The Senate met pursuant to adjournment.
Mr. Wood from the military committee to which was referred the Joint Resolution authorising the Comptroller of public accounts to issue his warrant in favor of Edw. Herndon for services as assistant adjutant general, reported the same without amendment. Ordered that said Resolution be made the order of the day for a 3d reading on tomorrow.
Mr. Hopkins presented the following document:
"The undersigned members of the Senate, who voted against the Resolution authorising Mr. Beck a representative from Wilcox county, to vote in his room, for a Senator to represent this state in the Congress of the United States, wishing to procure for the reasons which dictated their opposition to the Resolution, publicity as extensive as that which their votes will have, avail themselves of their constitutional right to express their dissent from the Resolution.
The Resolution against which they protest, originated in the Senate, and was they conceive, an interference prohibited by the constitution with the case of a member of the House of Representatives and conferred on that member authority to exercise in his own room a right, the exercise of which the constitution requires in the convention of the majority of the representatives of the people. The House of Representatives is vested by the 14th section of the 3d article of the constitution with exclusive power to judge of the qualifications of its own members; to the operation of this power all the members of that branch of the Legislature are subjected, when they present them-
selves as representatives, and their qualifications for the seats which they claim are determined by the House, without consulting the opinion of the Senate on any question that may occur as to their right to the Representative character in which they appear. The Senate derive from the same section exclusive jurisdiction of the qualifications of its members. If, after a member of the House has by the judgment of that branch of the Legislature been admitted to his seat, any event happen affecting his representative capacity or power to act on any matter before the Assembly, the question produced by such event is in relation to such member, one of qualification, which that House alone, agreeably to the constitution, must determine. The power to decide whether one of its members has incurred a disability, for a limited time and specific cause to act as a representative, must belong solely to the House, and if any question arose out of the absence of Mr. Beck, it was whether or not he, who had been by the judgment of the House admitted a member, was disabled by absence from voting during his absence As the House must be acknowledged to possess the exclusive power of preventing any person returned as a member of it, from taking his seat from the want, in the opinion of the House, of the requisite qualifications or expelling a member and of acting in either case without the advice and uncontrolled by the Senate, the undersigned could not perceive the authority by which the Senate declared to the House, and acted jointly with it in determining that an absent member of the House was not disabled from voting in an election which he could not attend, but in which he expressed in his memorial addressed to the Senate, his wish to vote. The undersigned voted against the resolution from this conviction, that, not only the joint judgment of the two branches of the legislature on the qualifications of Mr. Beck to vote in his room, was prohibited by the constitution, but that the authority also given by the resolution to a joint committee from the Senate and House to take the vote of the absent member was unconstitutional.
A member of either branch of the Assembly who votes for a Senator ought to stand in the same relation to his House at the time he votes, which would be required to exist, to entitled him to vote on any other matter that was the subject of deliberation. The 15th section of the 3d article of the constitution of this state requires a majority of each House to constitute a quorum to do business; from this article which prohibits the formation of the House for any Legislative purpose out of any number less than a majority of the members elected, and appearing at the place of meeting, the undersigned conclude that the Legislative power of the House over the subjects, at any time before it is derived from the members forming it, where any question is determined. When a bare majority of the members assemble, it must be conceded that each member attending the place of meeting, and forming an essential part of the quorum to transact business derives his right to exercise legislative power not from election and the prior recognition by the House of representative character only, but from his own act also of attending the meeting; and the constitution has made no difference in the mode of exercising the legislative power which it has granted to the representatives of the people such power must be exercised by all upon the same terms; nor can the majority who by assembling become authorised to legislate or make an appointment of an officer, dispense in favor of members who cannot attend, with any act required by the constitution of them to consummate their legislative capacity. The section of the constitution last referred to, has the case of absent members in its view, and authorises the House to which they belong to compel their attendance, and although the vote of Mr. Beck could have been procured by the use of the power over absent members given to the House by this section as the cause of his absence was not of the kind for which the constitution intended to subject absentees to the operation of the coercive power of the House; yet the undersigned rely in part upon this section for the correctness of the conclusion to which they came; from this section it appears that the case of absent members was considered by the convention, and the undersigned believe that such a case as Mr. Beck's would have been the subject of a constitutional provision, if the convention had intended that an absent member should under any circumstances vote. If the vote of Mr. Beck could be received in the election of Senator, it may be also on the passage of any bill or resolution in the House of which he is a member, and were an absent member permitted to vote on a bill, his vote would be the result not of the deliberation required by the spirit of the constitution, and the nature of legislation under the influence of the combined views and intelligence of the representatives of the state but of his own judgment unaided by the information of others; and although Mr. Beck was informed by the joint committee who wait on him to receive his vote who were in nomination for the office of Senator, yet it is known that an election is not always made between the persons originally nominated. The omission of one or more members to vote may prevent an election, in which event one of the persons originally nominated would sometimes be withdrawn from the contest, or without withdrawing either of those first nominated, persons in addition to them may be nominated, in ei-
ther of which cased the voted of an absent member might be directed against not only the best interests of the county but his own wish.
To adhere to the spirit of that section of the constitution which required that in all elections by the General Assembly the members thereof shall vote viva voce, and the voted of each member must be given in the presence of the House. An act of a member done out of the House ought not to affect any matter confided to the legislative department of the government. The will of a representative can be ascertained only by the House and not by the agents which it may appoint. If a member of the House who had acted as one of a committee raised to investigate a subject referred to them, and assented to a report thereon which was expected by the committee to be matured by the House into a legislative act, could not attend when the House finally acted on the report which could not be adopted without his vote: the knowledge possessed by the House, although conveyed to it by the report itself, of his opinion in relation to the subject, would not authorise the substitution of his opinion for his voted, nor could his vote ascertained and reported by a committee created for the purpose be constitutionally received in such a case.
The House is required by the constitution to keep a journal of its proceedings, on which the votes of the members in an election must be entered, this journal ought to afford the best evidence of the representative acts of every member, and each member ought to possess the means of knowing, independent of the information of any one, that the journal is correct, and of suggesting the correction of it, if it be erroneous, but the journal so far as it respects the vote of Mr. Beck, cannot be subjected to the test of personal knowledge which every member has a constitutional right to apply to it, the evidence of the voted of Mr. Beck is afforded by the report of the committee, and on the authority of that report the vote was entered on the journal of the House, but the correctness of the journal as to this vote depends upon that of the report, and although the undersigned do not doubt the fidelity with which the joint committee, who received the vote of Mr. Beck in his room, performed the duty assigned to them; yet the obligation they feel they owe to the constitution constrains them to protest against a principle which authorises under any circumstances, the will of a representative to be ascertained from hearsay testimony, instead of requiring in all cases the expression of that will in the House where it can be attested by the assembly representatives, who are the only constitutional witnesses of legislative acts.
The sickness f Mr. beck, with causes his absence form the House was sincerely regretted by the undersigned, as the source both of affection to him and a constitutional objection to voting in the election, and they were restrained by what they felt was their obligation to the constitution, from yielding their assent to the resolution authorising him to vote in his room, to the support of which their liberality, if liberality only had been the question, would have prompted them.
NICHOLAS DAVIS, from Limestone county,
JOHN D. BIBB, from Montgomery and Butler,
ARTHUR F. HOPKINS, from Lawrence,
DAVID MOORE, from Madison,
JACK SHACKLEFORD, from Bibb and Shelby,
H. MCVAY, from Lauderdale,
J. W. DEVEREUX, from Conecuh.
A message from the House of Representatives by Mr. Tunstall then assistant clerk. Mr. President: I am instructed by the House of Representatives to inform your honorable body that they have read three times and passed bills which originated in your honorable body of the following titles, to wit: Resolution providing for the further distribution of the statute laws of the state of Alabama; An act to authorise judges of the county court, to practice law out the county in which they may reside; An act for the relief of George A. Glover, assessor and tax collector of Lawrence county for the year 1823; An act to divide the 32d regiment of the militia of this state; An act for the emancipation of slaves; George, and Sarah. They have read three times and passed bills which originated in their House of the following titles, to wit: An act to change the mode of appointing assessors and tax collectors; An act to exempt the citizens of the town of Marion oin Perry county, for working on roads beyond the limits of said town, and for other purposes: An act to repeal in part an act, to es-
tablish certain counties therein named; and for other purposes, passed Dec. 17th, 1821, and for other purposes. In all of which they desire the concurrence of your honorable body.
Mr. Hopkins, from the judiciary committee, to which was referred the bill to be entitled an act, to regulate the sale of slaves by constables, Reported the same as amended, which was concurred in. Ordered, that said bill be made the order of the day for a 3d reading on tomorrow.
Mr. Hopkins from the same committee, to which was referred a bill to be entitled an act concerning the issuing and executing original process by justices of the peace, reported the same as amended, which was concurred in. Ordered, that said bill be made the order of the day for a 3d reading tomorrow.
Mr. Hopkins from the same committee, to which was referred a bill to be entitled an act the better to provide for the punishment of escapes, reported the same, without amendment. Ordered, that said bill be made the order of the day for a 3d reading tomorrow.
Mr. Hopkins from the same committee, to which was referred a bill to be entitled an act authorising executors, &c. to relinquish lands under the act of Congress of the 18th May, 18214, Reported the same without amendment. Ordered that said bill be engrossed for a 3d reading tomorrow.
Mr. Hopkins from the same committee, to which was referred a bill to be entitled an act to amend the attachment laws of this state, reported the same without amendment. On motion of Mr. Sullivan, ordered that said bill lie on the table.
Mr. McVay offered the following resolution, Resolved, that the committee on accounts and claims be required to ascertain the amount of the compensation allowed by law to the assessors for taking the census for the year 1824, in order that an appropriation may be made to cover the whole amount of said compensation, which was rejected.
On motion of Mr. Hopkins, ordered that the judiciary committee be discharged from the further consideration of the bill, to be entitled an act more effectually to guard the public funds of the counties in this state. Ordered, that said bill be laid upon the table.
On motion of Mr. Hopkins. Ordered, that he be excused from serving on the committee appointed on so much of the governor's message, as relates to African slaves.
Mr. Coats obtained leave to introduce a bill to be entitled an act, supplementary to, an act passed No. 16th, 1818, entitled an act for the government of gin holders, and for other purposes, which was read the first time, and ordered to be read the second time tomorrow.
Mr. Smith obtained leave to introduce a bill to be entitled an act to amend an act, entitled an act concerning strays, which was read the 1st time and ordered to be read the 2d time on tomorrow.
Mr. Crabb from the special committee, to which was referred a bill to be entitled an act, to provide for opening and keeping in repair, a certain road therein described, Reported the same as amended, which was concurred in. Ordered, that said bill be engrossed and made the order of the day for a 3d reading on tomorrow.
Mr. Coats called up the bill to be entitled an act to authorise the representatives of Malachi Gould, deceased, to sell certain real estate
and for other purposes. Ordered, that said bill be made the order of the day for a 3d reading on tomorrow.
On motion of Mr. McVay, Ordered that Mr. Moore, be added to the committee on the State Bank.
On motion of Mr. Murphy, Ordered, that Mr. Casey be added to said committee. On motion of Mr. Hopkins, Ordered, that he be excused from further service on the committee on the State Bank.
Bills from the House of Representatives of the following titles, to wit; An act to change the mode of appointing assessors and tax collectors; An act to exempt the citizens of the town of Marion in Perry county from working on roads beyond the limits of said town, and for other purposes, and an act to repeal in part an act entitled an act to establish certain counties therein named, and for other purposes, passed 17th Dec. 1821, and for other purposes; were severally read the 1st time, and ordered to be read the 2d time on tomorrow.
A bill to be entitled an act to authorise Armstrong Mitchell, executor, and Elizabeth Averett, executrix of the last will and testament of Benjamin Averett, deceased, to transfer certain real estate, was read the second time, and ordered to be referred to the committee on the judiciary to consider and report thereon.
A message from the Governor by J. I. Thornton, esq. secretary of state: Mr. President, the Governor did on this day approve and sign an act to provide for the extinguishment of the debt due to the state of Alabama, by the purchasers of lots in the town of Cahawba; which originated in this honorable body.
A bill to be entitled an act concerning prisons and prisoners, was read the 2d time; and ordered to be referred to the committee in the judiciary to consider and report thereon.
A bill to be entitled an act to exempt persons of a certain description from taxation, was read the 2d time, and ordered to lie on the table.
A bill to be entitled an act vesting in the judges of the county courts and commissioners of revenue and roads the power of altering any state road that may run through their respective counties; was red the 2d time, and ordered to be referred to the committee on roads, bridges, and ferries to consider and report thereon.
A bill to be entitled an act to incorporate the Minette bridge company; was read the 2d time, and ordered to lie on the table.
Bills to be entitled an act providing for an extra term of the circuit court of Mobile and Baldwin counties; an act to provide for compensating the electors for president and vice president of the United States; and an act to repeal an act entitled an act to establish regular justices courts in this state, passed Dec. 30, 1823; were severally read the 2d time. Ordered, that said bills be made the order of the day for a 3d reading on tomorrow.
Joint resolution in relation to Major General La Fayette, was read the second time. The rule requiring all joint resolutions to be read on three several days was, on motion, dispensed with, and said resolution was read a third time forthwith and passed, without a dissenting voice. Ordered that the secretary acquaint the House therewith.
A bill to be entitled an act to declare Beaver creek in Wilcox county a public highway, was read the second time, and ordered to be engrossed for a third reading on tomorrow.
A bill to be entitled, an act to authorise the county treasurer of the county of St. Clair to pay a certain sum of money therein named to Arnold Thomason and Austin Hood, was read the second time and ordered to be engrossed for a third reading on tomorrow.
Mr. Murphy, from the committee of the State Bank made the following Report, The committee on the state bank, to whom was referred so much of the Governor's message (No. 1) as relates to that subject, very respectfully report, that this communication of his excellency chiefly regards the measure which have been taken by those entrusted with carrying into effect the provision of the act to establish the Bank of the state of Alabama, and the success which has attended their efforts. Much public commendation is due to the Executive, the President and Directors of the Bank, and the commissioners appointed to effect a loan for the use of the state, for the promptitude, energy, and good discretion exercised in the discharge of the important duties assigned them- these duties have nor proved less honorable to them as being faithfully discharged than we trust they will prove beneficial to the state, for the promotion of whose interests they have been required of them. It may not be amiss in this report, to give an abridged recapitulation of the affairs of the Bank. Of the university fund authorised by law to be vested as capital, there remains in the treasury $39,667, 31 1/4 - the three per cent. fund as by the last settlement at the treasury of the United States, $31,703 01, and the unexpended proceeds of the Cahawba lots, 37, 835 49 1/4; amounting in the whole to $109, 215 81 3/4 cents. The loan of $100,000 has been obtained in specie, issuing state stock therefore at par, bearing an interest of six per cent per annum, payable half yearly, and the principal to be pad at the expiration of ten years. these sums form the present capital of the bank, amounting to something less than $209, 000, as some expenses have been incurred, and chargeable on the capital in hand. The books, papers, &c. have been procured, by the president of the bank having attended to that duty in person. I this report the committee do not deem it necessary to bring any particular measure to the view of the House. This may be done under other communication which more directly require it. so far as we have advanced, every thing seems as favorable as could have been expected to the successful progress of our state institution; and we have much reason to hope that under the influence of an enlightened and liberal management the great objects contemplated by it will be finally and fully accomplished. Which was concurred in.
Mr. Metcalf offered the following resolution: Whereas, at the two sessions of the General Assembly preceding the present session, much business of importance to the interest of this state, was presented for the consideration of the members thereof, which necessarily protracted those sessions for a considerable length; and whereas no such variety of subjects of importance have been or are likely to be brought before the General Assembly at their preset session; and whereas, therefore, the people of this state have a right to expect the early return of their respective representatives and thereby save to the state the unavoidable accumulation of the expenses necessarily consequent upon lengthy sessions; therefore be it Resolved by the Senate, that no new matter shall be introduced into this body after Saturday next, unless
it shall be such as may be presented by any of the committees belonging to the same; and that, with the consent of the House of Representatives, the General Assembly of the state of Alabama will adjourn sine die on Saturday the 18th instant; which was adopted.
And then the Senate adjourned till tomorrow at 10 o'clock.