TWENTY-SEVENTH DAY

MONTGOMERY, ALA., March 9, 1861

The Convention net pursuant to adjournment.

Prayer by Rev. Mr. McDonald.

Journal read and approved.

CALL OF THE COUNTIES.

Mr. Whatley offered the following resolution:

Resolved, That a special Committee of five be appointed to inquire into the cost of publishing the Journals of the Convention on the terms heretofore agreed upon with Mr. Smith.; what are the usual number of the Journals printed for the House of Representatives, and the cost of the same; and the propriety of reducing the number, and making such modifications of the contract with Mr. Smith, as they deem advisable.

Mr. Clemens moved to postpone the consideration of the resolution till Monday next. Carried.

Mr. Dowdell introduced an ordinance to restrict the Legislature in reference to the creation of debts, which was referred to the Committee on the Constitution.

Mr. Yelverton introduced an ordinance to adjourn the spring terms of the circuit and chancery courts, which he moved to refer to a select committee of one from each judicial circuit in the State.

Mr. Jemison moved to lay the ordinance on the table. Carried.

Mr. Earnest, introduced the following resolution, which was referred to the Committee on Public Expenditures.

Resolved, That the President of this convention draw his warrant on the Treasurer of the State for the sum of one hundred dollars, in favor of R. H. Wynne, former door-keeper of this convention, for extra services during the recess of said convention.

Mr. Henderson of Macon, introduced an ordinance to change article 6, section 13 of the Constitution, which was laid on the table.

Mr. Morgan offered the following resolution, which was adopted:

Resolved, That the Committee on the revision of the Constitution be allowed in arranging the revision, to alter the numbers of the sections thereof.


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Mr. Stone introduced an ordinance to amend and construe an ordinance entitled “an ordinance to provide for the military defence of the State of Alabama,” adopted January 19th, 1861, which, on motion of Mr. Baker of Russell, was referred to the Judiciary Committee.

Mr. Kimball asked and obtained leave of absence for his colleague, Mr. Bulger, until next Monday.

CALL OF COMMITTEES.

Mr. Cochran, from the Committee on the Constitution, reported adversely to a petition to raise the jurisdiction of the justices of the peace to $100, which report was concurred in.

Mr. Cochran from same committee, reported adversely on the ordinance to amend section 24 of article 4 of the Constitution of this State. Concurred in.

Mr. Cochran from same committee, reported adversely on the resolution proposing to raise the jurisdiction of justices of the peace over amounts in controversy not exceeding, $250. Report concurred in.

Mr. Cochran, from same committee, reported the following ordinance upon the subject of divorces:

“Divorces from the bonds of matrimony may be granted by suit in chancery, and the decree shall be final, unless an appeal is taken therefrom within three months from its enrollment. But no divorce shall be granted except for adultery.”

Mr. Phillips moved, to amend, by adding the words “or abandonment,” after “adultery.”

Mr. Baker of Russell, moved an indefinite postponement of the whole subject.

Mr. Morgan moved to postpone till Tuesday; and make it the special order for 12 o’clock M. Carried.

Mr. Morgan from the same committee, made the following report:

The committee on the constitution have instructed me to report,-

That in the opinion of the committee, it is not in accordance with the true theory of our government, nor is it sanctioned by a wise public policy, that the Judges of the Superior Courts of this State should be elected by a direct vote of the people.


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In the American States that have adopted constitutions for their respective local governments, and have formed confederacies, the division of the great powers of government into legislative, executive and judicial departments, each independent of the other in their respective spheres has universally prevailed. And in the confederacies formed by these States, there has been a steady adherence to this system.

This division of powers, and the independence of these three great departments of government, may be justly claimed as the foundation of the peculiar form of government styled republican amongst the North American States. It is a distinctive feature, without which no government could be called republican, in the sense in which that term is applied to this American idea of a republican form of government.

In the original formation of the early State governments, and in their constitutions, as well as in the constitution of the United States, the judicial department was made independent of the direct influence of the people. They had a voice in the selection of the agents who should appoint the judges, which agents were directly responsible to the people, but the judges, when chosen, were not directly accountable to the people for their conduct in office, nor were the people responsible to them. Each was independent of the other. The people made the laws through their representatives, and the judges construed and administered them.

The independence of the judiciary was as much a settled idea of the framers of republican institutions on this continent, and was as distinctly provided for in the several constitutions, as was the division of the powers of government into distinct and independent departments.

We have the right to assume, therefore, that the removal of the judicial department beyond the reach of the direct influence of the voting power of the people, was designed to be a part of the ground work of republican institutions, and that a departure from this plan is a departure from the form of government designated as republican by our fathers.

This radical change in the principles of our government, creating a feature entirely foreign to the original


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system, and destructive of its harmony, has been introduced, not in obedience to the demand of the people for greater power, nor for the purpose of correcting abuses of power by the judges, but because of the political advantages that would follow its adoption, and by way of indulgence to the false idea that the nearest approach to a pure democracy would furnish the greatest security to personal liberty. Whereas the recent history of the people and States of the American family has painfully demonstrated that personal liberty and security have the least protection when placed directly within the reach of the voting majority power. A republican government, embracing the checks and balances found in the constitution of the United States, and in most of the constitutions of the older States, affords to the people every power requisite to their safety, and gives them every assurance that so long as the people are pure, and faithful to the constitution, they will remain secure in their rights. This is the form of government approved by the people of America, and they have never lost faith in it.

The representative power of the people, as provided in the federal constitution, and in the original constitutions of the States, was quite as large as was consistent with the safety of those great and indispensable rights of the people, which the constitutions were framed to protect. The judiciary was carefully and effectually placed beyond the reach of the representatives of the people, except as to impeachments for official delinquencies. The judges were responsible to the people for the honesty of their conduct, but not responsible, except to the public conscience and to God, for the correctness of their judgments.

To extend the representative power of the people beyond its natural and just bounds, and to make the judiciary representatives of the people, is obviously a dangerous innovation upon the system of our government, and imminently hazardous to the security of life, liberty and property. For, if the judges are the representatives of the people, they must be faithless, if they do not respond to the opinions of those by whom they are elected. They would be more than human if they did not feel the temptation to represent the will of their constituents. And


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in thus responding to these opinions, they would represent a majority and not all the people. Under such circumstances, the only remaining guaranty for the purity of the judiciary is the frail and unreliable hope that human nature not always pure when removed from temptation, will remain pure when exposed, in a popular government, to the great temptation of the will and power of a majority of the people.

If a majority of the people must elect that judges by a direct vote, and if the judges may therefore feel secure in deciding questions, great or small, in accordance with the popular will, as expressed in their election, it comes to this at last, that the most sacred rights of the minority may be torn from them by a vote of the people. Such principles of government are plainly repugnant to constitutional liberty; and constitutions subject to be construed by the representatives of a majority would become the most useful and convenient engines of destruction in the hands of the most dangerous despotism-an irresponsible voting majority.

The office of the representative is to make laws. The judge construes them when made. If the judge is also the representative, he will resort to judicial legislation in order to carry out the purposes of his party. The laws are made for all the people, and must not act unequally upon the people, otherwise, they are unconstitutional and void.

The judge, in dealing with the people, acts upon them individually, and not as a body. If each individual cannot in the presence of the judge, demand his rights, because a majority of the people are against him, there is no possible security for the rights of individuals, except in the forbearance of the majority.

The majority have power enough, when they can make the laws to govern all the people, and to add to this power the right to construe the laws, and shut out even an inquiry into their constitutionality, is to create a dangerous despotism.

The individual can only look to the judge for protection, and if the judge may answer his demand for justice by a reference of the question to the people who elected him, his safety is at an end. There is no principle of


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representation in the relations of the judges to the people in a constitutional republic, such as our fathers gave us, and to introduce this principle, is to create a new form of government, not approved by our race its all its history, unsuited to our views of a pure judiciary, and condemned most signally in the experience of those States that have recently adopted such false ideas of government.

In all the great array of facts that have impelled the Southern States to disconnect themselves from a government which had ceased to respect that wonderful body of organic law contained in the constitution of the United States, nothing was more painfully true, or more destructive of our confidence in the people of the North, than the fact that judges, elected by the people, and the mere instruments of popular prejudice, would soil their ermine to deny us justice, because their robes were placed on their shoulders by the votes of a fanatical people.

It is equally true that the party now in power in the government of the United States, in order to employ the constitution for our destruction, have appealed to the ballot box for a repudiation of a decision of the Supreme Court of the United States upon the constitution, and boldly assert the responsibility of the judiciary to the public will. They declare it as one of the great purposes of their accession to power, that they will reform the judiciary, and make it bend to the opinions and will of the populace, so that the constitution shall be read according to their construction. This fact was the final destruction of the confidence of the people of the South in the power of the government of the United States to protect their rights.

The representative and the judge can not be united in the person of one man, so as to compel him to discharge both functions in one act, without the destruction of justice, and the violation of one or the other of his duties.

In a State where the executive power in not supreme, the judiciary is the only umpire to which the people can appeal, in the last resort, for justice and security. The constitution itself is to be construed by this umpire, and the decision is binding on the State and the people. The co-ordinate departments of the government can be


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brought before this umpire, and may be compelled to do justice, and to forbear to do wrong to a citizen. If this umpire is left under the constant and direct pressure of popular will, and is its representative, how can it be reasonably expected that on some occasion an unpopular cause will not be defeated without regard to justice, in deference to the voice of a majority? If such a. thing may occur as a natural result of a false principle, the mere possibility of its occurrence is a conclusive reason why the principle should be discarded.

Without a pure judiciary, there is no safety in a republican government. Such government’s fail of their whole purpose, if the most defenseless citizen, and the most unpopular cause cannot be protected with all the securities afforded by laws administered by a pure judiciary.

Justice to the people, and to the judges elected by them, under the present popular elective system in Alabama, requires the committee to express their belief that the selections of judges by the people has not resulted in placing inferior or unworthy men upon the bench, nor are the committee aware of any dereliction of duty on the part of the judges so elected, that might not as well have been expected under our former mode of electing the judges. But it is also our opinion that it is due to the fact that our people yet maintain their high traditional reverence for the law and the judiciary, that they have made such selections; and it is due to these considerations, and to the high personal integrity of the judges, that the evils of a bad system are not patent here, as they are confessedly notorious in some States that leave suffered from this cause.

In times to come, when a dense population may be moved by those influences which always incline them to seek the power of the government for their own aggrandizement, it is fearfully certain that they will attempt to force their opponents into subjection, and dependence upon the majority, through the agency of the ballot box and the instrumentality of an elective judiciary.

It is needless to suggest that such a state of popular sentiment, should it ever occur, will prove destructive of every right which is not supported by the popular will,


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and that constitutional guarantees for the rights of individuals will furnish them no protection.

The committee therefore recommends the adoption of the following amendments to the constitution of Alabama: Strike out Section 12 of the 5th Article of the Constitution, and all amendments of said section, and insert the following as Section 12 of Article 5:

SECTION 12. Chancellors and judges of this State, except judges of the court of probate, shall be nominated, and by and with the advice and consent of the Senate, be appointed by the Governor: Provided, that Judges and Chancellors now in office may respectively hold their offices during the term for which they were elected, unless removed by impeachment.

Mr. Morgan moved to postpone the consideration of this report until Wednesday, 13th March, and make it the special order for 12 o=clock on that day.

Mr. Watkins moved to amend the motion by ordering 100 copies printed.

Mr. Jewett moved to amend by ordering 1000 copies printed.

Mr. Inzer moved to print 200 copies, which motion was accepted by Mr. Morgan.

Mr. Baker of Russell, called for a division of the question.

The question was first taken on printing 1000 copies, which was lost.

The motion to print 200 copies was adopted, and the report was made the special order for Wednesday next at 12 o’clock M.

A message was received from His Excellency the Governor.

EXECUTIVE DEPARTMENT,

Montgomery, Ala., March 9th, 1861.

Hon. W. M. BROOKS, President State Convention:

Sir: In obedience to a resolution of the Convention, handed me this morning, I herewith transmit the two reports of the Collector of the Port of Mobile, showing its condition.

A B. MOORE.


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Abstract of receipts and disbursements, at the custom house at Mobile, State of Alabama, during a part of the month of January, 1861.

1861.

January 12. Balance due, late as per account rendered                        $ 309 41

January 31. Amount of payments on imports                                      $ 5,063 87

January 31. Amount of Hospital money                                          145 67C5,209 54

CCCCC

Amount received                                                                                  $ 5,518 95

DISBURSEMENTS.

January 31. Payments on account of collection of revenue                  $1,667 41

Payments on account of Marine Hospital600 03

Payments on account of Light House establishment100 64                  $2,368 08

CCCC

Amount subject to draft of Governor$3,150 87

Collector's office, State of Alabama, Mobile, January 31, 1861.

[Signed.]

T. SANFORD, Collector.

Probable estimate of duties accruing on merchandise in bond, not available until entered for consumption.

1861.

February 1. Amount in bond$100,000 00

Collector=s office, State of Alabama, Mobile, February 1 ,1861.

[Signed.]

T. SANFORD, Collector.

Abstract of receipts and disbursements at the Custom House at Mobile, State of Alabama, during the month of February, 1861.

1861 RECEIPTS.

February 1. Balance due State of Alabama this day                               $2,939.15

February 28. Amount payments on imports                                             7,469.33

February 28. Amount of Hospital money collected                                     508.61

CCCCB

Amount received                                                                                     $10,917.09

DISBURSEMENTS.

February 28.Payments on account of collecting revenue                          $3,231.02

Payments on account of Marine Hospital                                                       960.46

Payments on account of Light House establishment                                       982.88

Subject to order of Governor                                                                      $5,742.73

Collector’s office, Mobile, 1st March, 1861.

[Signed.]

T. SANFORD, Collector.


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The report was laid on the table, and two hundred copies ordered to be printed.

Mr. Cochran moved that the injunction of secresy be kept upon the ordinance of yesterday. Carried.

Convention went into secret session, and after so remaining for some time, the doors were opened.

Mr. Mitchell, from a select committee, made the following report:

“The committee appointed to make arrangements for the visit of the Convention to President Davis, have selected Monday evening next, at 9 o’clock, as the time, and the parlor of the Exchange Hotel as the place for the reception. The members of the Convention will meet at the reading room of the Exchange Hotel on said evening, at half-past 8, organize, and. proceed to the reception room, where they will be introduced to the President by the President of this Convention.”

“Arrangements will be made and reported for the visit to Vice President Stephens as soon as the committee can confer with him.”

The Convention there adjourned till Monday morning, 10 o’clock.

CCC

SECRET SESSION.

SATURDAY, March 9, 1861.

The Convention having gone into secret session,

Mr. Clemens, Chairman of the Committee on Military Affairs, made the following report:

“The Committee on Military Affairs, to whom was referred the ‘ordinance to turn over to the Government of the Confederate States the arms and munitions of war belonging to this State, and for other purposes,’ have had the same under consideration, and have instructed me to report the following amendments:

“1. Insert the words ‘not heretofore distributed or ordered to, be distributed’ after the word ‘war,’ in the fourth line of second section.

“2. Insert the word ‘and’ after the word ‘forts’ in the fifth line of second section. Strike out the words ‘and navy yards,’ in the sixth line of second section.


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“3. Strike out all after the word ‘State’ in the sixth line of second section to the word ‘provided’ in the tenth line of second section.

“4. Strike out the third section; correct the number of the last section by inserting ‘3’ instead of ‘4.’

Mr. Clemens moved the adoption of the first amendment.

Mr. Coleman moved to amend as follows:

“Strike out ‘or ordered to be distributed,’ and after the word ‘distributed’ insert ‘to organized military companies of the State.’

Mr. Cochran moved to lay the first amendment of the committee on the table.

The yeas and nays were called. Ayes 64-nays 23.

Yeas-Messrs. President, Baker of Russell, Barclay, Barnes, Beard, Beck, Bolling, Bragg, Catterlin, Clark of Marengo, Cochran, Coleman, Coman, Crawford, Creech Crook, Crumpler, Curtis, Daniel, Dargan, Davis of Covington, Davis of Pickens, Dowdell, Earnest, Foster, Gibbons, Gilchrist, Green, Hawkins, Henderson of Macon, Henderson of Pike, Howard, Humphries, Jemison, Jewett, Jones of Lauderdale, Johnson, Ketchum, Leonard, Love, McClanahan, McClellan, McPherson, McKinnie, Mitchell, Morgan, Owens, Phillips, Posey, Ralls, Rives, Ryan, Shortridge, Slaughter, Starke, Stone, Taylor, Watts, Webb, Whatley, Williamson, Wood, Yelverton-64.

Nays-Messrs. Brasher, Clarke of Lawrence, Clemens, Coffey, Davis of Madison, Edwards, Ford, Franklin, Hood, Jones of Fayette, Potter, Russell, Sanford, Sheets, Sheffield, Smith of Tuscaloosa, Steadham, Steele, Timberlake, Watkins, Whitlock, Wilson, Winston-23.

So the first amendment was laid on the table.

The hour of twelve having arrived, which was set for the consideration of the ordinance in relation to new counties, on motion of Mr. Cochran, it was postponed.

Mr. Cochran moved to concur in the second amendment reported by the committee, to strike out “and navy yard” in the second section, and insert the word “and” between the word “forts” and the word “arsenals,” and the motion was carried.

Mr. Cochran moved to lay the third amendment, re-


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ported by the committee, on the table. This motion was carried.

Mr. Cochran moved to amend the original ordinance reported by the committee, by inserting after the word “States” in the tenth line of the 2nd Section, the words “excepting rifles, muskets and small arms.” Carried.

The remainders of the amendments, reported by the committee, were concurred in.

Mr. Watts moved to suspend the rule as to adjournment for this day. Carried.

The question being on the adoption of the ordinance, as amended, the ayes and noes were called for Ayes 64; noes, 13.

Yeas-Messrs: President, Bailey, Baker of Russell, Barclay, Barnes, Beard, Beck, Bolling, Bragg, Catterlin, Clarke of Marengo, Cochran, Coleman, Crawford, Creech, Crook, Crumpler, Curtis, Daniel, Dargan, ,Davis of Covington, Davis of Pickens, Dowdell, Foster, Gibbons, Gilchrist, Green, Hawkins, Henderson of Macon, Henderson of Pike, Herndon, Howard, Humphries, Inzer, Jemison, Jewett, Jones of Lauderdale, Johnson, Ketchum, Love, McClanahan, Mitchell, McClellan, McKinnie, Morgan, Owens, Phillips, Posey, Rives, Ryan, Shortridge Slaughter, Smith of Henry, Smith of Tuscaloosa Starke, Stone. Watkins, Watts, Webb, Whatley, Williamson, Wood, Yelverton.

Nays-Messrs. Brasher, Clarke of Lawrence, Clemens, Davis of Madison, Ford, Franklin, Jones, of Fayette Kimball, Potter, Sanford, Sheets, Whitlock and Wilson.

The ordinance was adopted.

By general consent, the injunction of secresy was removed from the ordinance just passed.

The Convention went into open session.