BREVIER LEGISLATIVE REPORTS
BY ARIEL & W. H. DRAPIER
Vol. IV INDIANAPOLIS, FEB. 11, 1861 No. 11
THE LIQUOR LAW.
Mr. DICKINSON, from the Temperance Committee, returned Mr. Line's bill [S. 8-see page of these Reports] recommending its consideration by the Senate. The report was concurred in.
NEW PROPOSITIONS.
The following bills were severally passed the first reading, without objection:
By Mr. CONLEY: [112] To regulate the remission of fines and forfeitures, and repeal all acts in conflict therewith.
By Mr. O'BRIEN: [113] To amend section 144 of the practice act, approved June 18, '52, requiring the Sheriff to serve a copy of a writ of inunction on the adverse party.
By Mr. NEWCOMB: [114] For the relief of borrowers of public and trust funds, prescribing how mortgages may be substituted, &c. Also [115] to amend sections 2 and 5 of an act authorizing the Commissioners of the Sinking Fund to receive substitution of stock mortgages, approved January 28, 1847; which bills were severally read the second time by title only, (the rules being suspended for that purpose-yeas 37, nays 1, yeas 35, nays 1)and referred to the Judiciary Committee.
By Mr. CLAYPOOL: [116] to amend sec. 7 of the act providing for the election of Supreme Court Reporter; approved February 5, 1852.
By Mr. STUDABAKER: [117] To authorize and require clerks of the Circuit and Common Pleas Courts to enter satisfaction of certain mortgages, and providing compensation therefor. On Mr. Anthony's motion, the rules were suspended-yeas 36, nays 0-the bill read the second time by title only, and referred to the Judiciary Committee.
By Mr. COBB: [118] Fixing the time of holding the Circuit Courts in the 14th Judicial Circuit; rules suspended-yeas 36, nays 1-read the second time by title only, and referred to the Committee on the Organization of Courts.
By Mr. COBB: [119] to amend sec. 6 of an act touching the laying out and locating of of towns, streets, alleys, &c.; approved March 20,1852.
By Mr. TEEGARDEN : [120] Supplementary to an act to repeal all general laws now in force for the incorporation of cities, &c. ; approved March 9, 1857.
By Mr. CLAYPOOL: [121] Supplemental to an act regulating the business of banking; approved March 3, 1855 ; to authorize the Auditor and Treasurer to surrender securities and moneys deposited in certain cases: rules suspended-yeas 36, nays 0-read the second time by title only, and referred to the Committee on Banks.
By Mr. CARNAHAN: [122] To provide for the establishment of private roads on dividing lines between lands of adjoining proprietors.
By Mr. FERGUSON: [123] To amend sec. 601 of the Practice Act, approved June 18, 1852.
FEDERAL RELATIONS.
The PRESIDENT announced the consideration of the minority report of the Committee on Federal Relations-identical with joint resolution [S 4] on pages 44 and 45 of these Reports.
Mr. RAY, in behalf of a minority who voted for the resolution sending commissioners to Washington, submitted their protest, which was ordered to be spread upon the journals, as follows:
Mr. President:
The undersigned, Democratic members of the Senate, having voted on Thursday last in favor of the joint resolutions authorizing the Governor to appoint five commissioners to attend the conference of States at Washington city on the 4th of February, proximo, and having voted under protest, respectfully submit the following reasons for their vote, and ask that the same be spread on the journals of the Senate.
We voted for the resolutions,notwithstanding the conditions and limitations imposed by them on the discretion and action of the commissioners, because we were deeply impressed, not only with our own responsibilities, but with the magnitude of the issues involved in the result of the proposed conference, and we hailed with pleasure any proposition coming from the Republican majority, which looked towards a peaceful solution of the grave controversies threatening our existence as a Nation.
But while it was our pleasure to support the resolutions appointing said commissioners, we respectfully protest against sending commissioners to said conference with all discretion withheld, and all power abrogated, by the resolutions of their appointment, as amounting to a mocking of the patriotic ends of the conference proposed by Virginia and Kentucky, as trifling with the solemn facts and portentous signs of a revolutionary hour.
We protest against the provision prohibiting the commissioners to act until nineteen States shall be represented in the conference, as evincing a purpose of preserving the politic forms of negotiation, while the powers to negotiate are withheld.
We protest, also, against the provision of said resolution requesting the postponement of said conference, because every day's delay weakens the bonds of Union, and forces into view new obstacles to the peace and tranquility of the country.
page: 164[View Page 164]We also protest, because the resolutions do not indicate any, but virtually deny all, means of settling our National controversies by other means than the sword.
And we especially protest against the Implied hostility contained in the resolution, to all measures of conciliation and compromise, as well as against the unfriendly and reluctant manner in which it has pleased the majority to respond to the fraternal invitations from Virginia and Kentucky, as manifesting a settled purpose to insure the failure of the conference.
J. N. CONLEY, THOMAS E. COBB, M. W. SHIELDS, S. K. WOLFE, FRANKLIN LANDERS, SMITH JONES, JOHN C. SHOEMAKER, H. K. WILSON, M. M. RAY, THOMAS SHOULDERS, QUINTIN LOMAX, ARCH. JOHNSTON, M. T. CARNAHAN, A. B. LINE, C. P. FERGUSON, CORNELIUS O'BRIEN, W. C. TARKINGTON
On motion by Mr. BLAIR the consideration of the report was postponed till Thursday next at 10 o'clock.
QUALIFICATION OF WITNESSES.
Mr. Newcombs bill [S. 5-described on p. 13 of these reports]-being read the third time-
Mr. NEWCOMB said: Under the provision of the act of '52 there is a section which is construed into authority to assign by simple delivery notes and accounts. Under that practice the system has grown up of assigning, so that a party owning them could become a witness really in his own behalf, while the mouth of the defendant has been closed. This bill is to remedy that abuse-to give the defendant the same privilege, so both sides may be heard; and is not confined to any particular cause of action but to all causes.
The bill finally passed by yeas 34, nays 7.
APPRAISERS OF REAL ESTATE.
Mr. Cravens's bill [S. 12see page 25] being read the third time-
Mr. CRAVEN said: This bill I presented at the instance of members of the bar and judges in my county. A difficulty seems to present itself with regard to the construction of the act of '52. That act does not indicate where the appraisers may be taken from; while this bill provides that the appraisers shall come from the county wherein the land is situate.
Mr. CLAYPOOL. I could not give my consent to this bill for the reason that if lands are lying in contiguous counties, one set of appraisers are as competent as would be a set in each county, as the bill provides, which would add on a large expense to estates, already over-burdened with taxation of costs. I know of no branch of law where the expenses are so little cared for as that of the settlement of decedent estates. I would suggest that the bill be modified, so as to read that in cases where the land is situated in one or more counties the court shall appoint, if necessary, &c.
Mr. CRAVENS. I can see no objection to the amendment.
The amendment was agreed to by consent, and the bill, as amended, finally passed by yeas 40, nays 0.
QUAILS AND PHEASANTS.
Mr. Claypool's bill [S. 19] being read the third time-
Mr. C. said: This bill provides for the taking of pheasants and qnails the same length of time as is provided in the present law only, it commences one month later in the fall continues one month later in the winter [from the first of November to the first of February. It also decreases the penalty one half]
Mr. CONLEY made an ineffectual motion to recommit with instructions to amend, so as to allow persons to kill on their own premises at any time.
The bill was finally passed by yeas 29 nays 10.
AGRICULTURAL BOARD ANNUAL MEETING
Mr. Line's bill [S. 24] being read the third time-
Mr. L. said: This bill simply requires the State Board of Agriculture to hold their yearly meeting on the "Tuesday" instead of the "Thursday" after the first Monday in January It was under instructions from my own Agricultural Society that I introduced the bill.
The bill was finally passed by yeas 39' nays 0.
THE STATE BORROWING MONEY.
On motion by Mr. TARKINGTON the bill [H. R. 104-see page 111 and 117, laid on the table last Monday]was taken up and read.
Mr. ANTHONY made an ineffectual motion-yeas 15, nays 22-to lay on the table the pending motion to recommit with instructions to strike out the words " sinking fund " and " seven per cent." wherever it occurs, and insert the words "Bank of the State of Indiana" and "six per cent."
The motion to recommit was then agreed to.
LEAVE OF ABSENCE
Was obtained for Mr. DeHart during the week.
TRESPASS ON LANDS.
Mr. Turner's bill [S. 29-see page 45] being read the third time-
Mr. T. said : The only change made in the present law is the addition of imprisonment in the county jail not exceeding twelve months. In a great many instances those who are most frequently guilty you cannot collect a fine from, and the only mode of correcting such would be by imprisonment.
Mr. SHIELDS. I hope the bill will pass. It is certainly very much needed. Mr. S. recited a case to the point, of recent occurrence.
The bill was finally passed by yeas 38, nays 2.
THE PROTECTION OF FISH.
Mr, Claypool's bill [S. 40-see page 46] being read the third time-
Mr. MILLER. I move to recommit that bill with the following instructions: "Amend so as to include the St. Joseph river in the proviso in the first section."
Mr. LINE. I find myself peculiarly situated with regard to this bill. There was sent up to me a petition, numbering some 200 page: 165[View Page 165] names, asking for a similar law. I have received no remonstrance, but I have received a note from some of my constituents, saying it would be doing them a wrong in consequence of the interest some of them have in seines and other fishing tackle. I believe it would be placing me right to ask a recommittal with additional instructions to admit to fish with seines from the first of September to the first of March.
Mr. ODELL. I move the following additional instructions, "except the Tippecanoe river."
Mr. CARNAHAN. I move that the bill and pending instructions be indefinitely postponed.
Mr. MARCH. I am not prepared to vote for the bill as it is. If there was some provision put in the kill by which they could be taken at certain periods, so as not to destroy the fish altogether, I would vote for it.
Mr. LINE (interrupting.) My proposition is to limit the time from the first of September to the first of March.
Mr. MARCH. I could vote for that.
Mr. TEEGARDEN. I am decidedly opposed to the bill in every shape and form.
Mr. CLAYPOOL. I have no particular interest in this bill, but it won't do for the gentleman from Franklin to back down from it, for he is instructed by a petition as long as the moral law. In obedience to instructions from my constituents I drafted this bill, which is verbatim, except the provisos, with the law of Ohio. It is time for the State of Indiana to protect not only her game, but her fish. I hope Senators will not legislate against the interests of any portion of the State, but look at this matter in its proper light.
Mr. BLAIR. I would be glad to vote for the bill if amended in some few particulars. I move to lay the motion to postpone on the table.
The motion was agreed to by yeas 20, nays 13.
Motions to recommit, with instructions to amend, were made, as follows:
By Mr. WOLFE: Except the streams in or bordering on Harrison or Washington counties.
By Mr. LANDERS: Except White River and White Lick.
By Mr. TURNER: Except Lake Michigan and the Kankakee and Calumet rivers.
By Mr. COBB: Except White river, Salt creek, Indian creek, Leatherwood, and Spider creeks, in Lawrence county.
By Mr. LOMAX: Leave out Orange and Crawford counties.
[Mr. LINE made an ineffectual demand for the previous question.]
By Mr. CONLEY: To permit the people of Greene and Owen counties to seine or fish in any stream in either of said counties.
By Mr. BEARSS: Except Eel river.
By Mr. FERGUSON: It is held not to be lawful for any persod to catch fish from any streams in this State, when said fish refuse to bite. [Laughter.]
By Mr. RAY: Except Play river, Flat Rock, Sugar creek and Brandywine, in Shelby and Hanoock counties.
By Mr. SHOULDERS: Strike out Dubois, Pika and Gibson counties.
By Mr. HALL: Except White river, Sugar creek and salt lick, in Randolph county.
Mr. MURRAY made an ineffectual motion-yeas 18, nays 21-to lay these instructions on the table.
Mr. MARCH. I believe there is a majority of this body in favor of some legislation on this subject, and I trust we will not make ourselves ridiculous in endeavoring to load this bill down with instructions. These amendments, I suppose, every one of them to be out of order, for the reason that they propose local legislation.
Mr. WOLFE. I am free to say I am opposed to this bill in any shape or form that gentleman can get it up. I believe that fish and wild fowls are the property of the first takers, and I am opposed to limiting the right; I think it wrong and arbitrary.
Mr. MILLER. I don't care anything about fishing; but we have a dam at South Bend, across the St. Joseph river, which cost $40,000, another at Mishawaka, which cost $35,000, and numerous dams across the streams all over the country there. I thought the first instructions I proposed would meet that objection, but believing now it does not, I offer the following additional instructions: " That the provisions of this bill shall not affect dams for water power already erected or heretofore to be erected."
Mr. RAY. I object to the bill may-be, because I have no taste for fishing. It is an inalienable right to fish it is said, and where there is a right there ought to be a remedy, yet gentlemen propose to cut off our remedy.
Mr. MURRAY (interrupting.) I would ask the gentleman if he believes all men have that right?
Mr. RAY. Except niggers. [Laughter.] If the bill has any application to streams, big or little, in Shelby or Hancock counties, I propose to vote against it.
Mr. CLAYPOOL. The provisions of that bill are intended to cover all the small streams in the State. Science is developing the fact and intelligence is making it known that there is not a bird that floats upon the atmosphere but what is for some great and good purpose. No gentleman can tell me whether the destruction of fowls has not brought about the potato rot.
Mr. RAY (interrupting.) I can answer if the gentleman can answer me whether the potato rot has produced the destruction of the fowls.
Mr. CLAYPOOL. I cannot answer. I should like to see the bill recommitted with the proper instructions; I care not what they may be.
[The President laid before the Senate a communication from the Superintendent of the Deaf and Dumb Asylum, inviting Members to an exhibition of pupils under his care; in compliance with a House resolution, at Masonic Hall next Friday evening.]
The Senate then adjourned.
page: 166[View Page 166]HOUSE OF REPRESENTATIVES.
MONDAY, February 4,1861.JEFFERSONVILLE PRISON.
The SPEAKER laid before the House a communication from the Warden of the Prison, responding to a resolution of the House of January 26th, submitting the account of contractors with the Prison and the amount due from each: which on the motion of Mr. BURNHAM, was referred to the Committee on the Penitentiary.
VISIT OF THE PRESIDENT ELECT.
The SPEAKER aunounced the select committee to make arrangements for the visit of the President elect on the 12th, viz: Messrs. Gresham, Burgess, Bingham, Sherman, Brett, Jenkinson, and McLean.
REPORTS FROM THE JUDICIARY COMMITTEE.
By Mr. BUNDY, returning a resolution for amending the laws for the punishment of crimes and misdemeanors so as to extend the statute of limitations to five years, and reporting further legislation inexpedient.
He also returned the resolution of inquiry whether there is any law authorizing agricultural societies to hold real estate, and reported that such societies have such power according to the provisions of the act of February 7, 1855 ; that further action on the resolution is inexpedient, and that it be laid on the table.
By Mr. VEATCH. returning the petition of Geo. McClure and others, of Martin county, in relation to the killing of stock by railroad companies, &c., and reporting that the laws now give ample remedy in the case ; that fencing railroads was expedient and proper, but not the work of the Committee; that the Committee cannot recommend any measure that would make an insolvent corporation a solvent one; and thereupon they report that the petition lie on the table.
He also returned a resolution for the amendment of the law relative to the pardoning power, so as to prevent the abuse thereof, reporting legislation inexpedient, and that the resolution lie on the table.
These reports were severally concurred in.
He also returned Mr. McLean's bill [33] to perfect the title of purchasers of railroads on foreclosure of mortgages, &c., so as to to enable them to organize and exercise corporate and other powers, with amendments. That no sale under this act shall be valid unless advertisement of time and place shall have made for 60 days in some newspaper of general circulation in the City of New York and in every country through which the road passes ; and other provisions to save the rights of parties in pending actions.
After some conversation upon Mr. McLean's motion to print, in which Messrs. Bundy, Frasier, Nebeker, Roberts, Ford, and Woodhull took part-the latter promising a report adverse to the bill by a minority of the Committee-
The amendments were adopted, and it was ordered that 200 copies of the bill as as amended be printed.
Mr. VEATCH also returned the petition John Wheeler and others, of Crown Point, in Lake county, for a law to punish timber stealing, stating that said committee had already reported a bill on that subject, and reporting a motion that the petition lie on the table.
Mr. EDSON returned the resolution for amendment of the execution laws, so that no person shall be entitled to their benefit of exemptions unless he make out and present to the sheriff an inventory of all his property and reported further legislation on the subject inexpedient.
Mr. BINGHAM returned the resolution for amendment of the law concerning justices of the peace, so as to require them to make out a list of unpaid fees every three months, and reported, legislation inexpedient thereon.
Mr. EDSON returned the resolution for amendment of the law, so as to allow justices of the peace a fee of one dollar on every case and reported, legislation inexpedient.
Mr. CASON returned the resolution for amendment of the law, so that none but the proper officer shall receive the proceeds of execution, and reported, further legislation inexpedient, and that the resolution lie on the table.
Mr. NEBEKER resisted the report-wanted a bill favoring the resolution. A sheriff could not collect his fees under a recent decision of the Supreme Court.
Mr. VEATCH. It might be the committee had not understood the object of the author of the resolution, (Mr. Smith, of Bartholomew.) But the change the language indicated was eminently wrong. If a decision had been made which cuts the sheriff out of his fees, the remedy would be in a bill to amend the law regulating fees. He promised a report on that matter.
These several reports from the Committee on the Judiciary were concurred in.
Mr. BINGHAM, from the Committee on the Organization of Courts of Justice, returned Mr. McClurg's bill [22] to repeal the act establishing Courts of Conciliation, recommending its passage.
The bill was ordered to be engrossed.
He also returned Mr. Cameron's bill [58] to amend section 42 of the act establishing the Common Pleas, so as to regulate the docketing, &c., recommending indefinite postponement.
He also returned the resolution for justices of the peace to hear evidence and try cases in the absence of the plan tiff.
These reports were severally concurred in.
Mr. McCLURG, from the Committee on Rights and Privileges, returned Mr. Dobbins's bill [60,] providing that railroads shall deposit bonds and freehold securities, as a lien for damages on account of stock killed by page: 167[View Page 167] them with amendments; striking out "Knox"and inserting " Marion;" striking out "Ohio and Mississippi," and inserting " all."
On motion by Mr. McCLURG it was laid on the table-Mr; Dobbins being absent.
Mr. ANDERSON, from the Committee on engrossed bills, reported that said committee had examined the engrossed bills numbered 9, 36, 41, 42, 44, 52, 69, 81, and found them to have been correctly engrossed.
Mr. COLLINS, of Adams, from the Select Committee on the resolution with reference to losing fences at the crossings of streams of tester, submitted an adverse report, and asked to be discharged.
The report was concurred in.
NEW BILLS.
The following new bills were introduced and passed to the second reading:
Mr. DAVIS. [164] To authorize the Auditor of State to loan funds arising from estates without heirs-[as other school funds are loaned.]
Mr. BLACK: [165] To amend section 3 of the Common Pleas Act of March 5, 1855-[changing the times in Dubois, Spencer,Perry, Crawford and Orange.]
Mr. POLK : [166] In relation to Dogs-[one dollar tax.]
Mr. ROBERTS: [167] Concerning notes, bills of exchange, and other instruments of writing.
Mr. JONES, of Tippecanoe: [168] Authorizing suits for alimony, and the disposition of property in certain cases.
Mr. VEATCH: [169] To provide for a change of venue in actions; for another judge to preside where there is incompetency ; and to repeal former laws on the subject.
Mr. VEATCH: [170] Authorizing the County Board to procure and preserve the history of their counties, and to pay the expenses thereof.
Mr. WILLIAMS: [171] To amend sec. 15 of the act concerning promissory notes and bills of exchange[taking away the validity of the clause, "waiving the benefit of valuation and appraisement laws."]
Mr. KENDRICK: [172] To amend the first and second sections of the act prescribing the number and defining the powers and duties of Constables.
FEES PAID THE ATTORNEY GENERAL:
The SPEAKER laid before the House a communication from the Auditor of State, responding to a resolution of the House of the 17th inst, calling for a statement of the fees paid to the Attorney General since the 1st of January, 1859. The total amount being $900.
On motion of Mr. WOODHULL, it was referred to the Committee on Ways and Means.
Mr. ORR submitted a resolution, which was adopted, that the Committee on Education inquire into the expediency of amending the law that the tax collected in each county for school purposes shall be expended therein, and distributed according to the number of scholars in each township.
Mr. - submitted an order, which was adopted, directing the Clerk to deliver the Journal of the House to the State Printer, and that the Printer proceed with the printing of the same, and complete it at as early a day as possible.
STATE OF THE UNION.
The SPEAKER now announced the consideration of the unfinished business, being the consideration of the majority and minority reports of the Committee of Thirteen.
Mr. CASON. It was his intention to be brief. He would confine himself to the consideration of the minority report. Its friends tell us we should sink the partizan in the patriot ; yet there is nothing but party in the report itself-nothing but an effort to restore the Democratic party. It charges all kinds of sentiments against the Republican party. It proposes sacrifices on the altar of our country. Sacrifices of principle were an abomination, but there was only the pretence here. The Republicans had proposed the enforcement of the laws to preserve the Union. The official oath of every officer in the land required this; and a failure would be perjury. The Democrats propose concession for their remedy. The Democratic party was ever a party of concession. The South never made a demand that they were not ready to concede. He quoted from the bill of rights of the Virginia Colony before the revolution, recognizing the right of all to "life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety," and referred to the ordinance of 1787, as Republican in doctrine; and proceeded at length to show what the Democracy conceded in 1820 in the Missouri Compromise, and then cut it down under another demand from the South in 1854. They would, if let alone, give up everything demanded, till the whole country shall be covered all over with the curse and blight of slavery. They lived on concession. It was the very life of the party-they all fattened on it. Did they not now encourage the Southern treason? They said 100,000 Indianians would stand against coercion. The South would not take a step backward after such words of encouragement. This was all the South wanted.
He replied to Mr. Jenkinson's doctrine-the necessity for the extension of slavery to give freedom to these States. Should slavery have the first fruits of the virgin soil of this whole continent to the valley of the Amazon ? The Democracy were sticklers for the Union, but they cared nothing for principles. They do not propose to preserve the Union as it is, but as it may be after they have yielded every demand of the South. They would give up the freedom of speech and: of the press, and the power to extend slavery indefinitely. Then page: 168[View Page 168] they would stand bravely and defend a dishonored flag.
The Republicans propose to preserve the Union as our fathers made it. Anything the Constitution requires was not concession. They would maintain the Constitution as it is. But Mr. Jenkinson, as a last resort, proposes peaceable division. There was nothing that might be settled by treaty out of the Union, but could be better settled in the Union, under the Constitution. The true remedy was, to abide by the Constitution strictly on all hands, and do our duty faithfully, and make no concessions.
He concluded by a respectful, but most explicit and emphatic dissent from the minority declaration about 100,000 Indianians resisting the enforcement of the laws by the national government.
Mr. ROBERTS hoped to be able to rise above the partizan, and address himself to the questions here involved as an American citizen. It was maintained by secessionists that the confederation was simply a mere compact, and that any State can release themselves at pleasure. This was Mr. Calhoun's doctrine. A strange doctrine. It was going back to the old confederation. That was found insufficient by our ancestors, and the formation of the Constitution for the government of the United States became a necessity. He quoted from John Quincy Adams, the following:
"The Constitution of the United States was a return to the principles of the Declaration of Independence, and the exclusive constituent power of the people. That it was the work of the one people of the United States; and that those United States, though doubled in numbers, still constitute, as a nation, but one people."
He quoted also from Mr. Webster's works, vol. iii. p. 464:
"The Constitution of the United States is not a league,confederacy, or compact between the people of the several States in their sovereign capacity; but a government pro-per, founded on the adoption of the people, and creating direct relations between itself and individuals."
It were useless to multiply authorities, but he would read the preamble of the Constitution of the United States, to show that the Constitution operated on individual citizens, as well as on the States. It was the supreme law of the land; and those refusing to yield submission, must be compelled. Secession was rebellion-civil war, if carried on in blood-it was classed with the highest crimes known to the law. If the general government objects to secession, and secessionists persist, it was treason. As a Democrat he was in favor of the enforcement of the laws, let the consequences be what they may. At the same time he abhorred civil war. But should we give up the Constitution to gratify South Carolina? [Never.] He would never favor such a policy-never advocate the right of a State to secede in disregard of constitutional laws. He was not in favor of coercing a State. A State was an ideal thing; but the Constitution and laws of the United States operate on the people, and, when violated, their enforcement-was against individuals-as in the cases execution and violation of the fugitive slay law. Then with what consistiency could & man say, if the people of Charleston, Cincinnati, Chicago or Detroit, resist the collection of the revenue, they should not be punished? He was gratified at the introduction of the resolution of Mr. Jenkinson for punishment of the men that fired on the Star of the West. Mr. Heffren would say 100,000 would resist the enforcement of the laws he begged him not to include the Democracy Of the Fourth Congressional district. He expressed his warm admiration of the course of Senator Johnson, of Tennessee, and others, in the present crisis, including Mr. Holman, his district's representative. But his ears were not deaf to the voice of compromise. He would accept anything fair and honorable on both sides. He objected to the assailment of the Christian ministry in the minority report And if the report can bear the construction' that the Democracy will resist the execution of the laws, he could give it no countenance whatever. He was for the Union as it has been, now is, and he hoped ever would be. To countenance the non-enforcement of the laws was anarchy-despotism. To prevent the effusion of blood he was willing to accept the Border States proposition, or the Crittenden amendments. The fathers were all concession men the Huguenot of South Carolina, the Catholic of Maryland, the Quaker of Pennsylvania. But those who had trampled on the Constitution should not escape condign punishment.
He had understood that Governor Morton issued circulars to those men whom he appointed to ascertain their views on the propositions of remedy. He disliked that; for it was desirable that these men should go up uninstructed and untrammeled, to consider of the terms of conciliation. Indiana should have responded to the call of Virginia, without qualification, because we came out from her. He would hail with great delight a favorable consummation of the labors of the Washington convention which convenes this day. He felt the solemn responsibility of his own position here, on this question, and was earnest for the perpetuity of the Union.
Mr. GRESHAM considered the minority report. It assumes that the difficulty arose out of the infidelity of the North to the Constitution. Hardly a Democrat could believe that. He took the admission of Mr. Jenkinson, that the South wanted the extension of slavery, and that the Republican platform was in the way of that. He believed that if the Union were dissolved, it would be because the North had conceded too much. Now it was demanded that slaves should be recognized as property, and be taken to the Territories and be protect ed as such. If a slave was property, as a horse, where was the necessity for a fugitive slave law? That law was an admission page: 169[View Page 169] against the assumption. The assumption that slaves are recognized as property in the Constitution, was new. The power of Congress over the institution, and the anti-slavery policy of the early days of the government, was seen in the ordinance of 1787. The same principle was recognized in 1820 in the Missouri Compromise, which was disregarded in 1850, and removed in 1854, upon the demand of the South. Even Mr. Pugh acknowledged lately in Cincinnati, that the great mistake of the Democracy was in their submission to the slave power. His effort was to show that the North was not in the wrong in this conflict. He read from the minority report to show that it was to be understood as justifying the South, as sternly and properly protecting their own rights." This was also endorsed by Mr. Heffren, in his speech last Friday. He could hardly expect to hear the endorsement of this doctrine from any other man on this floor. Secession was justifiable! Resistance to the laws was justifiable !! He indicated the inconsistency of Mr. Heffren's position in this speech, with the doctrine of the first report of the Committee of Thirteen, to which he was fully committed. How could he say, after that, that he would interpose his body as a rampart, to resist the Federal force called out to execute the laws of the South? In a time like this, he could co-operate heartily with the gentleman from Dearborn, except that he could not go with him for the Crittenden amendments. Mr. Heffren, but seven days before his speech last Friday, declared, also, that he could not accept the Crittenden propositions. That Crittenden amendment would be construed so as to carry slavery where the people do not want it. He could not endorse that. He did not think the common mind could submit to that anywhere. Such a thing to be done for compromise and peace ! It was a plan to subjugate the majority in the Southern Territories. Was not the conscience of the Northern to be respected ?
Mr. ATKISSON. The people can make their State Constitution free.
Mr. GRESHAM. Certainly. But he assumed that the power of the Government would drive out the majority, and force the adoption of slavery. He recognized fraternity with the South. He would concede some things. He would divide the territory now free, and say, North of that line it shall be free-South slave, subject to popular will, without question or restraint. He could never consent to a proposition that would not recognize the control of the majority in all cases. He did not believe in the patriotism of South Carolina. That vanished in their response to the call of Virginia. In that they declared that their separation to be final, and they would have no compromise. Such a people, if they ever came into the Union, it would be the force of necessity that would drive them back. The minority report also stated, by indirection, that the Douglas platform was a mere empty abstraction, to be given up for peace-to be"laid as a sacrifice upon the altar of our country." It is called "a specious fallacy in regard to slavery." Was popular sovereignty a specious fallacy ? Would Democrats submit now to what they declared at Charleston they never would? He believed that Democrats here in this minority report were committed to that which their maturer judgment could not sanction. The man that puts himself in the way of resisting the enforcement of the laws, puts himself necessarily in the position of a rebel and a traitor. He believed that some men, in the ardor of speech, said things stronger than they think or feel. He felt called on to dissent from the declaration of Mr. Heffren. He gave him the benefit of the explanation, that he would resist coercion against States, as States. The punishment of rebels and resistants of the laws, was quite a different thing from war against a State. He hoped to hear further Democratic expositions of this minority report.
Mr. McCLURG next obtained the floor.
Mr. STOTSENBERG obtained leave of absence.
Mr. ROBERTS submitted an order, which was adopted, requiring the chairmen of committees to give notice to the authors bills, of the time they will be reported.
The House then adjourned.
IN SENATE.
TUESDAY, February 5,1861.Mr. ROBINSON presented a petition from the Mount Sterling Turnpike Co., praying an amendment to their charter, so that they can charge a higher rate of toll, which was read and referred to the Committee on Corporations.
Mr. MARCH, from the Judiciary Committee, returned his embezzlement bill [S. 1]-see page 6-with amendments recommending passage.
NEW PROPOSITIONS.
The following bills were passed the first reading, without objection :
By Mr. MELLETT: [124] An act authorizing Circuit Courts to hold adjourned and special terms fixing the compensation of Judges and Prosecuting Attorneys thereof, and to legalize terms heretofore held.
By Mr. TARKINGTON : [125] To subdivide tracts of land in the several townships of Monroe and Gibson counties.
By Mr. LOMAX : [126] To repeal so much of an act to provide for equalizing the appraisement for taxation of real property, approved May 28, 1852, as authorizes the holding of District and State Boards of Equalization.
By Mr. ROBINSON: [127] Authorizing County Auditors to issue fee bills.
page: 170[View Page 170]A MESSAGE FROM THE HOUSE
Announced the passage by that body of the bill [H. R. 119-see page 121;] also, the bill [H. R. 152-see page 136.]
FEDERAL RELATIONS.
Mr. JONES made an ineffectual motion-yeas 20, nays 24-to suspend the order of business, and take up his motion submitted some days since, to re-consider the vote adopting the resolution referring all matters concerning the affairs of the country to the Committee on Federal Relations.
Mr. SHOULDERS presented resolutions adopted at a mass meeting of the Democracy of Gibson county, recently, having reference to the state of the Union; which were read.
Mr. CLAYPOOL presented a preamble and resolutions adopted by a conservative meeting of citizens of Fayette county ; (the Democracy, finding themselves in a minority, as is usual in that county, having seceded,) which were read.
These were referred to the Committee on Federal Relations.
Mr. SLACK presented resolutions, desiring that they be read.
Mr. CONNER, and others, objecting-
The PRESIDENT decided them out of order, unless a motion be made to suspend the order of business.
Mr. SHOULDERS made that motion.
On motion by Mr.ANTHONY-yeas 25,nays 21-the motion was laid on the table.
THE PROTECTION OF FISH.
The PRESIDENT announced the consideration of the unfinished business of yesterday being Mr. Claypool's bill [S. 40see page 46] on the third reading. A motion pending to re-commit, with sundry instructions-
Mr. STUDABAKER. I desire to propose additional instructions, for the reason that I know the provisions of the bill will not suit a portion of my constituents. Amend so as to exempt the St. Mary's river.
Mr. SLACK: So amend as to authorize the taking of catfish and suckers at any season.
Mr. ODELL: So amend the bill as that the restrictions shall have no force or effect except from the first day of May to first day of October of each year; and not to prohibit the construction of dams across streams for water power purposes.
The bill was recommitted, with the various instructions offered yesterday and to-day.
SHEEP KILLED BY DOGS.
Mr. Jones' bill [S. 16-see page 30] being read the third time-
Mr. J. said : The bill simply provides for procuring statistics as to the number of sheep killed or injured by dogs, and their value, not providing any remedy whatever.
Mr. LINE. Some Senators may feel disposed to vote against this bill because of the increased expense. But it is the only way we can get tangible data. Ohio has adopted a similar law.
Bill finally passed by yeas 43, nays 2.
[On motion by Mr. LANDERS, his bill [S. 49-see page 69] was taken from the table and referred to the Judiciary Committee.]
PUBLICATION OF NOTICE OF TRIALS.
Mr. Conner's bill [S. 18-see page 30] being read the third time-
Mr. C. said : This bill is simply to limit the time of publication from sixty days to thirty days. Under the change now proposed, fifty, one days will have to intervene from the first publication to the day of trial; and that is deemed amply sufficient as a notice to non residents.
Bill finally passed by yeas 46, nays 1.
CONVEYANCE OF PUBLIC PROPERTY.
Mr. Shoemaker's bill [S. 26see page 30 of these Reports] being read the third time-
Mr. S. said : While this bill is general in its terms, it is entirely local in its application and can in no manner affect any county but the county of Perry, which I represent, and the citizens of which desire its passage.
Mr. Line and Mr. Mellett, having been on the Committee to which it was referred, assured the Senate the bill could affect no other county than Perry.
Mr. ANTHONY was opposed to this kind of legislation, but acceding to the representations of the Senator who introduced the bill, would vote for it.
Bill finally passed by yeas 43, nays 2.
TRACT BOOKS, ETC., EVIDENCE.
Mr. Wilson's bill [S. 44-see page 69 of these reports,] being read the third time-
Mr. MARCH. The object of this bill is to supply a defect in evidence relating to date of entry of lands. It is in substance the law in existence in '43, but omitted in the statutes of '52. It makes tract books, catalogues, &c., prima facia evidence of the facts stated in them relating to the title of land.
Bill finally passed by yeas 47, nays 0.
REPORTER OF SUPREME COURT.
Mr. Mellett's bill [S. 45-see page 69 of these reports,] being read the third time-
Mr. MILLER moved to recommit to the Judiciary Committee, with instructions to amend so as to allow the Reporter, in his discretion, to publish in the reports references to cases cited in the briefs of counsel, not exceeding twenty-five pages in each volume.
Upon Mr. Mellett's assurance that the bill provides as this amendment proposes, Mr. Miller withdrew his amendment.
Mr. NEWCOMB moved to recommit, with instructions to provide that if the decisions of a single term shall not amount to the number of pages now required by law, the Reporter may, notwithstanding, publish a separate volume for each term.
Mr. HAMILTON offered additional instruc page: 171[View Page 171]tions, so that no more shall be charged for the publication than a proportionate amount, equal to $3 per 600 pages.
The motions were agreed to.
STRUCK JURIES FOR CIRCUIT AND COMMON PLEAS COURTS.
Mr. Newcomb's bill [S. 49see page 69 o these reports,] being read the third time-
Mr. NEWCOMB. This bill provides that either party may notify the other that they want a special jury ; the clerk selects a num ter of names, each party strikes off twelve leaving a sufficient margin for challenge. I is very rare that cases requiring such juries may come up, but in settlement of co-partnership of long standing, &c., they are sometimes needed.
The bill finally passed by yeas 32, nays 10
COMMON PLEAS COURTS IN NEW COUNTIES.
Mr. Turner's bill [S. 54-see page 69 of these reports,] being read the third time-
Mr. TURNER. There is now no law for holding common pleas courts in new counties and this bill provides the same means for common pleas that are provided for circuit courts. I don't know of but one county in the State which it will affect, and that is Newton county.
Bill finally passed by yeas 40, nays 1.
COMMON PLEAS ATTORNEY'S SALARY.
Mr. Line's bill [S. 54-see page 69 of these reports,] being read the third time-
Mr. L. said. I introduced this bill at the instance of a friend, with the understanding that it might take its course. I believe he was a district attorney.
Mr. WOLFE moved to recommit the bill with instructions to strike out all that portion of the bill requiring the payment of the common pleas prosecutor's fees out of the county treasury in case of insolvency of the defendant.
Mr. STUDABAKER. I have no doubt but there ought to be some provision made for the payment of prosecuting attorneys, since the change of law giving common pleas courts jurisdiction in felonies, most of those cases are tried in that court. It so happens that most persons convicted of that kind of offense have nothing from which costs can be collected, and necessarily forces the prosecuting attorney to prosecute without compensation. We pay circuit prosecutors a good salary, and their labor is not as much as the common pleas prosecutors. When an attorney goes into a case of importance, with the fact staring him in the face that he is to receive no compensation, he goes into it reluctantly.
Mr. MlLLER. I hope the bill will not be recommitted. The only objection is, that it does not give the district prosecutor fees enough. There was a difference of opinion between the members of the Judiciary Committee upon this bill. It seems to me folly to enact penal statute laws for the punishment of crimes, have courts for the trial of criminals, elect prosecutors to conduct these trials, and then knock the whole thing in the head by refusing to pay the prosecutor anything for his labor. This is the reason why our laws are not enforced any better than they are; this is the reason why so many criminals go unpunished. The administration of ,our penal laws has become so lame, it is unfrequent that we have a conviction of any high crime in this State. I think the prosecutors ought to have a salary in addition to what this bill gives, of $300, and then I doubt whether you could get attorneys of talent, energy, and learning sufficient for the place, to take the office. It is a very responsible position, and one in which the officer ought to be well paid. You can not expect men to work for nothing. So long as you fail to pay your attorneys, so long will you fail to have a just execution of the laws. I believe in bringing criminals to justice, and preserving the purity of society as far as possible.
Mr. HAMILTON moved additional instructions, giving the prosecutor $400 a year out of the State Treasury, and a fee of $5 on all convictions on plea of not guilty; $2 50 for conviction on plea of guilty, the docket fee to be collected from the defendant.
Mr. WOLFE. I am in favor of paying prosecuting attorneys well for their services; in fact I am in favor of all persons who labor for the country being paid a just compensation. I understand the bill before the Senate amply pays without making the county treasury pay in addition. Most of these cases would be gotten up for the express purpose, I fear, of saddling costs upon the county treasury. Attorneys are very fond of fees. I am opposed to any further drafts upon the county treasury for any purposes whatever.
Mr. CRAVEN. It appears to me the Senator from Harrison misunderstands the provision of the bill. He objects to it because he supposes some corrupt prosecutor for the purpose of getting fees will bring up a great many cases before the courts for trial. By the terms of the bill there is not one dollar going to the prosecutor, except in case of conviction. I am opposed to the instructions oming from the Senator from Allen, [Mr. Hamilton.]
Mr. CLAYPOOL. I favor the bill as a matter of economy. The present system of common pleas prosecuting is a perfect farce, and I believe if this bill were passed it would intro-duce a better class of prosecuting attorneys. Make them a fair allowance to be paid out of he county treasury, for if it is to be paid by the defendant it is never paid; hardly ever.
Mr. ANTHONY. I think Senators in this bill have overshot the mark. I think the object of this bill is to raise to the dignity of a high and responsible office attorneys in the various common pleas districts of this State where there is comparatively no criminal business. Go into the large cities, and you page: 172[View Page 172]will find that you have created a general act that will pay prosecuting attorneys $10,000 per year. Nearly this entire compensation would have to come out of the country treasury, because there are scarcely ever any persons convicted who can pay. I want to pay them a fair and liberal compensation, but as I said at first I think gentlemen have rather overshot the mark. I am in favor of recommittal.
Mr. MELLETT. I am not prepared to vote for this bill as it is. I think the trouble exists from the fact that we have two courts of criminal jurisdiction. If we had but one court and a prosecutor with a salary of $500 and fees, it would be a good office, commanding the best legal talent in the State.
Mr. MARCH. With all deference to the arguments of Senators, I do not believe gentlemen can better the bill, I believe it will provide reasonable compensation for the prosecutor, and will call into requisition parties able to discharge their duties. Now the common pleas prosecutor gets almost nothing, and this is to supply that deficiency in the law.
Mr. WHITE. I would prefer this bill to any instructions offered. As I understand it under the present system the prosecutor can prosecute just such cases as he pleases; in other words, he is both prosecuting attorney and grand jury. No matter how full of criminals the jail is, except those whose crimes are punishable by death, he can exercise his own volition whether to prosecute or not. I think the prosecuting attorney ought to be paid well for his services. I am for paying officers in order to bring out talent; but there are many who would lay still on a salary and never show themselves in court.
Mr. SHIELDS. If there is any thing above another the tax-payer complains of it is paying officers and not knowing what we are paying them. The biggest tax-payer in the county can hardly answer the question, what is the salary of your county officers ? Why are these sums so large? It conies just in the same way this bill provides. Let the provision be that the compensation shall under no circumstances reach so and so. We ought to reflect before passing this bill.
Mr. RAY. I do not fear the pay of the prosecuting attorney will become excessive. If I thought I could bring the people to realize what a mockery our whole judicial system is the extent of the judicial degredation of this State growing out of reckless, hasty, and in some instances, ignorant legislation of the few years past; or if I was not sure we were not going to have any re-organization of the judiciary, I would vote for the bill. The whole system is sunken and we should re-model it. I believe if the common pleas court were abolished and the whole business of that court committed to the circuit court, give the prosecutors a stated salary of $1000 and then you can command the services of able men who will discharge the duties with honor to to themselves and justice to the public. I believe the saving to the State would be about one-third of the present expenditure of the whole judicial system.
Mr. COBB. I agree with the Senator from Shelby, in reference to our judicial system; but I do not believe there should be any radical change as to that system now, therefore I am anxious we should do all we can to per feet the system as it is. I am opposed to all the amendments. I can see that the spirit of this bill is correct.
Mr. TARKINGTON. I am in favor of the bill with the following additional instructions: "In no case shall the Board of Commissioners pay any of said fees until the clerk of the Court shall certify that said fees cannot be collected of the defendant."
Mr. WOLF. Instead of abolishing the common pleas system, I would strike from it all criminal jurisdiction. If you give the probate system to the circuit court or to the clerk by a surrogate system it will never be attended to properly. * * * The prosecuting attorney is amply paid under the provisions of this bill without taxing the county treasury one cent.
Mr. MURRAY. If the bill is to be recommitted I desire to offer the following instructions in accordance with the request of the district attorney of the common pleas court in my county: "Strike out all after the enacting clause," &c., giving a salary of $300 out of State Treasury : and two fees of $5 and $3 each, $2 50 and $ 2, to be recovered from the defendant.
The bill was recommitted with several instructions by way of amendment.
Mr. MARCH offered instructions, which were referred by consent, adding to the last section that the county commissioners shall make no allowance for fees for the district attorney, under the provisions of this act, until furnished with a certificate of the clerk of the court stating that the defendent is insolvent; the attorney shall receive no compensation from the public treasury except as provided in this act, and on failure to attend the court shall appoint a substitute who shall receive compensation out of his fees.
And then the Senate adjourned.
HOUSE OF REPRESENTATIVES.
TUESDAY, February 5,1861.On motion by Mr. STOTSENBERG, it was ordered that the State Historical Society have the use of this Hall to-morrow evening.
Mr. HAYES (by unanimous consent,) submitted a resolution, which was adopted, instructing the Judiciary Committee to inquire into the constitutionality of a law apportioning the State for senatorial and representative purposes, having been made under the Constitutional provision in the 4th section of the 4th article.
page: 173[View Page 173]PETITIONS.
Mr. STOTSENBURG presented the petition of sundry citizens of Clarksville, in Clark county, submitting that the fund referred to in the 16th section of the schedule of the Constitution, are not applied according to the intention of that instrument, and asking for legislation in the premises. It was referred to the Committee on Education.
WORK FOR COMMITTEES.
On motion by Mr. DAVIS, the House proceeded to the consideration of bills on the second reading.
Mr. Orr's bill [87,] exempting parsonages from taxation ; Mr. Kurd's bill [95,] to provide a board of seven examiners for physicians and surgeons, with Mr. Roberts' s amendment for three members of the board in each Congressional district; and Mr. Stotsenberg's amendment for defining specifically the misdemeanor to be punished, were severally referred to the Committee on Rights and Privileges.
Mr. Packard's bill [88,] to repeal section 13 Of the justices' act; Mr. Gifford's bill [92,] prescribing the duties of clerks, justices, auditors, and treasurers, in reference to jury fees, fines, forfeitures, and unclaimed fees ; Mr. Atkisson's bill [98,] to amend section 3 of the act of March 5, 1859, requiring surviving partners to file inventory, &c.; Mr. Brucker's bill [99,] to amend the act for the safekeeping of the public moneys; Mr. Packard's select committee bill [109,] to regulate insurance prior to the 17th of June, 1852 ; and Mr. Erwin's bill [113,] to amend the recorder's act of May 21, 1857, were severally referred to the Committee on the Judiciary.
Mr. Henricks's bill [97,] to amend sections 6, and 7 of the divorce act of March 13, '52; Mr. Atkisson's bill [96,] to amend sections 2, 3, 4, and 5 of the act for working highways on county lines; Mr. Williams's bill [103,] to providing bridges across streams dividing counties, were severally referred to the Committee on Rights and Privileges.
Mr. Roberts's bill [89,] to amend section 9 of the general banking law, and Mr. Hayes's bill [111,] to amend section 6 of the general banking law of March 13, '55, with Mr. Edson's amendment, "That no stocks or bonds shall be deposited except Indianas and United States," were referred to the Committee on Banks.
On the motion of Ms. STOTSENBERG, Mr. Collins of Whitley's bill [152,] to amend section 19 of the common pleas act of March 5, 1859, (affecting the terms in Whitley county, &c.,) was considered, and passed the third reading in the House of Representatives-yeas 73, nays 6.
A Senate message announced the passage of sundry bills.
Mr. Turner's bill [90,] providing for registration and defining the residence of voters ; and Mr. Dobbin's bill [110,] to amend section 4 of the act regulating special elections, were referred to the Committee on Elections.
Mr. Collins of Whitley's bill [93,] apportionment for senatorial and represeutative purposes, was referred to the Committee of Eleven on that subject.
Mr. McLean's bill [94,] appartioning the pay of common pleas Judges amongst the counties, was ordered to be engrossed.
Mr. Brucker's bill [100,] to authorize county commissioners to sign certificates of purchase of saline lands for school house sites, &c., was referred to the Committee on County and Township Business.
Mr. Jones of Tippecanoe's bill [101,] to repeal two sections of the act of Feb. 12, 1855, extending terms of circuit courts by adjournment, &o., was referred to the Committee on Organization of Courts of Justice.
GAME LAW.
The bill from the Committee on Rights [102,] to amend sections 3 and 4 of the game law, coming up-
Mr. WOODS proposed to amend the section relating to prairie hens, by striking out "the first of August" and inserting "the first of September." It was well known that during the month of August the prairie hens were so small that they were not worth killing ; and the Chicago hunters invaded the fields of the farmers at a time when they could not take part in killing the birds they had fed, &c.
Mr. MOODY. August was the best month in the year to hunt prairie hens. The gentleman could gain his object by adding a penalty to prevent hunters from entering inclosures, and he would vote for it. On his motion, the amendment was laid on the table.
The bill was then ordered to be engrossed.
THE MILITIA.
Mr. Gresham's bill [105,] for the organization of the militia, to provide a military fund, to provide for its disbursement, &c., coming up-it was passed the second reading, by title, under a dispensation.
Mr. ROBERTS proposed various amendments, and moved that the bill with the amendments be referred to the Committee on Military Affairs. He did not think this bill, in its present shape, could ever pass this House. Its passage and approval by the Governor would be equivalent to the passage of a military despotism in this State. The people of Indiana would not comply with its provisions-never would submit to them. Courts martial, by this bill, were invested with as much power ac the Circuit and Common Pleas Courts in time of peace: and it gives into the Governor's hands as much power as that exercised by the Czar of Russia. Whenever he believes the public danger requires it, he has the power to compel every man in the State required to bear arms to muster into active service. It was left to his discretion. In his opinion,when the exigencies of war require it, there is love of country enough to respond to the proper page: 174[View Page 174] call from the General Government, and rally to the standard by thousands and tens of thousands. The history of the Mexican war showed this. There were more troops volunteered than- there were places for them.
The bill was referred to the Military Committee.
On motion by Mr. HEFFREN, his bill [146] regulating the same interest, was taken up,, passed to the second reading by title, (under dispensation,) and referred to the same Committee.
The Judiciary Committee's bills [106, 107] to amend the 12th section of the misdemeanor act. of June 15, 1852, and to amend section 343 of the Practice Act, were ordered to be engrossed.
Mr. Packard's Select Committee bill [108] to regulate foreign insurance, was ordered to lie on the table, and be printed.
MOREHEAD, HALL & CO.
Mr. JONES of Tippecanoe's bill [112] providing for examination and adjustment of the claims of Morehead, Hall & Co. for work done on the Wabash and Erie Canal, coming up-
Mr. CASON moved an indefinite postponement.
Mr. JONES of Tippecanoe. This was not a bill asking the legislature to appropriate money. It proposed to refer this claim to a board, to be investigated. He thought the bill should go to a committee. The board was the Attorney General, Secretary, Auditor and Treasurer of State. They were to ascertain whether there was anything due, and report.
Mr. SMITH of Bartholomew. This claim was presented here four years ago, and occupied a considerable portion of the time of the session. There were men here lobbying, and attorneys urging the propriety of allowing the claim: and he remembered conversing with men of information in the matter who affirmed, that there were more than fifty other claims of the same class ; and Governor Wright had told him that Morehead himself was disgusted with the application and ready to give it up, because it cost him so much.
Mr. FISHER had examined the testimony in this case-knew the witnesses-honorable men. But the examination had stopped short of getting at the gist of the case. It did not show the matter as the same witnesses would have shown it if the examination had proceeded farther. But what would induce him to vote for the postponement was, taht the Attorney General (one of the Board) had prejudged the case-had given his opinion that the State is debtor to Morehead & Co.; something more than $9000 and and 15 years interest. He had succeeeded the general superintendent in charge of that work, and knew what he stated.
Mr. NEBEKER. Was not this case identical in principle with the Beard case ?
Mr. FISHER. It was entirely different.
Mr. CASON. It was an old case requiring strict investigation. The Attorney General, instead of looking to the interest of the State, under this bill, could do no more than hear the case as a judge. He concurred in the motion to postpone.
Mr. FISHER. Morehead, Hall & Co., were contractors. They failed to give assurance to the superintendent (Lucas), of completing the work in time, and Lucas took it from them and placed it in the hands of an agent. If they were deprived of their contract illegally the amount of damages the company sustained would be the measure of relief. He supposed it could be shown in evidence, that this company had done the most profitable portion of the work before it was taken from them; and also that it cost, the State more to finish the work, than it would have cost under their contract.
Mr. PARRETT supposed the bill had better be postponed. It was doubtful whether the claim was good or not-doubtful whether the State was liable. He thought the interests of the State would be better protected in the courts. If Lucas's act was tantamount to declaring the contract void, then the State is liable. But we might spend all the time of the session on private claims like this. Besides, the public officers had all they could well do, and it were unwise to add to their responsibilities. He should not wonder to see hundreds of claims for damages of this sort coming up from the north part of the State.
The bill was indefinitely postponed.
ONE SESSION A DAY.
On motion of Mr. CAMERON, his resolution to change the sessions to one session a day, was taken up.
Mr. SHERMAN and Mr. WOODHULL favored the change.
Mr. SMITH, of Bartholomew opposed.
Mr. COLLINS, of Adams, proposed to amend so that the rule shall not be in force beyond the 20th of February.
Mr. PROSSER proposed to limit the rule to the 10th of February.
Mr. ANDERSON proposed to fix the adjournment each day, at 12 o'clock.
Mr. EDSON proposed that the House meet at 8 o'clock in the morning.
Mr. FRASIER demanded the previous question, and under its force, the amendments were rejected, and the resolution of Mr. Cameron was adopted-yeas 57, nays 20.
AFTERNOON SESSION.
Mr. Lee and Mr. Black has leave of absence on account of sickness.
Mr. ROBERTS (by unanimous consent) presented the petition of Jacob Miller and others, for a tax of five dollars on dogs; which was referred to the Committee on Agriculture.
The SPEAKER announced the special order viz: the consideration of Mr. Branham's bill [1] the Embezzlement bill, entitled, an act defining certain felonies and misdemeanors, and page: 175[View Page 175]prescribing punishment therefor, and providing certain evidence on the part of the State -the question being, Shall the bill pass the 3d reading?
Mr. HEFFREN submitted that the bill should be amended in the last section, so as not to take effect and be in force till its publication ; which was agreed to.
Mr. FRASIER inquired how, as required in the 11th section,the Auditor could know whether or not there was money in the Treasury begging to any particular fund, &c.
Mr. HEFFREN. That was for preventing school funds from being illegally drawn.
Mr. VEATCH. If the Auditor's books were rightly kept, he would always know what money was in the Treasury belonging to each fund.
The bill was passed the final reading in the House by yeas 74, nays 2-one present and refusing to vote.
Its leading provisions are : 1. Making it a felony for any officer or other person entrusted with money, fund, security, &c., of the State, to convert them to his own use, &c. He shall be deemed guilty of felony, punishable with confinement in the penitentiary not less than one nor more than twenty-one years, and in a fine not exceeding the value of the money, &c., so used; and refusal to pay over to person entitled to receive, to be held as evidence of such felony. 2. False statement of the amount of money on hand, to be a felony,-confinement not less than one nor more than fourteen years. 3. If the Treasurer of State shall pay out or receive any public money, except as prescribed by law-not less than fifty dollars, nor more than five hundred, and imprisoned in the county prison not less than one year. 4. If he accept any warrant or voucher from any creditor of the State without having paid the same to such creditor, in such funds as he may have received for disbursement-he shall be fined in a sum equal to the amount withheld, and confined in the county jail-not less than one nor more than twelve months. 5. If the Secretary, Auditor, or Treasurer of State shall receive any fee or perquisite, and fail to report it to the Treasury-he shall be fined in double the amount so received and imprisoned in the county jail-same term. 6. The Treasurer of State refusing to pay funds to the person entitled to them, or failing to deliver up money papers at the expiration of his term-to be imprisoned in the Penitentiary not less than one nor more than twenty-one years, and fined in any sum equal to the amount withheld. The remaining sections prescribe punishment where a State officer prevents examination of his office under authority: To punish the Auditor if he draw a warrant on the Treasury when there is no money for the purpose: and to punish the Treasurer if he pays any claim out of another fund than that appointed for the especial purpose.
Mr. STOTSENBERG quastioned whether the title expressed the subject matter of the bill, as required by the Constitution.
But it was not disturbed.
WORK FOR COMMITTEES.
Mr, Packard's bill, [114] To amend the first section of the act of May 20, 1852, for the incorporation of Manufacturing Companies, so as to allow of the supply of motive power and cities with water, was considered on the second reading, and referred to the Committee on Corporations.
Mr. Burgess' bill [115] To amend the exemption acts of 1852 and 1859 : Mr. Brucker's (descent) bill, [126;] Mr. Bundy's bill [129] To amend section 178 of the decedents' estates act of June 17, 1852, Mr. Stotsenberg's bill [130] requiring certain pleading to be sworn to ; Mr. Hopkins' bill [131] To vacate canal in Evansville; Mr. Speaker Allen's bill [134] in relation to witnesses-practice act, section 283; Mr. Packard's bill [134] To amend section 476; Mr. Jenkinson's bill [139] for married women, and Mr. Bundy's bill [143] To repeal section 9 of the fees and salaries act were severally referred to the Judiciary Committee.
Mr. Cason's bill [116] To require patent medicines to be labelled with their ingredients; Mr. Edson's bill [135] To amend section 6 of the assessment act so as to exempt personal property of widows to the value of $300 from taxation; Mr. Sherman's bill [140]-President of Sinking Fund to make deed (for old State Bank)-were severally referred to the Committee on Rights and Privileges.
Mr. Fisher's bill [117]money for the State Agricultural Board$4,000was referred to the Committee on Agriculture.
Mr. Stotsenberg's bill [118] To authorize Judges to make orders in vacation; and Mr. Edson's bill [124] to correct defects of deputy clerks, were referred to the Committee on the Organization of Courts.
Mr. Knowlton's bill [91] Extending the Eel River Seminary act of June 27, 1847, was referred to the Committee on Corporations.
Mr. Heffren's bill [121] To authorize county work houses, was referred to the Committee on County and Township Business.
Mr. Jones of Vermillion's bill, [122] To make Vermillion, Parke and Putnam a common Pleas district, was referred to a Select Committee of Three.
Mr. Jenkinson's bill, [123] For vacation of streets and town lots, and Mr. Gifford's bill, [127] To give Common Pleas clerks custody of probate papers, were referred to the Committee on the Organization of Courts.
Mr. Kendrick's bill, [125]-Punishment of election frauds-(with a substitute by Mr. Parrett) was referred to the Committee on Elections.
Mr. Bryant's bill, [132] To amend the 23d section of the assessment act, was referred to the Committee on Ways and Means.
The Committee bill [136] To protect fish; page: 176[View Page 176] and Mr. Edson's bill, [142] To amend section 51 of the act of June 14, 1852, (so as to limit the sanction of the usury law to $1,000) were ordered to be engrossed.
The Committee's bill, [137] To amend sections 94 and 95 of the assessment act; Mr. McLean's bill, [138] To restore the city corporation law of March 9, 1857; and Mr. Knowlton's bill, [144] To amend section 94 o the assessment act, were severally referred to the Committee on County and Township Business.
Mr. Anderson's bill, [141] To amend the 20th section of the Supervisors' act, coming up-
Mr. Combs proposed to amend by striking out all that relates to taxing land by the acre &c.
The bill and proposed amendment were referred to the Committee on Roads.
The House then adjourned.
IN SENATE.
WEDNESDAY, February 6, 1861.Messrs.BEESON and CARNAHAN presented petitions pray ing for legislation against sheep-killing dogs, stating the annual loss thereby is more than all the dogs in the world are worth; which were read and referred to the Committee on Agriculture.
Mr. NEWCOMB presented a memorial from T. A. Goodwin, asking for the State Printing and Binding at 25 per cent, discount on the prices now allowed by law; which was referred to the Committee on Printing.
Mr. ANTHONY presented a petition from citizens of Putnam county, not objecting to the repeal of the new county acts of '57 and '59, but praying for a proviso saving all pending proceedings.
REPORTS FROM THE FINANCE COMMITTEE.
By Mr. STEELE. Returning a petition from citizens of Warren county, recommending its reference to the Committee on Claims.
By Mr. CONLEY. Returning a petition praying the suspension of the collection of debts by sale of property for one year, recommending that it lay on the table, inasmuch as a bill is before the Senate embracing the same object.
By Mr. MELLETT. Returning Mr. Wolfe's bill [S. 37-see p. 46,] recommending passage. Also the bill [H. R. 104-see pages 111 and 117,] reporting it back for the action of the Senate, with the opinion that it is impracticable to incorporate the proposed amendments.
By Mr. BLAIR. Returning Mr. Line's bill [S. 38-see p. 69,] with an amendment providing but one instead of two dockets, recommending passage.
Mr. HALL, from the Committee on Roads, returned Mr. Miller's bill [S. 36-see p. 69,] recommending passage.
These reports were severally concurred in.
REPEAL OF THE NEW COUNTY ACTS OF 1857 AND 1859.
Mr. CONLEY, from the Select Committee thereon, returned Mr. Turner's bill [S. 43-see p. 69,] recommending passage.
Mr. CONNER moved to concur with an amendment providing that nothing in this act shall be construed as effecting any proceedings had and pending under the act of '57.
Mr. ANTHONY, as a minority of this Committee, submitted a written report recommending the passage of the bill with a proviso that this act shall not be construed to effect in an wise any proceedings under the acts of '57 and '59.
Mr. CONNER. Citizens under the act Of '57 have affected some changes that seem to be demanded by the people. I have no objection to the repeal of both acts, but they should not be repealed without saving pending proceedings.
Mr. CONLEY. This thing was lobbied through the Legislature by interested parties and it is now attempted again to prevent the passage of this act for its repeal. It is disgraceful to the Legislature and to the people of Indiana that measures can be lobbied through in this manner by interested parties. Mr. C. referred to the Journals of the last session and said: No man can tell how this thing was managed. It passed through the Legislature by a system of jugglery, and is now inaugurating a system of protracted law suits and divesting persons of their vested rights. Gentlemen talk about a saving clause; now sir, that is the very thing we wish to cut off, indeed it is necessary we should do so to guard older counties. I hope the report of the majority will be concurred in, and I think Senators, when they understand this thing will see the necessity of the passage of the bill.
Mr. STUDABAKER. The motion of the Senator from Wabash and the minority report, it occurs to me admit the wrongfulness of the present legislation upon this subject. The proposition as reported is to repeal all laws on this subject, and the motion is to concur in that report saving the proceedings now pending under these laws. It occurs to me to be a strange position to admit the wrongfulness of the present legislation, and at the same time undertake to save the rights pretended to be acquired under that wrongful legislation. I presume the effect of the present legislation on this subject was not seen by the Legislature when the law was enacted, or it would not have been so enacted.
Mr. WHITE. With the petition that I received from hundreds of citizens of Montgomery county, in regard to this matter, as well is the knowledge I have had of the opposition to this measure by the people of Montgomery md surrounding counties, ever since this thing was got through, I should be false to my constituents and to myself were I to remain silent. Now gentlemen speak here of the page: 177[View Page 177] hasty manner in which this thing was got 1 through two years ago. So far as that is concerned I know nothing about it, only what the journals show; and indeed it does seem to me that Senators and Representatives were caught napping, from the simple fact that the Senator and Representative from my county, either one of them, knew anything about it, but they got awakened up as quick as the people found out what had been done. There is a proposition to cut off the southern part of Montgomery county-taking out two townships-and if there is a question in Montgomery county that the people are a unit upon, it is opposition to this formation of the new county. And it is not confined to the people residing outside of these townships to be affected, but the very bitterest opposition, men that have gone to the greatest length, who have expended more money and time to defeat this object, are the men who live in the territory to be affected. They knew where they were settling when they made their settlements; they knew how far they were from the county seat; they did this with their eyes open, and there are plenty of men even in this territory to be affected, who are more bitterly opposed to this clipping than persons residing out of the territory. I know it is argued with plausibility that where rights have been vested under the laws of '57 and '59, it is outrageous to thus summarily cut them off; but I tell you while they have been vested with a little, the people at large have been divested of more rights. I submit whether it is right that the people of the whole county should be divested of their rights simply to accommodate a few land sharks who wish to build a county seat on their land. Some ten years ago, for the benefit of the whole county by a vote, they voted to issue their bonds for $100,000 railroad stock, and now these gentlemen find it convenient, when this debt is to be paid, to secede. It saves their pockets immensely, while it don't change their relations to the railroad one particle.
Mr. STEELE. I hope this majority report will be concurred in. Those of us who served here last session from the district I live in, were either hoodwinked or caught napping at the time we voted for that law. I would not have done it had I known what the law contained. In the first part of last session I was urged by the Representative from Jasper county to vote for the law, to enable them to make a new county out of some large counties up there; and I told him I would vote for any local measure that would not affect my counties. According to the experience I have had in legislation, this has been the universal practice. But now we find the districts affected almost unanimously coming up here and asking the repeal of this law, which is making more difficulty than any law ever before upon the statute books.
Mr. ANTHONY. When I come here as the Senator from Floyd county, I not only represent that county, but the people of the State at large; and it is my especial duty, when a class ask for rights to be granted them, who have no representative upon this floor to see that their rights are not trampled upon by those interested. The select committee who reported this bill is made up of their friends; and their report amounts to nothing at all, and I say so without meaning any disrespect to gentlemen on that committee. If the bill had gone to a regular committee of disinterested men, their recommendation would have had considerable weight with me. I understand there is a confusion in the journals on this bill of '59. It is true the record is against me, but that is a matter of no importance with regard to this question. If we pass a law in a solemn manner, implicit obedience is expected and required. If any rights are granted by law, the people suppose they will not be taken away from them in a moment. There is nothing wrongful, as a Senator has said, in his law, that I can see; all that can be said is, that it is injudicious. In repealing these acts you must observe those rights acquired under the laws you have solemnly enacted. A greater number have petitioned for the preservation of their rights under these laws, than have petitioned for their repeal. [Mr. A. referred at some length to the efforts made to form Bourbon county out of portions of Parke, Montgomery and Putnam counties.]
Mr. MURRAY. I move to recommit the bill, with instructions to strike out all that relates to the law of 1857. I was one of those chaps who voted in the lower House for the law of 1859, under a misapprehension of its effects. The saving clause proposed by gentlemen embraces the whole question in controversy. If I have done injustice, shall I put in a saving clause, that the injustice done by my vote shall stand? No sir; if l am convinced of that fact, but I do not know as it is so in this case, it is my duty to vote against any saving clause. The law of 1857 has not harmed them or their constituents, and why do they propose to repeal it ? The law of 1859 gives the privilege to form new counties out of contiguous counties ; the law of 1857 gives no such right. All the complaint is under the law of 1859 and not under the law of 1857.
Mr. TURNER. I am opposed to recommittal. I think the law of 1857 is really productive of greater evil than the law of 1859, and they should both be unconditionally repealed. There may be rights under those laws that deserve some attention, perhaps there may be some cases really meritorious, but the law has worked badly so far as my knowledge extends. [Mr. T. recited a case in his county where great injustice would be done.] The law of 1859 never was got through by any legitimate legislation; it was by a system of legerdemain and management that never should be tolerated in any legislative body. page: 178[View Page 178] [Mr. T. traced the bill through the journals and showed where the House amendments were concurred in by the Senate, but do-not appear in the law.] The bill was manoeuvred through in that way. Whether the law is really binding is a question for lawyers.
Mr. STEELE replied to Mr. Anthony's remarks concerning the proposed county of Bourbon. As Senators have said, this bill of 1859 was passed by some hocus-pocus, and is a work that nobody knows anything about.
Mr. TEEGARDEN. I know nothing about how that bill was passed, but there is a measure gotten up under it to set off a new county from ours, and a suit is now pending thereon. It will act peculiarly hard upon our people. It cuts off a strip that comes up within about six or seven miles of our county seat. My people are almost a unit-more than nine-tenths are anxious for a repeal of that law, leaving no saving clause whatever. I have no doubt the law was passed hastily, but we think when an injury is done to any portion of the people by the Legislature, at the next session the injurious act should be repealed. I am in favor of repealing the law, not only of 1859, but of 1857.
Mr. HULL moved to recommit, with these additional instructions: To repeal the law of 1859, including the second section of the law of 1857. While I have no disposition to oppose any measure that would make new counties upon the right principles, yet I object to the cutting up of our counties for individual purposes.
Mr. CRAVENS, [Mr. Newcomb in the Chair.] The discussion of this question has but confirmed me in the opinion that we should offer the old Constitution, with slight amendments, as an amendment to the new Constitution, and submit it to a vote of the people. Although I have sworn to abide by the present Constitution, I despise it. [Mr. Slack, (sotto voce,) "Treason."] There is no better evidence for getting clear of it than is now presented to the Senate. I am opposed to the repeal of this law. Before I can be induced to vote for its repeal, I shall have to be satisfied that the law will fail to produce good, and its remaining upon the statute book can only be productive of evil. One session we pass laws, and; the next session come up and repeal them. The principle of popular sovereignty prevails in this law. [Mr. C. read a portion of it.] The question is, whether they shall have that privilege. I hold the people of this State ought to have that privilege. Shall the people be prohibited by a law, like the Medes and Persians, unchangeable and unalterable, from doing so ? The proposition of the Senator from Elkhart, [Mr. Murray,] is what I want, If it is the general opinion that the law should only ask that this second section of the law of 1857 shall be saved from repeal. I think the principle of popular sovereignty should prevail.
Mr. MILLER. I cannot favor the motion of the Senator from Elkhart, knows well I cannot. I oppose it because a portion of his constituency desire to take a portion of our county from us, and we will resist that as a matter of course. The second section of the act of 1857 is the very law under which this process may be accomplished. This kind of legislation will lead to abuses without limit, but the act of 1859 is infinitely worse. That act found its way upon the statute book by sheer fraud and imposition. I undertake to say it, and I speak what I do know from the very best authority-from men who were in the scheme and connected with it from beginning to end-that the thing was intended to be a fraud, and up for the very express purpose. Now it is pretended here that parties have vested rights, under the act of 1859. If that be true the courts will recognize those vested rights, and no act of this Legislature can deprive any citizen of his vested right under this or any other act. It seems to me, sir, that the best thing we can do is to repeal both these acts, and get up a new bill. I do not propose to save any pending cases ; these are the very cases we are designing to cut off. There is a project on foot to divide St. Joseph and Laporte counties, and make a little one-horse town-New Carlisle-a county seat. These projects generally have their origin in the design of some men who wish to make a county seat upon some property in which they are interested.
Mr. COBB. I am in favor of the amendment proposed by the Senator from Elkhart. The second section of the law of 1857 is right.
[A message from the House announced the passage of the bill [H. R. 1]-see pages 9 and 140 of these Reports.]
Mr. WOLFE. Of all the amendments proposed to the bill, the Senator from Elkhart's is the one I object to most. * * * Matters of administrative power proper belong to the legislature, and the Constitution has not given to the Legislature any power to transfer its power to the county boards, and unless they have legislative powers they cannot change the statute. I think the act is clearly against the letter of the Constitution, and if that is not the case, it is certainly contrary to the spirit which the Constitution contemplated all matters of this kind should be decided. But suppose it to be admitted that county boards shall have power to change the statute so that a county line shall be to-day what it was not yesterday, the Constitution provides that no law shall take effect until it is published; here would be a change of law without publication or notice whatever. But be repealed, I shall oppose no objection. But leaving out the question of constitutional objection, county boundaries ought to be of a settled character; they should remain permanent for a great variety of reasons. I am in favor of a repeal of these laws.
