vote of the sheriff and of the vote of Gen. Thompson. If the vote of Gen. Thompson had been added to the number of votes received by Mr. Lyon, he would have been duly elected by a majority of one vote. It was however not included, and the sheriff by virtue of his official station, gave the casting vote in favor of Mr. Harris.
From this statement of facts, the questions to be determined in relation to the vote of Gen. Thompson are these, ought not the managers to have added that vote to the number of votes received by Mr. Lyon before they made a return of the election to the sheriff ? If they ought to have done so, and did not, is it not competent for the House of Representatives to determine that Mr. Lyon shall yet receive the benefit of that vote?
The law prescribing the mode in which elections shall be conducted, imposes the duty upon the managers of opening two boxes for the reception of tickets, in one of which shall be deposited the votes for state officers, and in the other the votes for a member to congress. If in the discharge of the duties thus required to be performed by the managers, they should make any mistake, it is believed by your committee that they have the power to rectify such error, at any time previous to the return of the election to the sheriff. It is believed too, that the same power is reserved to the managers at the different precincts through the county, until such managers have made their return to the managers at the court house. In support of the correctness of this position, suppose the managers had counted
out the votes, and then dispersed. After they had done so, and previous to the return being made, they discovered that several tickets were left in the box and had not been counted. Would any person deny to the managers the right of correcting the mistake, and counting out the votes thus left in the box? Certainly not. Your committee cannot perceive any difference between this case, and the one referred to their consideration. The circumstance alone of the tickets having been placed in the wrong box, through mistake, does not change the principles involved in the two cases, nor does it destroy the vote so placed in the wrong box. In both cases the result might have been changed by the negligence of the managers, and if the mistakes resulting from such negligence cannot be rectified, the exercise of the right of suffrage is virtually denied to the people. In a country like our's, where the sovereignty of the people is impressed upon every feature of the government, it becomes our duty to consult the expressions of their will; and to withhold any decision that may abridge the right of suffrage.
The legislature in requiring that a separate box should be kept for the reception of tickets, for a member to congress, never included that a vote which should be placed in this box, through mistake should be lost. It was only intended to facilitate the decision of any contested election that might grow out of the election of a member to congress from this state.
In arriving, therefore at the conclusion, that the managers ought to have added the vote of General Thompson to the member of votes received by Mr. Lyon, your committee have expressed the will of that gentleman in relation to the candidates, without violating any principle of law.
It now remains to be ascertained, whether or not it is competent for the house of representatives to say that Mr. Lyon shall receive the benefit of General Thompson's vote. On the day after the general election, when the votes had been received from the different precincts and added together, it was found that both the candidates had received an equal number of votes; upon ascertaining this fact, the managers at the court house determined that their authority as managers expired on the first day, and that consequently they had no power to determine on the legality of the vote of General Thompson, and must refer the decision of that question to a higher tribunal. It is not material to this investigation, whether the authority of the managers expired on the first or second day, because whatever may have been their decision as to the legality of the vote of General Thompson, that decision would have been subject to the revision of this house. The fourteenth section of the third article of the constitution of this state, secures to each house of the general assembly the privilege of judging of the qualifications, elections and returns of its own members. Thus, the power of the house of representatives to add the vote of General Thompson to the number of votes received by Mr. Lyon, cannot be questioned.
From these considerations, which they now offer to the house, your committee believe that the vote of General Thompson should be added to the number of votes obtained by Mr. Lyon. What influence that vote should have on the right of Mr. Harris to retain his seat, has been the subject of investigation, by the committee. Mr. Harris appeared before the committee, and was heard on this question. It is contended by him, that the vote of the sheriff of Washington county in his favor was a legal vote, because the sheriff was entitled to the privilege of voting under the constitution. From the facts in relation to the case it is but necessary, that the committee should decide, whether the sheriff was or was not entitled to the privilege of voting, under the constitution. It is admitted by the parties, that the sheriff of Washington County did vote on the day of the election for a Senator, and not for a Representative. If the sheriff had the right to vote for a Representative and voted for the Senator only, he thereby waived the exercise of this right; and it no longer remains a question to be determined, whether the sheriff had the right to vote under the constitution. It is evident that he had no right to vote after the polls had been closed, unless in giving the
casting vote in his official capacity. And if the vote of Gen. Thompson, be added to the number of votes received by Mr. Lyon, he would have received a majority of one vote over the setting member: So that the act of 1812, authorising the sheriff to give the casting vote could have no application to this controversy, Mr. Lyon appears therefore, to have been duly elected, by a majority of one vote.
It becomes the duty of the committee to report further; that after Mr. Harris was returned by the casting vote of the Sheriff, as having been duly elected, he transmitted to his Excellency the Governor, his resignation as the representative elect form the county of Washington. This resignation was accepted, and a writ of election issued by the Governor to fill the vacancy. Mr. Harris was elected without opposition, and a return of this election made by the sheriff.
It is the opinion of the committee in relation to the second return, that it has no bearing on this case, unless Mr. Harris was duly elected in the first instance. If he was elected in the first instance, he had the privilege of resigning his seat, and must now claim it by virtue of the second return. If he was not elected, no right was vested in him, as the representative from Washington county, of which he could divest himself, by a resignation; and consequently the writ of election issued by the Governor was unauthorised by law. Again, if Mr. Harris was not duly elected in the first instance, his resignation could not effect Mr. Lyon; his privileges, as a representative, could only be effected by his own resignation, or by the act of this House.
The only question, which now remains for the committee to determine, is unconnected with the merits of the controversy; and has been brought before them by Mr. Harris. It presupposes the fact, that Mr. Lyon was duly elected; but it is contended, that he cannot take his seat, on the ground of constitutional ineligibility- That he was the Clerk of the Circuit Court for the county of Washing- ton, on the first Monday in August; and therefore, ineligible to a seat in the House of Representatives. The words of the constitution are these: - "No person holding any office under the United States, in this State, or any other power, shall be eligible in the General Assembly." In placing a proper construction upon this section of the constitution, it is important to ascertain the object which the convention intended to effect by it. It was certainly, designed to prevent an person from holding a lucrative office and occupying a seat in the Legislature at the same time. If this was the intention of the framers of the constitution, and it certainly was, a correct decision is easily attained. That such was the motive by which the convention was influenced, is evident from one consideration only. The constitution of Alabama, which has been so emphatically termed the charter of our liberties, was never designed for the purpose of abridging the privileges of the people of this country. An equal distribution of the honors and emoluments of office, among those who might be entitled to its protections, is a characteristic feature in our constitution. Thus, then, the connection of offices in the person of an individual, the duties of which might be incompatible with each other, was intended to be avoided. In the case before the committee, the discharge of the duties of Circuit Clerk by Mr. Lyon, created no relationship between those duties and his privileges as a representative elect; nor was there any thing incompatible in the discharge of those duties, and the passive station of a representative elect. - They would only become incompatible with each other, when Mr. Lyon should enter on the discharge of his duties as a representative. From these considerations it is obvious that the convention intended nothing more, than to prevent an individual from occupying a seat in the Legislature, and discharging the duties of a lucrative office, at the same time. If such was the intention of the framers of the constitution, the Legislature will only judge of the eligibility of its members, when they come forward to occupy their seats. Any section of the constitution, that is intended to restrict the citizen in the enjoyment of his natural rights, should receive a liberal construction. It is not believed,
however, that a literal construction of the section in question, would justify a different conclusion. It is, therefore, the opinion of the committee, that Mr. Lyon is not ineligible to a seat on this floor; and, inasmuch as he has been duly elected, the committee unanimously recommend to the House, the adoption of the following resolution: Resolved, that James G. Lyon is lawfully entitled to the seat now occupied in this House, by P. T. Harris, Esq. as the representative from the county of Washington, and ought to take his seat.
On motion of Mr. Creagh, Ordered, That the report and resolution lie on the table.
Engrossed bill to be entitled an act authorizing Jacob Johnson to emancipate a certain slave therein named, was read a third time and passed. Ordered, That the title be changed from that of a bill to that of an act. Ordered, That the clerk acquaint the Senate therewith.
Mr. Moore presented the petition of Isaac Jordon, praying the passage of a law to emancipate a certain slave therein named; which was read and referred to a select committee, consisting of Messrs. Moore Fluker and Bridges.
Mr. Moore obtained leave to introduce a bill to be entitled, an act to authorize clerks of county courts to administer oaths in certain cases; which was read a first time, and ordered to be read a second time to-morrow.
On motion of Mr. Martin, of Frank. Resolved unanimously, That on the dissolution of the political connexion of ISRAEL PICKENS, late Governor of this State, and this House, that we, the representatives of the people return our grateful thanks for the able, even and dignified manner in which he has discharged the duties of that important trust, during the four years of his administration.
A bill to be entitled, an act to prohibit the further granting licenses for gaming tables, was read a second time, and referred to a select committee, consisting of Messrs. Morton, Dellett, Martin of Frank. Thornton and Baylor.
On motion of Mr. Creagh, Resolved That a committee be appointed to wait on His Excellency Governor Murphy, and request him to furnish a copy of the inaugural address delivered by him this day that the same may be spread upon the Journal of this House; whereupon Messrs. Creagh and Greening were appointed said committee.
On motion of Mr. Davis, Resolved, That the military committee be instructed to inspect the arms of this State, now in the arsenal at this place, and report to this House their situation. Ordered, That Mr. Bridges be added to the committee on roads, bridges and ferries
The House adjourned until to-morrow morning 10 o'clock.