THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
IN SENATE.
MONDAY, February 1, 1869.The Senate met at two o'clock p. m.--the Lieutenant Governor in the Chair.
The Secretary's journal of Friday was read.
The LIEUTENANT GOVERNOR announced the following committee of one from each Congressional District, authorized by Mr. Carson's resolution to inquire into the expediency of abolishing any office or reducing any fees or salaries, or of curtailing any expenditures pertaining to any State or county office, viz: Messrs. Lasselle, Johnson of Spencer, Sherrod, Huffman, Gifford, Hadley, Hanna, Wood, Gray, Case and Church.
PETITIONS AND MEMORIALS.
Mr. CAVEN presented a claim from a late Sheriff of Marion county for one hundred and ninety-seven dollars for arresting fugitives from justice.
It was referred to the Committee on Claims.
Mr. GIFFORD presented a petition praying for the erection of a suitable prison for females.
It was read and referred to the Committee on Prisons.
Mr. BRADLEY presented papers in contested election case--Mr. Lafayette Crain against Mr. Bradley--which were read and referred to the Committee on Elections, without reading.
CONTINUANCES ON ACCOUNT OF ABSENCE OF ASSEMBLYMEN.
Mr. CAVEN from the Committee on the Judiciary, returned the bill [S. 143] authorizing continuances in certain cases, recommending its passage.
Mr. CHURCH said this was a bill authorizing the continuance of cases where attorneys were members of the Legislature, and were unable to be present at this term of the Court. The bill was important, and he moved a suspension of the rules in order that it might be read the third time now, and put upon its passage.
Mr. HUGHES asked if the bill included parties as well as attorneys. Unless it did it ought to be defeated, and if it did it ought certainly to be.
Mr. CHURCH said he believed it did not.
The motion to suspend the rules was agreed to--by yeas 32, nays 4.
The question being upon the passage of the bill--
Mr. HUGHES remarked that he had not heard the bill read, but supposed the Senator for Porter [Mr. Church] had stated its provision correctly, and that it simply provided that where a man's attorney happen to have got himself elected to the Legislature, a continuance should be granted until he was at liberty again, he supposed that it was possible for parties to procure the services of other attorneys, and he could see no reason which should grant this favor to attorneys who choose to go into public life, which would not apply with ten fold force to parties. He had, himself, several cases of importance pending, in which he was a party--one of which would come on for trial the present month, and in which he would be glad to have a continuance granted; but he had no disposition to call upon the Legislature to interfere in his behalf, by the passage of a law to that effect. He saw no reason which should favor the attorney and not the party; and if the bill were so amended as to include all concerned it would be so manifestly ridiculous, absurd and unjust, that it page: 221[View Page 221] ought to be defeated. Suppose the attorney from the other side might come from a distance--from another State perhaps--here was a provision which would lay the case over until the man who happened to have got himself elected to the Legislature, should be at liberty. In some counties a favorite attorney has a hand in nearly every case in the courts, on one side or the other, and he would by this means have power to almost stop all proceedings in court. All a man need do, if he wanted his case continued, would be to get himself elected to the Legislature, and he might have it continued from term to term. Absence of an attorney was never cause for a continuance at common law, except under very peculiar circumstances, and especially where such absence was entirely voluntarily.
Mr. CARSON did not understand the bill when he voted for a suspension of the rules, otherwise he should have voted nay; though it would be of personal benefit to him, also, and he would have to ask leave of absence goon, to attend to his cases in the courts at home. He had been a member of the Legislature for the past four sessions, and had never felt like calling for the passage of such a law. He had found it inconvenient, but by the assistance of other attorney's whom he had employed to assist him, he had always managed to get along. He should not vote for the bill.
Mr. BRADLEY declared that he did not prepare this bill, though he thought it a very good one--it being a copy of the law in a sister State. He stood in a different position from the Senator from Monroe, (Mr. Hughes) in not having sought a seat in this body, and consequently the remarks in that vein were not applicable to him.
Mr. KINLEY (interrupting) stated that he was informed that a distinguished gentleman, General O. O. Howard, was in the Governor's room, and he moved that a committee of three be appointed to wait upon him and invite him to visit the Senate.
The motion was agreed to, and the LIEUTENANT GOVERNOR made the committee to consist of Messrs. Kinley, Wolcott and Gifford.
Mr. BRADLEY continued in explanation of the provisions of his bill, which he thought should commend it to the favorable consideration of the Senate. He submitted whether it was better that the entire State should suffer by the absence of a member than that a continuance should be granted in certain cases. The bill would show that it was necessary to file an affidavit showing that the employment had been in good faith and not for the purposes of delay. If compelled to ask leave of absence, the public must suffer. He believed that the correct principle--that private ends should give way to the public good.
Mr. HUGHES asked if he did not assume that no other attorney was capable of taking care of the case.
Mr. BRADLEY responded that he did, in some cases.
Mr. GREEN also had cases pending in court, and the passage of this bill would be of personal benefit to himself, but he thought it was not a proper bill to be passed. He did not like to oppose any bill calculated to favor any Senator, where he thought it could work no harm. He had himself just left home that morning, where the court was in session, but had arranged with attorneys that litigated cases in which he was concerned should be set for a certain day, when he could attend by obtaining leave of absence. It he should vote for this bill it would smell strongly of self-interest. If it embodied all persons absent from home on State business, he thought it would be less objectionable.
Mr. CHURCH did not anticipate objection to this bill, but he supposed objection might be made to almost any bill. The circumstances in the case of the Senator from Laporte [Mr. Bradley] are, that in certain cases of importance, he had been engaged for a year or more, and his services in connection with them could not easily be dispensed with. If this bill is not passed, he must be excused for a number of days--a week, perhaps--in order to attend to them. He knew it had been customary in both the Senate and House, to excuse members under such circumstances, though he believed their services were due here. The bill does not propose to make the continuance absolutely necessary, but the intention is to make it good cause for continuance, he knew several Senators who would have to go home during the session to attend to cases in court. It might not be just right to grant leave of absence in all such cases, but it had been the custom to do so. He explained that its passage would do away with the necessity for lawyers who are members of the Legislature, asking leave of absence on account of professional duties.
Mr. Church was interrupted by the entrance of the Committee escorting Gen. Howard. The Chairman of the Committee having preceded the General to the forum, introduced him to the Lieutenant Governor, who in turn introduced the General to the Senate. The Lieutenant Governor then seated the General by his side.
Mr. CHURCH continued the presentation of arguments tending to refute the objections raised by the opponents of the bill. He was satisfied that Senators, on hearing the bill read, would see that it commends itself to their favorable consideration, he did not think the argument of the Senator from Monroe [Mr. Hughes] that an attorney might get his causes page: 222[View Page 222] continued term after term by getting himself elected to the Legislature, was well founded. The session of the Legislature is limited to sixty days, and this could only cover one term of court under any circumstances.
Mr. HUGHES inquired whether the bill included criminal as well as civil cases?
Mr. BRADLEY replied that he believed it was general in its provisions.
Mr. HUGHES thought this another very serious objection to it.
Mr. FISHER, proposed to amend the bill by inserting after the word "attorney," the word "witness."
Mr. HUGHES also proposed to amend the amendment by inserting the words "or parties" after the word "witnesses."
Mr. FISHER accepted this amendment.
The bill was read for information, with the amendments, creating some amusement, as the incongruous nature of the amendments were perceived.
Mr. CHURCH thought the bill should be modified where it spoke of witnessess "being employed in good faith."
Mr. FISHER had not heard the bill read, and had offered the amendments at a venture supposing they were properly worded.
On motion of Mr. KINLEY the Senate here took a recess of fiftteen minutes in order to give Senators an opportunity to be introduced to General Howard.
Members pretty generally came forward and were presented by the Lieutenant Governor.
This ceremony having ended--
At the expiration of five minutes the Lieutenant Governor called the Senate to order.
Mr. BRADLEY moved to recommit the bill [S. 143] to the Committee on the Judiciary with instructions to amend it so as to make it applicable only to civil cases.
The motion was agreed to.
REPORTS FROM COMMITTEES.
Mr. CAVEN, from the Judiciary Committee, returned the bill [S. 60] amending section one hundred and three of the practice act, with a recommendation that it lie on the table, as the subject matter is embraced in the bill, S. 40.
Mr. SCOTT, from the same committee, returned the bill [S. 59] regulating change of venue in certain cases, with an amendment, recommending its passage.
The amendments were agreed to.
These reports were concurred in.
Mr. CAVEN, from the same committee, returned the bill [S. 95] to amend section three hundred and three of the general practice act, recommending that it lie on the table. He stated, in explanation, that the amendment proposed, was to permit interrogatories once filed to be used by either party, the same as depositions.
Mr. BRADLEY thought this a meritorious bill, and hoped the report would not be concurred in, contending that the amendment proposed was a proper and just one.
Mr. HUGHES explained the law as it now stands, and as it stood before the passage of the act. The Legislature had recently made parties competent witnesses. Formally, interrogatories were used in order to prove the conscience of an opposite party, but now the deposition of a party may be taken, and when taken, may be used by either party. Under the present law, interrogatories may be filed, for the purpose of seeing what the opposite party will swear to, and if the facts can be used against him, his deposition may be taken; but if it would not help the opposing party, it stops there, and the interrogatories need not be used. He did not regard this as fair, and insisted that the bill would not create an unfair practice in regard to the taking of depositions and the filing of interrogatories.
Mr. STEIN asked if interrogatories, under the present practice, did not take the place of bills of discovery in the old practice?
Mr. HUGHES thought that bills of discovery had passed entirely out of practice.
The report of the committee was concurred in.
Mr. CRAVENS asked and obtained leave of absence during the remainder of the afternoon, for the Committee on the Gubernatorial Mansion.
Leave of absence was granted to Mr. Howk for the remainder of the week, and for the Committee on Benevolent Institutions for the forenoon of Wednesday next.
Mr. TAGGART, by unanimous consent, offered a resolution requiring the doorkeeper to guard the desks of Senators, and preserve the papers and documents belonging thereon.
Mr. TAGGART did not intend to throw blame on any one, but had been absent for some time on account of ill health, and finds his desk to-day cleared of all papers and documents. There should be some way by which the documents and papers of Senators could be preserved.
The resolution was adopted.
STATE RIGHTS.
Mr. SHERROD offered a concurrent resolution as follows:
WHEREAS, The powers not delegated to the United States by the Federal Constitution, nor prohibited by it to the States; * are reserved to the States respectively, and to the people; and
WHEREAS, The rights of the States to regulate the elective franchise within their respective limits, is one of the reserved rights which can not be taken from them without striking down one of the fundamental principles upon which our system of government rests; therefore,
RESOLVED, (The House of Representatives concurring,) That our Senators in Congress be instruc-
* The Secretary's journal is in error here.
page: 223[View Page 223]ted and our Representatives be requested to oppose any amendment to the Federal Constitution, by which this right is sought to be taken from the States and vested in the Federal Government.
RESOLVED, That an authenticated copy of these resolutions be transmitted by the Governor to each of our Senators and Representatives in Congress.
Mr. SHERROD. Mr President: In introducing these resolutions, permit me to say that I am actuated by the purest of motives, by that spirit that animated our fathers when they established that principle which lies at the very basis of our liberties, and is of more vital importance to us than all the schemes of consolidation that were ever concocted in the fertile brains of politicians. Sir, it is the principle of State rights--of local self-government. When this principle shall have been abandoned by the people--wipe out this principle and I may say the day is not far distant when our boasted liberties will have found their grave beneath the iron heel of despotism. Sir, the leaders of the dominant party have found the people so adverse to negro suffrage, and so determinedly bent on refusing to engraft it as a principle into the Constitutions of the States, that they are determined to force it upon them if it has to be done at the expense of the most radical revolution which has yet been wrought in the character of our Government. Not content with deciding what States shall vote, and what shall not vote, it now assumes to decide what men shall vote, and what shall not vote; in all elections. Sir, this is one of the boldest and most defiant revolutionary programmes ever introduced in this country, as against the rights of the States, or of the people of the States. I was induced to introduce these resolutions from the fact that the House of Representatives at Washington, has already passed a resolution proposing to take these rights from the States. I do not propose to discuss the object--in fact I may misapprehend the object; but, sir, I hope this body may take a direct vote upon this question. I am sure there is not a Senator upon this floor but what is convinced to-day, if that proposition where submitted to the people of Indiana, it would be defeated by one hundred thousand votes. My object is this: to have a direct expression from the representatives of the people upon that question, that it may go to the Congress of the United States at once. I have no desire to detain the Senate, and if there is no other Senator that desires to speak upon the resolutions, I will move the previous question.
Mr. GRAY. In order that we may have more time to consider that question, I shall move that the resolutions be laid on the table.
Mr. SHERROD. My object is simply this: If we desire to give this expression we must do it immediately. This proposition has already passed the lower House of Congress, and I am happy to say that the member representing this District voted against it, and in that vote he represented the voice of the people of Indiana. If we permit this resolution to lay on the table it amounts to naught. Let the expression be given to-day.
Mr. JOHMSTON of Montgomery, demanded the yeas and nays on the motion to table the resolution, and--
The roll was called with the following result:
YEAS--Messrs. Armstrong, Beardsley, Caven, Church, * Elliott, * Fisher, Gray, Green, Hadley, Hamilton, Hess, Hooper, Kinley, Robinson of Decatur, Scott, Stem, Wolcott and Wood--18.
NAYS--Messrs. Bradley, Carson, Gifford, Hanna, Henderson, Huey, Huffman, Hughes, Humphreys,Johnson of Montgomery, Lasselle, Sherrod, Smith, Taggart and Turner--15.
The LIEUTENANT GOVERNOR announced the result, and stated that there was no quorum voting. He apprehened, from the leaves of absence granted, that it will be impossible to have a quorum this afternoon.
Mr. GIFFORD moved, as there was no quorum present, that the Senate adjourn, in order to give the committees a chance to work.
A resolution was offerred and adopted that when the Senate adjourn it be till ten o'clock a.m. to-morrow.
And then--
The Senate adjourned till ten o'clock to-morrow morning.
* The Secretary's journal omits these names.
