Wednesday, December 20, 1820.

The Senate met pursuant to adjournment.

Mr. Gause from the committee of enrolled bills, reported that the committee had examined the following bills, and found them duly enrolled, to wit: An act to authorise the payment of sixty dollars to Samuel Dale; An act to authorise persons who have settled on the sixteenth section in each township to remove mill works, machinery, and for other purposes; An act to authorise the persons therein named to sell and transfer certain certificates of land; An act prescribing the mode of making out and authenticating accounts against this State; An act to raise a revenue for the support of Government for the year 1821; resolution authorising the payment of Chapley R. Welbourn; An act concerning this appointment of county officers; an act to incorporate the town of Elyton, in the county of Jefferson; resolution appointing commissioners to review and mark out a road from the military crossing of the Buttahache to the Falls of Tuskaloosa; an act to legalize registering certain deeds or conveyances of land in this State.

A message from the House of Representatives by Mr. Shackleford -Mr. President, The House of Representatives have passed the following bills to wit: resolution authorising the Governor to pay to David and Nicholas Corcheron a sum of money therein mentioned; An act to amend an act entitled an act to provide for leasing for a limited time the lands reserved by the Congress of the United States for the support of schools within each township of this State, for a seminary of learning, and for other purposes.

They concur in the amendments made by your honourable body to the bill entitled an act to extend the boundaries of Jefferson county and for other purposes.


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They concur in the amendments of the Senate to the bill entitled an act to regulate proceedings in suits at common law.

They disagree to the amendment made by the Senate in striking out the third section of the bill for the relief of the tax collector of Lauderdale county, and for other purposes.

They agree to the other amendments made to said bill.

They disagree to the amendments made to the bill entitled an act, for enclosing the public building in the town of Cahawba, and for other purposes.

On motion of Mr. Davis, the Senate receded from the amendment to the bill entitled an act for the relief of the tax collector of Lauderdale county, by striking out the third section.

On motion of Mr. Garth, the Senate concurred in the amendment made by the House of Representatives to the bill giving jurisdiction over water courses.

On motion of Mr. Casey, the Senate receded from their amendment to the bill entitled an act, to provide for enclosing the public building in the town of Cahawba and for other purposes.

Message from the house of representatives by Mr. Moore of Madison --Mr. President, The house of representatives have passed a bill entitled an act making appropriations for the year 1821, and for other purposes therein mentioned. They concur in the amendments made by the senate to a bill entitled an act to lay a tax on the inhabitants of Washington county.

On motion of Mr. Garth the senate resolved itself into a committee of the whole on a bill to be entitled an act to apportion to representatives among the several counties in this state, and to divide the state into senatorial districts, according to the late census. Mr. Davis in the chair, and after some time spent therein the committee rose, Mr. President resumed the chair, and Mr. Davis reported that the committee of the whole had, according to order, had said bill under consideration and had made an amendment thereto; which was concurred in. On motion of Mr. Sims, ordered that said bill be engrossed and read a third time this day.

A message from the house of representatives by Mr. Perry -Mr. President the house of representatives have adopted the following resolution, Resolved that the house of representatives will be ready to adjourn this evening at the hour of three o'clock.

Mr. Sims from the committee appointed on the part of the senate to confer with the committee from the house of representatives on the subject of the amendment proposed by the senate, to a bill apportioning the representatives among the several counties in this state, and to lay off the same into senatorial districts, reported, that they had had a meeting and could not come to any agreement. They submit to the senate the written reasons which were submitted by each committee for their consideration, to wit: "The committee appointed on the part of the house of representatives to confer with the committee appointed on the part of the senate, on the amendments made in the senate to the bill entitled an act to apportion the representatives among the


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several counties in this state and to divide the state into senatorial districts according to the returns of the late census to which amendment the house of representatives have disagreed, have the honor of submitting the reasons in support of the course pursued by that house. The Constitution on the subject of apportionment is in some instances ambiguous; but like other instruments it must receive such construction as will carry into effect all the provisions if practicable, and if it is found impracticable to give operation to all, the least important must yield to those of higher character.

If the question under discussion depended on this rule alone, it is believed the provisions of the Constitution requiring the present General Assembly to apportion the representatives and senators and to divide the state into senatorial districts, is of higher import than any provision in relation to the senatorial term of service: but when the question is fully investigated, it will be found that the term of service for senators to be elected in the incipient stages of the government is contingent and does not depend alone upon the term of three years mentioned in the 12th section of the third article of the Constitution; but upon other provisions which in their character are active and require some act to be done before they can go into operation.

By complying with the requisitions of the thirteenth section of the same article, one third of the senators will have a right to serve but one year, one third for two year, and one third will have a right to serve for three years; although all were chosen for the term of three years. If however the Senate convened under that section, shall refuse to cast lots and make the classification therein required the term of service of each must necessarily be the same, all having been elected for the same term; but this refusal would be a violation of a positive command of the constitution, and render that body after that session unconstitutional. A senatorial term is mentioned in the latter part of the eighth section of the schedule, which for the present may be admitted to be three years, but it can only be ascertained to be so by reference to the twelfth section of the third article before referred to, as the ninth section of the same article has pointed out the time when an enumeration is to be made, and the apportionment of Representatives necessary thereon. And the tenth section of the same article has also commanded the General Assembly, at the first session. after every such enumeration to fix by law, the whole number of senators and to divide the State into the same number of districts; it is obvious that the term of service mentioned in the schedule can only be two years, unless we violate the mandate of that section by refusing to pass a law fixing the number of senators and dividing the State into the same number of districts, which refusal will be equivalent to a refusal on the part of the Senate, convened in conformity wit the thirteenth section before referred to, and will make the senatorial term depend upon the will of the Legislature and not upon the constitution. It is believed that no correct distinction can be drawn between the mandatory influence in the tenth and thirteenth sections of the third article nor can the obligatory force on the considered stron-


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ger than the other. Both require an act to be performed before the senatorial term can be made less than three years; and a refusal in either case must produce the same effect. Taking all these provisions of the constitution together, it appears very clear, that a senatorial term of service means nothing more than that period of time and a senator may serve without violating some positive provision of the constitution which conflicts with the term of three years. But in ascertaining when the term of the present senators expires, and when the first apportionment is to be made, the rules of construction on which the foregoing is based, becomes in a great degree unnecessary; because the temporary General Assembly, created by the eighth section of the schedule is limited to two years, by a fair construction of that section in conjunction with other sections of the permanent provisions to which it plainly refers. The first branch of that section points directly to the time when all its powers shall cease, and that time is limited by the operation of the section connected with the provisions to which it points. It says "until the first enumeration shall be taken as directed by this constitution." The counties enumerated shall be entitled to the Representatives attached to each; "and each county shall be entitled to one senator, who shall serve for one term" the word "until" limits and controuls the operation of the whole section unless the provision respecting the Senate can be released from its operation, and that appears to be impossible upon principles of sound grammatical construction, the copulative conjunction "and" unless the Senatorial with the Representative branch, and subjects the whole to the same rule of construction; consequently, when the Representative branch ceases to exist, the senatorial branch must cease also.

The Senate having consented to apportion the representative branch of the General Assembly, and thereby pass it from the operation of the temporary provisions of this schedule into the permanent provisions of the body of the constitution, and having refused to apportion the Senators and divide the State into districts, we respectfully ask the reasons upon which they have acted, that we may if practicable come to an arrangement by which the government may be perpetuated according to the constitution.

The committee appointed on the part of the Senate to confer with the committee appointed by the Representative branch on the amendments made in the Senate to the bill apportioning the Senates and Representatives under the late census offer to the House of Representatives the reasons which influenced the course pursued in the Senate.

It is believed the eighth section of the schedule does not lead to the tenth section of the third article to shew when senators shall be apportioned because it contravenes the main intention as will appear from the twelfth section of the same article.

It is believed the duration of a senatorial term until the classification ordered in 1826 in three years; and that the 13th section of the 3d article cannot apply to this question because this section is manifestly intended to be an exception to the general term of senatorial office, in order to effect a particular object and enters fully into the


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main intention of the farmer of the instrument, and to give effect to the ninth and tenth sections at this time, would destroy the main intention unequivocally expressed without the necessity of effecting a particular object, which could not be otherwise effected.

It is also believed that if the eighth section of the schedule is to form the data of a senatorial term, commencing from an election ordered in the preceding section, that it applies with equal force to the Representatives elected in the year eighteen hundred and nineteen ; this section declaring that until the first enumeration shall be made each county shall be entitled to the number of members therein designated. The enumeration cannot be considered as being made within the meaning of the constitution until made to the constituted authority, which has been done at the present session. It consequently follows that the Representatives now convened hold their stations in contravention of the constitution, for in this section the duration of their service is measured and fixed by the first enumeration by which they are recognised as constitutional members for two sessions with out an intermediate election; yet as the second and twelfth sections of the third article goes imperatively to destroy the application given this section, the Senate cannot indulge it. In no part of the constitution can the Senate find an authority to elect senators, for one year, which must follow if the bill passes, or they must be elected for three years, which directly goes to innovate all the provisions relevant to the senatorial department in future. If the senatorial districts are now laid out, the persons elected to fill them. It is believed those persons cannot be received as constitutional senators the first year of their service being the last year of these senators elected in the year eighteen hundred and nineteen, and settled by the twelfth section, third article.

It is further more believed, that if senatorial districts are now laid out, and a senatorial apportionment made, the senators next elected must hold their offices for three years, and cannot be construed to hold them for a less or greater duration of time.

The reasons inducing this belief are these:

An apportionment predicated on the basis of an enumeration of the white inhabitants, brings you to the great and permanent principles of the Constitution: to wit.

That representation must ultimately proceed on the enumeration of the white inhabitants; whenever therefore, an appointment of the Senate will take place on the basis of an enumeration of white inhabitants, the ultimate object of the Constitution is accomplished as regards the senatorial representation, and it must follow, that their term of office will also be regulated by the ultimate provisions on that subject. It is needless to remark, that in that case their term of office is a term of three years.

The Senate have never ceased to deplore the difference of sentiment existing between the two Houses; but one command is known to both. If an unfortunate miscalculation crept into the convention in relation to the first census from which enamated the mandate upon which the present enumeration is made; if that enumeration goes


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to break down the intention of the framers of the Constitution, it goes to contravene the main provisions of the Constitution as relates to the senatorial department, and in doing so prostrates the best interests of the country.

It is suggested how far this provision is to be viewed as nugatory; going to destroy that which it was intended to preserve.

Message from the House of Representatives by Mr. Sargent.

Mr. President -The House of Representatives have passed a resolution for allowance to the Clerk of the House of Representatives and Secretary of the Senate; also, a resolution that the warrants of the Comptroller be issued according to certain provisions therein named; both of which resolutions were severally read the first time. On motion, the rule which requires all bills and joint resolutions to be read on three several days was dispensed with; said resolutions were then read a second time respectively. And on further motion the rule requiring all bills and joint resolutions to be read on three several days was dispensed with; said resolutions were read the third time and passed. Ordered, that the Secretary acquaint the House of Representatives thereof.

A bill to be entitled an act to reduce into one the several acts concerning strays was read the third time; and on the question being put. "Shall said bill pass?" the ayes and nays being called for, it passed in the affirmative. Ayes 14, Noes 3. Those who voted in the affirmative are, Messrs. President, Casey, Davis, Farmer, Garth, Gaines, Hanby, Hodges, Hogg, Metcalf, Ringgold, Sims, Trotter and Ware; those who voted in the negative are, Messrs. Connor Gause and Herbert.

A bill to be entitled an act to apportion the Representatives among the several counties in this state, according to the returns of the late census, was read a third time and passed. Ordered that the title of said bill be an act to apportion the representatives among the several counties in this state, according to the returns of the late census, and that the secretary acquaint the House of Representatives thereof.

A resolution to authorise the payment of Daniel Rather, as jailor of Madison, was read the third time and on motion of Mr. Farmer ordered to lie on the table.

According to order the senate resolved itself into a committee of the whole, on a bill to be entitled an act to alter and enlarge the terms of certain circuit courts in this state, Mr. Davis in the chair, and after some time spent therein the committee rose, Mr. President resumed the chair, and Mr. Davis reported that the committee of the whole had according to order, had said bill under consideration and had made sundry amendments thereto, which were severally read and concurred in.

Message from the House of Representatives by Mr. Moore of Madison. Mr. President, --The House of Representatives have concurred in the amendments made by the senate to the bill, to be entitled an act concerning roads bridges and ferries ; they have also passed a resolution for printing the journals and laws of the present General Assembly.


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Engrossed bill concerning divorce and alimony was read the third time and passed. Ordered that the title of said bill be an act concerning divorce.

The senate resumed the consideration of a bill to be entitled an act to prevent fire hunting, which was read the third time, and the question being put, "shall this bill pass?" it was decided in the negative.

Mr. Gause from the committee of enrolled bills, reported that the committee had examined the following bills and found the same duly enrolled to wit: An act supplementary to the laws now in force concerning wills, intestates, and guardians. An act concerning writs of error. An act concerning executions and sales by sheriffs and other officers. An act to authorise Judges of the Circuit Courts and Justices of the County Courts, to take the acknowledgment of deeds, and relinquishment of dower. An act to amend an act entitled an act for the inspection of lumber and other articles therein named, passed at Huntsville on the 17th day of Dec. 1819. An act to establish certain election precincts therein named, and for other purposes. An act to alter and extend the bounds of Jefferson county, and for other purposes.

A resolution authorising the Comptroller to receive all monies and notes arising from the rents of the seminary lands.

An act, granting to John Fowler the rights of running a steam ferry boat between the city of Mobile and the town of Blakeley.

An act to incorporate the Flint river navigation company.

An act to incorporate an aqueduct company in the city of Mobile.

An act, to incorporate the town of Claiborne, and

An act, to authorise the Governor to sell lots on the public lands east of Alabama river, and opposite the town of Cahawba.

All of which bills and resolutions were accordingly signed by Mr. President.

According to order the Senate resolved itself into a committee of the whole on a bill to be entitled an act, to provide for assessing and collecting of taxes, and for other purposes, Mr. Casey in the chair, and after some time spent therein the committee rose, Mr. President resumed the chair, and Mr. Casey reported that the committee of the whole had according to order, had said bill under consideration, but not having time to go through with the same, had directed him to report progress and ask leave to sit again, which was granted.

On motion of Mr. Terrel, the Senate resumed the consideration of a bill to be entitled an act to apportion the representatives among the several counties in this State, according to the returns of the last census.

Mr. Terrel moved that the Senate adhere to their amendment made to said bill, in striking out the second section, and the question being taken thereon, the yeas and nays being called for, it was decided in the affirmative --ayes 14, nays 5. Those who voted in the affirmative are Messrs. Casey, Conner, Farmer, Gause, Gaines, Hanby, Herbert, Hogg, Metcalf, Rose, Sims, Terrel, Trotter and Ware.

Those who voted in the negative are Messrs. President, Davis, Garth, Hodges and Ringgold.


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Message from the acting Governor, by Mr. Thomas A. Rogers, Esq. Secretary of State.

Mr. President and Gentlemen of the Senate,

I am instructed by the acting Governor to inform you that he did on the 19th instant approve and sign an act, defining the boundaries of Marion county, and for other purposes; and on the 20th, an act, to incorporate the town of Ococoposo, in Franklin county, an act for the government of the port and harbour of Blakeley; an act appointing additional precincts in the county of Bibb; an act giving jurisdiction to the courts of certain counties therein named; and an act, to invest certain lots in the Intendant and Town Council of the Town of Cahawba, and for other purposes, which originated in this honourable body; resolution authorising the Governor to pay David and Nicholas Crocheron, a sum of money therein named, was read the first time. On motion of Mr. Casey, the rule which requires all bills and resolutions to be read on three several days was dispensed with, and said resolution was read a second time. Mr. Davis moved to amend said resolution by adding these words: Be it further resolved, That the compensation herein allowed, shall be understood as full and complete payment for all work and labour done on the State House aforesaid, not only that which is provided for, in and by the original contract, but likewise all such as may have been directed to have been done by the acting Governor and the question being taken thereon it passed in the affirmative.

Mr. Gause from the committee on enrolled bills, reported that the committee had examined the following bills and found the same duly enrolled.

An act amendatory to an act passed by the Legislature of Alabama at Huntsville the 16th November 1819, entitled an act to establish a public road therein named; an act to amend an act passed at Huntsville on the 13th day of November, 1819, incorporating the town of Triana; an act to regulate proceedings in suits at common law; an act supplementary to an act establishing the permanent seat of justice in Cahawba county, passed at Huntsville on the 17th December 1819, all of which were signed by Mr. President.

Mr. Gause from the committee on enrolled bills reported the following bills duly enrolled:

An act for the relief of the tax collector of Lauderdale county and for other purposes; an act to amend an act to provide for leasing for a limited term of time the lands reserved by the Congress of the United States for the support of schools within each township in this state, for a seminary of learning and for other purposes; an act giving jurisdiction over water courses, an act to lay a tax on the inhabitants of Washington county, an act to provide for inclosing the public building in the town of Cahawba, and for other purposes; all of which bills were signed by the President.

Mr. Garth moved the following resolution: Resolved by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That it shall be lawful for the Sheriff of Jackson


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county to hold an election in the manner now prescribed by law to elect three persons to represent said county in the next General Assembly of this State; which was read the first time: and the rule which requires all bills and joint resolutions to be read on three several days was dispensed with, and said resolution was read a second time. Mr. Gause moved to amend said resolution by striking out "three" and to insert "two;" and the question being taken thereon it passed in the affirmative. On motion of Mr. Garth, Ordered, That said resolution be engrossed and read a third time forthwith; and said resolution as amended was read a third time and passed. Ordered, that the Secretary acquaint the House of Representatives thereof.

The Senate adjourned until 8 o'clock to-morrow morning.