Newspaper Page Text
GEORGIA EEGISEATI ItE.
IN SENATE.
Ti'Esoav, Doc. 15.
T!ie Semite went min cmnniiltoff of the
whole on the hill to facilitate the collection
of (hi ts in the superior iititl inferior courts
of this State. The lull, ttfler some discus
sion, wits negatived, yens 27, nays ”3
|(,,A lull ji nssed to lucorporntr the town of
IJaiiihridge, in Decatur county.
The lull to allow David (iolighlly to prac
tice law in the several courts of this State,
was iiegati/cd, after some discussion on the
propriety of allowing Illinoi s n practice law.
Yi ns 2I, Nays 3d.
The hill more effectually to define the duty
of the trustee of the poot school fund of the
county of Hauitiui, wus roinmittml, an I Mr.
Janes reported progress mid hn l havetnsit
ngnin to-morrow.
The I ill to alt' r and amend the 5th suc
tion of an e.ct for regulating taverns, and re
ducing the rates of license, p tssed Dec. 21th,
1791, was I lid on the I'liilc the h.dance of
the session.
The lull to make perm infill the road lead
ing front Deentur, DeKalh county, and Fuy-
etteville, Greenville, and Ilamiltnn, to Co-
Inhus, on the route lately marked out hy the
State’s coninnisvionerH, appointed for that
purpose,and to provide for the opening and
cutting out the same, w • ordered for com
mittee in June next,
1 he fill to authorise the infer.or courts of
this State to appoint persons to assign and
set off dower, and to prescribe the inode of
proceeding therein, passed on the 7th day of
Dc. ls»l.
and the report i
ported with amendment,
[■red to lie on tlie talile.
Witn.NKKUAY, Dec. 10.
t):i motion i f Mr, COHU, to reconsider
so much of the journal of yrsterd iv, as re
lates to the reje. lion of the lull to relieve
John A. Jones, John D Chapman, and John
15. Mahone, and the legal representatives of
Ihiier Hammond, deceased, from the pay
ment of a certain sum of money therein
mentioned, the r i as w i re 31, nays 3d.
On motion of Mr. 15 LA 111 of Habersham,
to reconsider so much of the j wrnal of yes
terday, as relates to the rejection of the hill
to facilitate the collection nf debts in the su
perior Had inferior courts of this State, it
was determined to the affirmative.
On this motion a debate ensued.
(Mr Clt \NVKOItL) rose mid observed,
that lie eimsidred this h II a very inisehii voiis
one in all its provisions i ami lie would ask
gcntlenic >, w here was the neces-ity of clmng-
mg the present forms of justice ? Every
one, said Mr. is familiar with the proce-s
of the courts, ami lie conceived it unwise
now, to change the modes pursued to make
nnv experiment, when the consequences that
might ensue could not he foreseen, lie be
lieved, that if tin- lull should pass, it would
subject t! people to great inco iviuiiencos in
the collection of their debts. Every man
now was obliged to file bis declaration in the
office of the Clerk of the Superior court,
stating within the bodv of it, the grounds of
his action, and serve a copy upon the d fenil-
nnt. Hu nee, the defend ml being apprised
of the grounds of action, is iici|imiiiled with
the pica proper tube entered, ami could he
prepared to meet the plaintiff nml defeat the
case, if the claims of the plaintiff were un
just ; and supposing the defendant, as is
frequently the case, should ho obliged to lie
absent, lie lias sufficient tuna to aeqmtim
hints: It' with all the circumstances of the
case, as judgment, according to the usual
co.tr.se of pros cJiig, cannot he entered up
until the expiration of the 21 term, and,
therefore, the defendant can have an oppor
tunity to make In-defence. If the claim is
unjust, lie has time sufficient ullowed Imn to
avail himself of all the grounds of defence
that may be suggested. 11 tit where the
judgment is entered up the first term,
u hethcr llio cl inns arc just or unjust, the ile
fendant Ins no opportunity, perhaps, of ma
king a defence, lie may he called from
home, and, therefore, may not he apprised
cither of the suit instituted, nr the grounds
unmi which he has been sued. An enormous
judgment mm be enteiej up, and no appeal
then, il’he unilui sloml the provisions of the lull,
could he made. The dr fendant was hound
to the decision, and should the claim he mi-
just, h would have no roiucdv according to
the provisions of that hill. lie would ask
the people of Georgia; he would ask any
gentleman of the si natc, if lie was prep trod
to pas sa 1 h a hill as the one under conside
ration, gov big the plaint la such an opportuni
ty to avail himself of every advantage in Ins
power aver tlm d.fendaut 1 We know, con
tinued Mr. that unjust claims are every
day preferred in our superior com Is, and he
t'nought it just & equitable, that the defendant
should l ave an opportunity to defend his
i .jins ; hut under the provisions of this bill,
opportunity of dufea re would he uffor lid,
a I no app it from the decision of the court,
( ould he allowed ; and if he correctly under
stood the features of the bill, j'ldment would
be entered up hy the court without the inter
vention of the jury. Mr. tk s.ubi lie was en
tirely opposed to this summary process, and
he presumed, as had been suggested, that
the people w ere not dissiitifted w ith the mode
of procedure now adopted in the courts.
The people were now familiar with the usual
proc. ss adopted ; ami if dissutisfact on gene
rally prevailed, he should have bi on uppi i-cd
of it. llut be prermned no gentleman, ex
cept tbe introducer of tin 1 bill, could lie dis-
satisfiud. If tbe people called for u different
course than that at present pursued, be bad
no objecti in that su' li a lull should p iss ; hut
be bad beard of no dissatisfaction ; and it
other states had enacted such a law, it .as
no reason why this state iluiuld pursue stub
a course. lie, Mr. 0., was opposed to any
i:• novali Ml upon the mod-of process now
adopted in tho courts, ami taking fro o defen
dants those advantages for det'enc • against
unjust claims, that tin y w ra at present pos
ses - cd of.
Mr. I’.L MR th m rose and iked, that' j
lie should vote fora reconsideration. Tltol
gentleman from Columbia, said M II., had I
taken one side of the question, nml he h it
himself hound to take the other. 11 • thought
it his duty to legislate in favor of any altera
lion in the judiciary, which should neuiifesdy ;
obviate any ofilie iuconv •i.ievrios at aroi nt
obvious, am! to a Ivt c ite any hill ah eh had
for ill object to i oiler the process of our
courts more stim.n try than at pr< sent, lie
conceived ih.it this bill, it' it sli add p-.s-,
could not bring with it those b.j irioas conse
quences that had been suggested, nor cold.I
it interteiv with the trial hvjtirv, as the gen
tleman from Columbia Imd remarked. If,
said Mr. H., no individual prefers to collect
his debts Without the employment nf counsel,
lie conceived that ho bad a perfect right to
do it.
Mr. WATSON observed, that he pretend
ed to no great skill in legal mailers, but lie
had introduced the hill under u conviction
ill it it was called for by die public interest; &
it was a m tiler of surprise to him, that some
hill of simil tr prnv isions ha i not teen brought
into notice years since. He was surprised
at the argument adduced hy the gentleman
from Columbia, for when he referred to Ins
usii d discrimination, lie was disposed to
eon. hide that he hail argued it iiuuaudtdly,
or that he had entirely misunderstood its
provisions, which latter opinion lie was more
disposed tn entertain. I ui«mueh, said Mr.
\V., as the lull had been discussed lit length,
when on its passagetho day previous, lie was
not disposed tn travel over the s inn: -round
with the same tram of nrgiiment. He be
lieved that the majority of the senate was ap
prised of the object of the hill, its peculiar
provisions and anticipated advantages, and,
therefore, he would not occupy the attention
of the senate by entering into an unnecessary
detail. Hut, said Mr. \\ ., In: felt it a duty
incumbent upon him to reply to the remarks
made hy the gentleman from Columbia. Mr.
W. said that he had observed thill judgment
would he entered up tho first term, and that
ill case the defendant was ubaent, and the
claims of the plantiff should he unjust, that
ho would Imve no opportunity afforded bim
for defence. llut such tv.is not the luct;
judgment could not ho eater ap the first term,
according to the. provisions of this bill. This
Inll di.es not change, said Mr. \V., the ordi
nary course of pruc-dure in that respect, nor
dins it interfere witji the trial hy jury:
judgment would ho still entered up hy due
course of law. Tho defendant would have
every opportunity to make a defence.—
This does not arms', said Mr. W., from the
defemhint the trial hv jury. Tho gland ob
ject of tho hill is to avoid expense, to render
more simple die ordinary mode of collecting
debis in tlie superior courts. Under tho pru-
s nl form, p n iics are compelled to pay coun
sel al lean five dollars. There was no At
torney, said Mr. \V., that would collect a note
of even #31 which is over u justice’s juris
diction, for h less fee than live dollars, in ad
dition to tho lax fee of 1 dollars. Now mi
ller the present law, this lax fee is paid by
the defendant, nml if this lull should pass,
this expense to llio ilcfeiulaut would lie a-
voided, and tho re paid tn the \ttornsy would
also lie molded, in ease that the suit involv
ed iio litigation. In such a case this saving
could he had. There is also u saving on the
part of tin- clerk’d fees. The leg il fee of
ijl M7 1-2, now allowed him, would he re
duced to one dollar.
Now, said Mr. \V., I have no intention to
bur any individual, if it should he Ins wish,
in the prosecution of any suit, In employ
eounsi I, but merely to permit him to prose
cute his suit without the necessity of employ
ing counsel, if lie should he so inclined.—
Ills object, in introducing tin. 1 bill, was to al
low a suit to progress in the ordinary mode,
without such a cost to the parties as was now
tlm ease. It was customary, continued Mr.
W., hi our superior courts, where an individ
ual wished In proseente his suit without the
employment of rounsel,to frown him down,
to prevent him, by thro -mg ridicule in Ins
attempts, and to make Inin e.n object of de-
lision ; and ullhough it was bis constitution
al privilege to prosecute his own ease tf he
pleased, yet Ibis practice that obtained was
all effectual t.nr to any attempt of the kind
from all individuals of ordinary sensibility.
He wits perfectly aware tlmt an ii dividual
is now permitted to appear nml plead his
own cause, and to defend himself in every
mode allowed by rounsij ; hilt he conceived
there was such ii disposition nil the part of
the court and bar to put down anv practice
of this kind, that a mini could not avail him
self of this constitutional privilege It has
also been urged, said Mr. \V., that if this lull
should pass, it would render the clerk n col
lecting officer. lie could not perceive how
it e.imlil have this effect. The money, when
eollrctcd, would remain m the hands of the
'lierill’, limit paid to the plaintiff’, in the usu
al way ; it is not deposited in the hands of
the clerk, lie had seen, concluded Mr. W
no reii-nn yet assigned, which had anv validi
ty in bis iiiiuil against the passage of the bill
He would, therefore, trouble the Senate with
no further remarks.
and in the practice of the courts of the
of Georgia. Now, if tins hill should pu»s
it would entiiely defeat that object, to estab
lish u unforni practice. It w .s tlm the Inst
time, said Mr. G., in the state of Geurgi t, ami
he believed that it was without preci cut,
oither in this country, <>r m Great llriain,
that an attempt of this kind had been made
to simplify tbe form of process adopted in
our courts. It was uu expert neiit tlmt would
throw confusion in our judicial proceedings,
nml from which consequences would flow
ill it could not h • foreseen. It is well known, j
said Mr. G., that the parties have a right,'
under the constitution, to appear in than own I „n,] r ,.|,| v to Mr. G in mm
cause, peisomillv, or hy attorney. The legis
lator 1 have never pretended to estnbii-b n
summons for a justice's court, much less
should they attempt to cstnhlnh n summons
for u higher court. He conceived that the
present law upon this point, wus not ilefec
I therefore, the Legislature si.mil I
not attempt to alter or abolish it. It was en
tirely out of the question, said Mr. (J., to
expect to simplify the proceedings of the
courts, hy the passage of such a hill as this
under consideration. \ml with regard to
the reduclioti of the co-t-, he conceived that
it would have the effect to increase them.—
The present law declares that the petitioner
shall plainly, fully, and distinctly set forth, in
his declaration, th" subject tiiitllcr of suit.— iron jellersmi unit niiservr;
I'liere is no particular form of action pin— make an innovation in
J * *
UL ' !ln '^ bopfd timt this principle would not Chi rokco nation of Indians,
- In- sanctio.ird bv the legislature.
-! Mr HE ALL rose
tor the
nnd to provide
turn of officers serving le
again ami said: I rise to gal process i.i said ti-rritm'i. and to regulate
iyone woi.l hy way of explanation ia reply me testimony of Iodines, mil to repeal the
ompc
uh-
ls. h section of the act til 1^28, upon thi
lute before, I stated thill the j et.
had exnmii ml, amounted to The report of the Hank committee, upon
>■- 1-2, but some may not amount t.; tfiat j the application of Col Seaborn Jones, to
, and some may exceed it. Vail m ad have los Innnl cancel led, as a director of the
t I the gentleman from Jefferson. When 1
adilr s-i d tin
i-e hills w hich 1 had rxnnui ed, amounted to
88 «2 i--;
sum
dilion to it, a tax lee of j«t 1 would make I Central Haul,, was
sl2 (12 1-2, and if the ilefenduiit should til' railed up.
employ eminsel with a fee of $5, it would
make the cost £17 (13 1 -0.
Mr. \V\ I’St »N, on the p
I, that h
was not disposed to ih-tuui tin Semite by any
further discussion of the merits of th- lull,
as lie had heretofore expressed liii views at
length upon the subject ; that from his ill-
fortune, iii the prosecution of legal subjects,
that hnrl originated with himself,in the course
of tin present session, he was roller ihseoti-
raged from seriously pressing farther urgu-
iiirni. Ho would merely make a few re
marks, in reply tn the gentli 111 ill from Jefl’cr-
rdured to Its on the table
The report of the committee on Agne.nl-
Itore and lateraal Improvement, on the pro
of the hill, | prtety ol improving the Flint rtvi r, was laid
on the talile till called up; and a resolution
also, in rel Oion to comp asntion to the com
missioners Ibr in .rking out a large market
road imm Decatur, i.i DeKalh county, to
C( lumlius.
Several lulls were read the 2d time.
HOF
of
(retitliMiHMi oppose] to tlif* pass
lull, Ii i I s<)iii:(liu<; ili'claruti
on? Mtti tnptitiK to point out tin* (JrlY'Cts in it
pr«»\ isin s, or show tin* rvil ronsiqucMK os an
ticiptitfil from its ntisfjaot*. Tin* gcntloma... , .
from Jefferson had nhserved, that it would | ,h " ‘ nefokee Nation of liult
OF HEl'l!F.SENT V FIVES.
Saturd \ y, Due. 1*2.
Mr. M V UN Ell i.ftVntl the following
pr te.-t, wnu'li was re.nl ami ordered to he
entered upon le j ur ills, ViZ :
IVhrrras, l>y the Dili section of an net
| passed on Hu- iiOth d iy of i )<•<*. I ^28, to ex
tend th« laws of thus Stall* over tlie territory
" ithni the charti* re I liaots of th Htitne. in
itidtvidii.il pursues hi* o\vu courls, which had hi
scribed.
form, provided that h * fully nad divtiuctly
sets forth his cause of action. Vud -hail the;
I.Rtfi&Inture now preserthe w lint that form'
shall he ? I 1 bqs hitheito licen juft, sm! Mr.
ft., to every man’s own judgment# There ts
now no di/lhmlty in tlie e.olleutioo of money,
arid he should conceive d highly impropur \\
this time to make any innovation upon the
present form of proc to dint;. When any in
dividual wish* st*» institute a unt, lie ca i ap
ply to the printer’s office, nml ulit iai a Idank
(iuu)uralion, which ran he easily filled up So
the clerk of the court, or any individual
who can read and write. The present form
v,as as simple ns a summons for a justice’*
court, and the Legislature has never pretend
ed to prescribe a tdtmof summons for u jus
tice*!) court.
This form, coutinu d Mr. (L, is somethin;*
similar to the original writ, or process used
io Great Uritniu. There, it was nee» *> iry
to file a declaration after the original writ in i
heen served, which formality could not he
dispensed with, because it was required hy
law, Unit the party plaintiff should plainly,
fully, and distinctly set forth Ins cause of ao
lion, and tin* defendant, in like manner, wus
required to set forth pi linly, fully and dis
tinctly, his ground* of defence# l f had heen
affirmed, that the costs on an ordinary note
would amount to lt> nr I? dollar* ; hut every
individual acquainted with this subject, know*
that this was not the fact. In ord. ary cn»
es, the co*t amounts to no more than 10 or
1*2 dollars. A ml frequently the cos s ar** U
if confession of judgment is made. We
have been likewise told, that live dollar* were
to he added to the lull nf eoxts lor employ
i ii if an \ttoruey. This wa* also incorrect.
This cost was paid by the defendant ; tbe
delinquent party was oblig'd to pay the co-t,
there was no necessity of employ im; counsel,
as Imd been suggested, if a man had rapaci
ty to attend to his own case. This bill, if it
should pass, instead id* simply fy ii ;; the pro
cuss ot our courts, would introduce confusion
in our judicial proceedings.
Our pleadings are well known, n.imdv ;
tlie form of the declaration, and a**swei, dte.
NV’Imt has the petitioner to do, inquired Mr.
G., but to set forth plainly, fully, and d o-
tinetlv, tin* cause of action ; and so with re
paid to the defendant; nothin;; mere nor
less than this ; and the process, he conceiv
ed, was as simple as it could he rendered,
mid intelligible to any man of plain undey-
stamliug. It was very easy for any individu
al to fill out a plain summons, and lie can
usea*ily (ill up a blank declaration. These
blank declarations can he procured in any
Printing oOlct in the State and in many other
places for \’2 I-£ cents, or perhaps » cents,
llut in this case you are about to impose a
duty upon the clerk tttver In .ore impu*rd
and the l> »nd would he enlin Iy disprnpm hon-
ate. Vnu here make it the duty, said Mr.
<■., for the clerk to take note*, and give re-
ceiptsof coarse; then you make Inin a col
lecting officer; you make h:m the Attorney
General for collecting, nml give him an addi
tional compensation. You give h in a dolhir
in addition to what lie now receives hv law.
practice of th
1111111"
novat
prove
rienee
*tahl:.*ln d from time I
Now, said Mr. W., if an i i-j
a is made, which is profitable, why
ke it ? We live in an age of nn-j
ent, and without profiting from expe-1
<>i mluuini; that experience to prac
tice, wh**re is 1!i*• benefit derived from ourex-j
p rieiie.e ? 'I’he gentleman fro in Je(Fer*on ;
lia* urged, that tin* passage of this lull would
increase the costs, instead of diminishing
them. Hut he concaved his view* were hi i
tirely incorrect. He would assert #nd with j
out the fear of eomradictiun, that i-i-tcad ofj
tin* crisis being inure i-. I. tln v wonhl he ill
niinjsln d. N-ov, would the clerks he at li
berty to charge then* present fee, for drifting
the I ’M jthv silly writ, according to tin* pn
sent practice, when, bv the provisions of
Inll, it is nbrolg* d and the original form dis
pc used with ? If the ordinary writ was a-
bridged. he pro iosed to pay "her** now
^1 S7 I -2 was allowed. What is the form
now, said Mr \Y., to whie.h we adtii’re with
so much ex ietni’. s 1 t«3 it not a form (halv
ed from the Iviglish practice? Is it not jt
form that is scarcely intelligible to n man of!
common practical sense ? I he usual w ri r s ■
h lltl Ml. \V., are uotliing hat unreasnnaide!
repetitions. Ii goes on to petition,
Mr. \\ . uieiitioned some »>t the principal fea
tures of tin* .led iratnni in u-e in the courts.]
Hi* p.o'n t ia'il that such a tissue of words'
without meaning, as entirely U!Mn*ee*sa.rv and I
rd e'lloiis. It !m I h en as* rted, co itiuued !
Mr. \V., that we could obt iio a blank decla
ration from tlie printing office, which c
be easih tilled up. Hut there mu but
m u who could till a writ m tin* ord
wav. Now, sai< I Mr. W., my olijcot is not ti
clui'isri' llic (.resent prartioe, lint to simplH'*
it. Thnre is tin provisioa io the bill tliat
prouilutg a party iVoin emplnving a dozen
attorneys, if lie is so disposed ; lint where
there was no prospect of lititrupon, as «n a
plain note of Imnd, lie would leave it to the
option of the individual, to employ counsel
or not. \\ here no attorney iva.i employed,
the foes of counsel would he avoided, which
would amount to at least £5, on a rioce of
anv size. Now, as he Imd before stated, his
object was to simplify the usul process, and
not to change it with a view to enable the par
ty to have his case passed through the court
without being compelled, hy the practice of
the court and liar, to employ counsel.
On motion of Mr. I. \ M \K, tn reconsider
so much of the journal of yesterday, ns r-
I ites to the rejection of the bill to admit David
Gohghtly to plead and practice law in the
HU V
a ns, it is provided that iio Indians nr descend
ant of m l din i residing w thin tin- Creek
and Cherokee nutio of Indians, shall in*
deemed a compttuiit witness nr a party to
a v suit io my court created by tin- constitu
tion or laws of this Sou , to which a white
111*111 may be a parly ; and wlurcus, by an
act which pa*s« l the House of Ib pr* senta-
tives on the lltbdayof Deer oh r, 18^9, the
aforesaid suction is repealed hy a section in
the latter bill which reads in tin* following
words/viz : “ That no Indian or descendant
of hi Indian, *h ill he a competent witness
in any court of this Stutu, until the judge or
j presiding justice shall he fully siti-ii* I that
said witness lime ji due nml proper sense of.
the obligation of an o «th, and that tbe 9;h ! t'»« object, under the instruction* of the late
presume that they would find against n white
man on lliu testimony nf at: Indian, unless
timt testimony was clearly entitled to credit,
orsuffie. colly corroborated hv other testimony.
It would seem, therefore, that if the house had
refused to p iss the section last recited, con
cerning Indian testimony, they would hare
manifested n want of confidence in the capa
city anil integrity of our courts and juries,
which would not have been justified hy the
safe and faithful exercise of the powers in
question from the settlement of the country,
t II those poweis were withdrawn in 1820.
Indeed, it would scent that the efficacy of
so.i.e of the most important provisions con
tained in the hill lately passed by the house,
depended, to a considerable extent, on the
adoption of the section protested against.
On the whole it would appear that tills
section, is calculated to benefit both the,red
man mid the white; and that the protest
against i , would have a tendency, without
tliL explanation, to,place the conduct nf tho^i
majority m an improper point of view, and to i”
mislead and inflame the public mind.
Mr. DOUGHERTY. from the Committee
on t/ir State of t.'n Republic, submittal the
fillowiiii;
RGPOR I’:
The committee n the state of the repub
lic, to whom was referred that part of the
Governor's communication, with the accom
panying documents, relating to the dividing
line between the Cherokee and Creek Indians,
REPORT:
l'lie lirst fact to he ascertained by this eti-
qu ry, 's the true dividing line between the
Cherokee anil Creek nations of ioilmns—hut
two line are contended for, one hy the ('he
roin es, commencing at the Huzzaril Roost,
on the Chattahoochee, thence to the m«uth
of Wills creek, on the Coosa. Tho other,
claimed hy Georgia, being the one run hy
Col. Wales, her commissioner, beginning on
tin s nne river, at Snwanna old towns.
Tlie evidence collected hy Col. Wales, i.n
the act passed o , the 2fith Dec.
''j'l I I82S upon tins subject, he and is hereby ri -
) pealed.”
We, the undersigned,.viewing so much of
tin* iforosnid net, which passed the House
| of Representatives on the Ilih (lav of D
! 1829, as g
j act passed no the 20th ol December, 1828,
land which provides for till' admission of the
j fi'stiniouv of lodian- in the s-vend courts oi
tins ,i tate against whit men, to hi a uieasiiiv
fraught with dangerous consequences and
r ilcii! :1m' t" corrupt th" stream of justice at
its fountain head, to prostrate the sacred
rights of personal liherti, personal security,
i and private property, at the feet ot savage
ignorance and harhiC'itv
Therefore, is the representatives of an en
lightened people, we do most solemnly enter
‘nul l m,r protest against that p i't "I the aloresaid
. 1 j net, which authori-es the adn.tssum ol Indian
testimony against white men, in .any manner
( whatever, in the several courts of law in lh.»
" State. Signed,
Hiram ll'anicr.
I David I/. Hums,
\ y.ithan Hindi/, inn,
John J. Taylor,
.An />h I Vi/rgins,
1 William Howard,
Hinton Hepburn,
It. M. Hr hols,
Thomas I). Johnson,
Richard Hnili/,
i Thomas Hilbert,
William \sh,
Samuel Howard,
Sfephtn Mays,
I.rvi T. Wellborn,
John W. C nirart,
liaijamin Howell,
Isaac Smi/th,
Vet 'nrmiclc Xeal,
l.arlin (Jtiffin,
IFi/i /'. Cash/,
George R. McElvy.
■rnl courts of law and
is (leteriuined in the m
()n niotioii of Mr. EZZ\I!D, to reenn-
ier so much of the Journal a.' rel ites to the
rejection of ihe lull to in die permanent the
county,
Mr. HE ILL I lien addressed the Set
as fullinvs :
Mr. President,—It lias really appeared
Inordinary to me, to seen disposition ninni-
I’ested in the Senate, to oppose every motion
or lull which contemplates tin iillev latiun ol
tlie hurtheiis or distresses under wliicli tlie
people labor. \ml more especially when
the object is to facilitate the collection ot
debts, hy curtailing the co.-t on suits. I
know a law, society hat similar to tin- one con
templated I iy tin- hill on your table, is in ex
istence iii aimtln r State. The gentleman
from Columbia observes, that tlie defendant
may h ivo an advantage taken of him ; end
sup posits n case, tiiat lie might tie goae to
the Ninth when a suit might he commenced
against him, and be thereby debarred from
making a defence. I had always thought,
Mr. I'resi,lent, that the service of the w rit
should have first been perfected before tlie
defeudai't could be made to answer or plead. ^,V,K|'|!,' in favor of the pass me o
" .'"" ,l "’ 1 ,s ' I heenuso he b.di. veil tliat it would c
Filing ol tho writ, it could not no s»*rv
him. IL.* say.* it would Id* throwing the
dings of tho courts into n s\alt* »»f cliaos.)
Vs I I
sinus to
in another statu, and I h ive not lirarJ
of thi* chaotic state being produced hy it
As to the expense, there is no doubt but thi
cost would ho considerably curtailed under
the law proposed by thi* hill Tho fee bills
which I have examined, amount* d to s8(i-
\ *•!, with n tax ten of 8 l, mnktug sl'-I (’> * l-‘-i,
an*l if tho defendant -hould c*iaj*|ny e*umsi l,
p**rhtips il fee of $•") ittor
llu defendant £17 l -*L
rio* advantage* r* .-idling t«» ti.c* pidd’c from
the |»:i**.igc of this hill must he ohviiuis, a*: it
ro el 'Riling troin !
via l' , ayette\ die, (i
to Coinmhus, on l!»
hv tho State’s comm
tli u purpose, nml to provide for
and clearing out tlie
in tin* negative.
DeKalh
Th
viand
pointing
of XV
com nis>
eominissiouers sit di not
pay fi mu tlie Si ate lor l h
he
urn
ided said ! w*
titled to nnv ■ th
rvic
s then agreed to,
< >u motion of Mr. ( VWFtlUD, it w
/ii
The party pl imtiif too, now can enter up
judgment, and sue out **xeuution. \nd who H'dlowav creek, and amnideil the s
heloie ever heard, said Mr. G., t♦ *mt the par- j the following parigraph; Pmvn
ty pi.unt.(f is not entailed to the control of
hi:) cxecu.ion ? We are now about t » pn -
a law , to give the plaiutiH’ a contro «.f his
execution; he ha*l never heard tli.it privilege
denied. \llihe control the \ttoruey has, ;s
merely alien for Inspfee. 'Flu Astorney has
no right to control the judgment, or execu
tion, in opposition to the will of his cl.cut.
This never has heen done. Ml the control
lie has over the ext cut ion, is to the amount oi
his fee. Hut he conceived there was no ne
cessity of employing conns I, if the phi ntiifj tnliv
Ii is tin* ability to manage hi* ow n case ; and , s -ain
if he has not, we can hy no net of Legisla
tion make a man his own lawyer, when he
Ims neither the capacity hv nature or »•dura
tion, to attend to 11is own ease. If, sni.i Mr.
G., you were about to legislate with a \ i* w
to increase the perquisites o! tin.* attorney, In*
tin* hii!,
Monday, December I L
Mr. TURNER hud on the table a declara
tion, and the same having heen rend, he mo
veil to have it entered upon the journals of
house ; upon which motion the yeas were 9*2,
nays *2*2. So tin* motion was carried, and tlie
deelaratioi is in the following wolds ;
It is matter of regict that any portion of the
phty m this Slate, members of this house, should have brought
themselves to believe that any act of the
house is * 4 caleul itcd to corrupt the stream of
justice ul its fountain hrad,& to prostrate the
sacred rights of personal liberty, personal se
curity, and private popert»,Mt the feet of ?a-
envilie, and I! anullnn, j vage ignorance mid Imrburitv.” Such, liow-
route latch marked out I ever, is the (hcl. ration contained in the pro-
, appointed for test of the minority Hg mist si section contain
peiimg ed in tho h.ll concerning the Gherok* e In-
aim*, was determined dims. lii9tiof* requires tlmt this matter should
he placed in a proper point of view.
•lutioii of Mr. I Hv the old law, ns I ud down by lll ic.k-
9tli in.*t. ap-'stone, a!! witnesses, of whatever religion or
vamim* i’liiu . con try, that hud tin* use of their reason, were
hy | to he received and ex tunned, except such as
wfamous, or such as were interested in
( vent of th • cause. All others wen* cofft-
w Inch j petmt witnesses ; though tin* ury from other
i circumstances, would judge of their credibi-
lit}/. On tin* footing, the matter had stood,
• tiiat
Indy Thai the bar of the lobby hejtill the yem |8*20. In that year, no nr.t was
d lor the purpose ot’ t»xi« tiding the
clmmhcr t«> the tire places, situated
Northern pait of
in the Northern pait of the chandler, and English .nuguag
that the gateway leading into tin* Semite
chnudier, he removed and placed between
•him
of
Ueprescn-
*iv tor the
sitling wit hi
of Indians,
should he d emeu a
[iipeteut
3v court
hecnme
fusion in our judicial proceedings, nml the
more confusion the better for lawva rs ; but
! us ii citizen of the State, In* should prote.-t
*. s as i n t hc i 1
1 that the Governor
'Mine out of the contingent fund
The .Senate took up tin* petition of Gapt.
Minn (« S a Huh! hate Solicitor General of witues-, or a party to anv suit,
he < * ikmulgue circuit, which was ordered created hy thi* con*titi|t|oii oi
!•» he on tlie l ihlu the bil.i.ii' of the scfsmu. state, to which a white man mav he .a party
The lull to amend an net to authorise the (treat inconvenience and injustice have re-1
mpei-or ceurls of tins State to appoint per- sidled, and would have resulted, from these
;, *ns t<> .assign and set off dower, and to pre- changes. The white man might have piun- j
•uribe the lit a-! e «> t ] •.na-.Iiag theiein, pas- dered, nml, in some instances, lms plundered, i
Executive of this state, is certa.nly very strong
in favor of the position, that the line run by
him is the ancient and legal line, between
those two tribes of Indians. It, beyond till
doubts, c: tahlishes this fact, that the Greeks,
j up to the year 18*21, claimed the land to the
tn rcpi'iil tli.' bill m'l't'inn'nf the i ‘ ,ula '""rkcl by hitn I!n\v tlmt i lnim was
j finally settled, and haw t ,d line from Buz
zard Roust, was agreed upon hy the two
tribes, is a matter existing only in t' e com
mon understanding of tlm community ; un
less, indeed, a paper’ lately published in the
Cherokee l’hirmx, purporting to he a treaty
or convention la Pvt en the Hvo tribes, can bu
considered as furnishing sufficient evidence
of tiie fact. This paper, published as is be
lieved, hy the authority of the Cherokee#
themselves, can, at all events, with propriety,
In received as evidence of this fact, that up
to the date of that convention, they Imd not
an undisturbed title or occupancy of the land
ly ing hi t ween the two lines. Up to this con
vention, the same portion of territory was
claimed hy the Creeks, ami as much ormolu
in their oeciipnny, and their title ns good as
that of the Cherokecs. If tlmt he granted, it
follows, as n consequence cnncltsive, that, by
fileh convention, the Cherokecs obtained no
belter title than they before | assessed. The
Creeks, if possessed of any title, to the lino
run hv Col. Wales, were invested with no
power In sell or dispose of the same, to tho
Cherokecs, or any otht r person.
The same right of selling to the Clirokocs
would Imvc enabled the Creeks to sell to any
other power or nation ; nndn sale to Alabama,
Tenncssie, or even to Spain, would have
been ns binding on Georgia, as is this pre
tended sale to the Cherokecs.
The right of the Indians, living within the
limits of any of the old thirteen stati . of the
Union, being merely permissive, it results #s
a necessary consequence, that no sale of that
right can convey any beneficial titles to tho
purchaser, unless sanctioned hy the State in
which they live, according to the constitution
al authorities of the country
Georgia having given no consent to this
convention, and a portion of the land lying
within In r limits conveyed hy il, she can in
no wise he affected hy a. y of its provisions.- -
This convention having no effect upon the
rights of Georgia, the question occurs, whero
was the line between the two tribes anterior
to its formation 1 It is not known to your
committee that it is usual for the different
tribes of Indians living within tho limits of
the States, to have thpirbnundnry lines plain-
L an I distinctly marked, but on the contrary,
they have for the most part existed in ima
ginary lines, from ascertained anil notorious
points, resting in the general understanding
an d memories of the c. tnnmnity.
Th •it this has been the case with regard to
the line between the tribes in question is most
clearly proven hv the testimony nf many
linn, or de respectable witnesses, intimately acquainted
with the two nations for a great number of
years, lathe absence of documentary evi
dence, there cun he no valid objection *o
avail ourselves nf the testimony of creditable
that | witnesses, in the ascertainment of any pro-
re- ; posed fact. So far then ns that kind of testi-
pnssrd, prnvidi '£
seendant of ao India a, not undei'standingth
lionhl he di emed n com
petent witness in nay court of justice created
hv the e Mistitutiou nr laws nf this state.” Bv
the iw t of the last session, it is provided
no Indian, or deseendunl of an
the Creek or Cherokee nations minty has heen submitted to your committee,
on the
■Cte.l.
.|ns a citizen ot the Mate, lie shnnul prote.-t
(fore stand, a law similar m its pmvt- i|l>t ,, K . it . c „„ coivi .,i u
to tins Ims existed, nml been piufOsc. | wmlK| b( . vv . tll „ ul |ir ,. t T|„. >.
(1 :v Oi’ D,
iiliie.lli/ii tn
1824, w.i* tlie uiifortunii
eon! I not lu
ludinu with impunity : I!
t! on Iinliun teMimonv.
the parties litigant perfectly at liberty
to i mphiy counsel or leave t! e ca-e to he dv-
eided, without a t i\ fee of four dolhirs, mid
five dollar.', fur an attorney, thereby reducing
the cost r.me dolhirs. I have no further re
in:'.: !>s to make at present oil this stibjci t.
Mr. G \ M ill ,E, o:i the passage of the hill,
rose and oh-ined, that n' tins Inll sliould
pas'., it would introduce more confusion ii.
our legal proceedings than ever Ims vet heen
Mities'si d. It has been nor object, hereto
for< , to (lri'ditec Ul ifnrmiti in the :Ie tsinns
pr,
lure has never yet attempted to pre.-cri'i.: e.
form of suiiiiuous, even lor the Iona s: courts,
nml he imped the course heretofore • ttrsue
would lie adhered to. lie he I . veil the peo
ple were entirely satisfied un-.l emueuti d with
the present form of proeers ; and he was hot
disposed to advocate any hill, which had for
, . its object, m interference with the fnr.it..
111 !1 1 ”’ now pursued, lie had heard of no com
' j p!mut on the part of the people; and I i be
lieved the costs allowed in tins State were
I lower than ia anv other State in tlie Union.
of deli'
>f lists
facilitate lit
Mir and in
they feel little hesitancy iii pronouncing an
npi ii- n in favorof the line run hy Col. Wales,
of this Taking this ilien to he the true line, there cai^-
be hut little doubt, that a legal exposition ol
the different tri nlies made hy the United
St ites with the Creeks, will give all the land
below the same to Georgia. This fact agreed
oil, the question is presented to the Legisla
ture, does policy require Georgia to take im-
meiJinle possesion ot the disputed territory ?
col- |
erinr
But not only might injury result to ■ In- I'.'erest of the 8fite in the laud occu-
s 33.
V hill
(lilt V
I 111 c
111
m and
hill lo
and ret
n on jiaii.eiilarly to
Trtisti i s of the [inor
i elive comities of this 8t ite
I'honse ti-e Govi'inor to de-
liun, but also to the white man. If Indian
is 32, trsuninnv should not he rein ivo I in any
in which a white man may he a party, then
ould the white man lie iiii'iblo to proceed
Indian fur anv ilelit, or any in-
lie happened to have the tosti-
itiony of a w hite man. It is easy tn perceive
■i j against the
jury, unlei
ir.'in the i .iiuimssioners ot tlmt in verv many
1 lif while in,,ii might
an gable
lu
lu Smith Carolina tins costs are more than
treble what they tire here, mu! lie coul I cot
conceive how they could he dei med oppres
sive. Tlm costs nre the same on a note of 31
dollars, tis on a Hole cf 5 tho isnild. We
can |iass no law, concluded Mr. <«., hut what
would operate hard upon some one ; hut In
conceived that if the law operates hor.l in
one ease, it w as no objection to the p ssage
of a general law. He was opposed to am
o.novation upon the practice which ha. 1 i •
hi use in our courts, from time immemorial,
.virs i:i this State, tin he unable to hri >g any other than Indian te
.tin r property tn tin iri tinionv.
The hetti rw iv, therefore, was to d
the house has done : to enact 11 that no (a
di.tii, or dcs ‘cndaut of an Indiso, sliull he i
epor;
liniids, lielouging lo the Stale, w.
•s it!i nmi'iiduieut, w hich report was laul on
the tuhle for the presei t.
'i'lie 8, 11 ate took up mid agreed to tli rc-
p irt of the ha !, t*otui:i:.t• on the enuditiim
of the Central Bank, made on the I It It inst.
and it wets ordered that the documeuls ;ic
eiaupa.iving said report he pniited im.'iiedi-
atelv after the tviiort.
\ hill was ji.i.- -ed to add "to territory Iv ing
wttliiu tlie chartered limits of Georgia, now
a tlie nei up 'nev of the Cle rok-e Indi ius,
to the enmities of Carroll, DeKalh, Gwin
nett, Hall, and llahcrs!i..ui, n il to exti nil
il c laws of this St ite over the same, and to
amend all laws and oriln ances made hv the
coni pi ten'
pied hy the Indians, extended alone to this
(^territory, the question would he divested of
much of its difficulty of answer. This how
ever, is not the fact.
Her interest in this small portion of terri
tory is certainly iiicmisideruhlc, w lien com
pared with her interest in the other Iliads oc
cupied by the Cherokee nation. The grea
ter should never he sacrificed to the smaller
interest; and n policy inducing such a result
wluit would be equally fallacious when adopted hy I
State as hy an individual. '
If a hasty and abrupt possession by its of
in any cmirt of this state,, this disputed territory, would probabli/vminn-
l'i,
sat
I’ldtre or .1
'..-lied, that
ire presiding, shall he I
ud witness has n due
ger the speedy acquisition of the whole ter
ritory hi tie occupancy of the Clicrokces,
and proper sense of the nbligatim of mi oath, prudence and interest both dictate u forbear*
,Vi'.” Under this ei adment, our courts atice at presei t—Judging from the known
would seldom allow an inipropi r witness tn diameter of the Indian, and the effects
tifv ; .and tf they should occasionally do which certain causes arc likely tn produce on
the jury would stdl liavf the (lower tn their actions, it is certainly not without the
range nf probability, that n rigid exactment
of our rights on this occasion, might produce
> more unbending obstinacy on the part of
tlie Clicrokces, not to remove beyond the
Mississippi. Your committee is supported
weigh tin- ti stunonv, and In disregard it alto
gether, if unworthy of credit.
Y vv "o one r.n doubt the disposition nf
tlv white jm v, tn take care of the interests of
the white man, and no one can reasomihlv