William Russell Smith.

The history and debates of the Convention of the people of Alabama, begun and held in the city of Montgomery, on the seventh day of January, 1861; in which is preserved the speeches of the secret sessions and many valuable state papers online

. (page 30 of 47)
Online LibraryWilliam Russell SmithThe history and debates of the Convention of the people of Alabama, begun and held in the city of Montgomery, on the seventh day of January, 1861; in which is preserved the speeches of the secret sessions and many valuable state papers → online text (page 30 of 47)
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do as individuals; what, as individuals, they WOUld OOt dare do,

because in so doing they would be amenable to the Penal laws of
the country. Gentlemen may shelter themselves behind an act of
the Legislature in the exercise of the power under discussion, but
tiny must recollect that, in morals, it is not the less robbery, not-
withstanding tin \ may shelter themselves behind a legislative en*
aent. It is proposed by gentlemen to leave in the Legislature
a power, and 10 justify the exercise of that power in a mode that
would not receive the sanction of anj despot or tyrant on the face
■ •! the earth. I know of do potentate or power on the face of the
earth, however despotic or tyranical, that has ever presumed to
• monej from the pocket of A. to put it Into the pocket of BL
Dynasties and despots there are, and have 1 n. who have levied

- upon their citizens for purposes of public eiiterprizes, such

as Railroads and other public works, but then the improvements

\ Inch the taxes were expended remained the property of the

Government, and were in turn employed tor the benefit of the

taa-payer, and the franchise put at low rates with a view to his

convenience and benefit. But the power contended for by gentle-
men is simply to enrich A. at the expense of B., and this by leg-
islative enactment.


Gentlemen talk largely of the necessity of retaining this power
for the purpose, as they say. of building lip Railroads and other
internal improveinents. Yes, sir, gentlemen are so thoroughly
run mad upon the subject of Railroads, and Railroad companies,
that they become utterly oblivious of the morality of the means
they employ to bring them into existence. \\ ell, sir. Railroads
are now the order of the day. The public mind seems to have
become enthused upon that subject to the exclusion of all other
subjects in which the public have an equal interest. The resources
of the country, say they, must be developed, The bowels of the

earth must not only be speedily dug out, but must be carried off.
That is all very well, Mr. President, and I have not one word to
say against it. In those matters, however. I would always ael as
I would in other matters ot' private enterprize. It' I wanted a
Road and others wanted it also. I would unite my capital or credit
with theirs and build it. I>ut I certainly would not steal the
means ot carrying it out. Now. sir, suppose we have the taxing
power oi the Legislature in the same condition as we found it on
assembling here; a power, in fact, unlimited, whether for the bene-
tit of the public or for the benefit of individuals, or private cor-
porations^ who can tell how long the public sentiment will run in
favor ot' Railroads '. Suppose it should take a religious turn and
it should be deemed important that churches should be built in
every township in the State, would not the enthusiasts upon this
subject have the same right to call upon the Legislature to tax the

people to build churches and to huild up religious societies, as
those have who worship the god of this world? Who will rise
Up here and say that the wealth of a State is. in importance, su-
perior to its morals ? Have not moral and religious corporations
the same right to have taxes levied for their benefit as Railroad

Corporations] What guaranty have we that the exercise of this

power will be confined to Railroad corporations 1 Does not the
principle contended for by gentlemen apply as well to churches,
holds, turnpike roads, bridges, ferries, and even theatres '. The
public have an interest in all these, and each of them have the
same right to call upon the Legislature to levy taxes in their he-
halt' as Railroads. All the difference between them this day is.
that the popular sentiment to-day has a decided tendency to Rail-
roads over and above ail other things ; but this is no evidence
that ten years hence it will lu- v,,. The moment that popular en-
thusiasm takes a different channel and runs in a different direc-
tion, then that subject becomes the one of paramount Importance,
and tin' Legislature is invoked to build it up. ami 10 matter at
whose expense.

■_".'*» HISTORY \M> i>KHAll> 01

Now, if private property is worth anything; if it is coi
liable to be industrious and economical, and therebj t.i beconv
thrifty and wealthy, then it becomes important t<> prop-

erty as well from the inroads which the- Legislature ma} maki
1 1 1 »• • 1 1 it as against those which individuals may make. Il should,
in fact, be sacred. The citixep owes i«> the commonwealth in
which he lives lull allegiance, and this includes his aid in Bupport
and in defence "t" thai commonwealth. Taxes, th< refore, ina\
well be levied upon him for this support and this defence. Tbie
power is not denied, nor is il Bought to interfere with it in an\
manner whatever. Bui 1 deny most emphatically that the L<
lature ought i" have the power either to take my money and giv<

my neighbor, or to take il and give it to a private •
lion, that seeks to run a Railroad b) my dwelling, or to make any
other improvement that, in its nature, is a private enterprize.

Mit. .1 KMbus said :

If this proposition is adopted, i1 will put it oui of the power nf
;iii cities which have already created Bonds, and have their
now outstanding, to comply with their obligations.

Mi;. ( '"< hi; \n said :

The difficult^ suggested by the gentleman from Tuscaloosa,
[Mr. Jemison, | can be obviated by the proviso which 1 will offer,
if the gentleman will yield me the floor for that purpose. I wouh
not be willing that the Committee's proposition should be adopted
without such an explanatory ameudment. It was not the d<
of the Committee t<» interfere with existing obligations. [Mr,
Cochran read bis amendment, providing that the proposed ehangi
should not, in anj way, applj to existing liabilities.]

\l ft, .1 imi-un said :

If the Section, as amended bj the Committee, should be adopted,
i his |.rn\ iso would be necessary, and would relieve the proposition
from the objections I suggested. The city of Tuscaloosa has <
iracted a debt, by authority of an act of the Legislature, for the
purpose of aiding En the construction of a Railroad, and, although
I did not vote for the tax, I am in favor <>t' meeting the Bonds it
I faith. But, even with the proviso of the gentleman from
Barbour, | M r. I Sochran, | I am still opposed to this amendment i f

the Constitution. 1 would prefer to leave OUT Citizens free to b<

taxed if they chouse; and 1 am not willing to admit that a man

must never be taxed without his consent. Men are often unwill-


ing to be taxed ; and to say you shall not tax a man without his
consent, is equivalent to saying you will not tax him at all. The
money you got from a man b\ his consent, would be more pro-
perly called a contribution than a tax.

Mb. Dargan saitl :

I will explain my motive for voting For this amendment. What
is the meaning of the word "Tax ?" It is money levied for public
use, by the Slate, and for which the tax-payer expects no return.
except the pr< >t eel i< m of the State. It is a burden which the tax-
payer owes to the State for his protection. This meaning is per-
verted when the power is used for any other purpose : more par-
ticularly is it perverted when the money is caused to be paid for
the purpose of procuring certificates of stock. When raised for
such purposes, there is an implied contract — it is a bargain be-
tween the parties — therefore it is a perversion of the power to levy
a tax. Thus you can force money from a tax-payer, for the benefit
of private individuals, against his will. It is a violation of the
Constitution thus to raise money by taxes. The Constitution says :
"the property of no man shall be taken for public use without just
compensation." Money is property. 1 am willing to the
public interest by my purse, but not by the perversion of a great

This amendment will not arrest the progress of public improve-
ment, as insisted on by the gentleman from Montgomery, [Mr.
Watts. | He proposes to force an unwilling tax-payer — you will
coerce me to become a stock-holder, though lam unwilling to sub-
scribe for the stock, upon the ground that I am a tax-payer. Vet
1 answer you, this is not a legitimate tax. It is not tax, but an in-
vasion of niy right of property — it ia& violent atuture. The old
policy is fraught with danger and injustice. The large property-
holder i- at the mercy of the small property -holder ; and in such
communities as Montgomery and Mobile, those, who have little
or no property, are largelj in the majority, and can force the large
property -holders to do as they please, if you give them a chance to

do it at the ballot box.

The Railroad system of Alabama will prosper as rapidly under
this proposed amendment, as under the old system — and even
with moie harmony, and on a just principle.

If you assume the right to tax your citizens to build Railroads,
why may you not do it upon the same principle, for the pur]
of building a line of Steamers '. You may as well charter a Stock
Company to build and run a line of Steamboats from Montgome-
ry to V w ( Cleans, and raise the money by taxing the property'


holders of Montgomery, upon the specious grounds that the steam-
ers will improve the oommerce ol the town, and thereby enhance
the value of the property of the tax-payer,

Sir. tliis is an Important question : we are framing an Organic
Law for a new Stat* — let it be so framed in language and meaning
that it cannot lie misinterpreted — so that under the Law, the pro-
perty of all iiicn niav be equally secure.

Mk. \Y \tts said :

l%e gentleman from Mobile, [Mr. Dargan,] and the gentleman
from Monroe, [Mr. Gibbon?,] have not presented this question in
its real aspect. They have represented me as advocating a new


Mk. I > \i;<; in :

The gentleman misstates me. I wish to change a poticy which
has heretofore been pursued, and which the gentleman, [Mr.

Watts.) wishes still to adhere to.

Mk. Waits said :

Alabama i* forty-tw'o years "Id. having been formed into a State

in 1819, ami this amendment proposes a change — an interpolation

into the Constitution of something unknown — something unheard

of: and it is my motive to prevent this interpolation. Has anj
harm been heretofore done by the authority of any act of the
Legislature on this subject I Is the policy, the practice and the
happy experience of forty years to be cast awaj .' Before this is
done, will you not require those gentlemen who advocate this change
to show some good reason for it '. It', in fort} years experience, no
damage can he found to have grown on; of the old policy, why
should we abandon it I The gentleman from Monroe. [Mr. Gib-
bons,] seems really to he afraid to sleep, lest the Legislature du-
ring his slumbers, maj invade his rights of property. 8urely,he
cannot have spent many quiet nights during his residence in Ala-
bama; Cor the policy which inspires. him with such apprehensions

has always prevailed in the State.

It need not l.e disguised. Mi-. President, that this proposition
8pring8 from the Wishes of a few dissatisfied individuals. This old

policy of taxation for the benefil <>f Railroads, having operated in-
juriously in some respects, to the private interests of certain indi-
viduals, all the weight of their legislative influence is brought to
bear against it here. We should not legislate for such persons,
but for the general good.


In regard to the tax by the city of Mobile for the Great Missis-
sippi and Ohio Railroad, which has conferred such vast benefits
upon that city, I understand that, at the time of taking the rote,
there were only seven votes recorded against it 1 I am amazed
that this dissatisfaction should come from Mobile.

It is urged that you should not tax a man without his consent.
Sir, there are classes that should be taxed without their consent ;
there are men who refuse to aid in all improvements, because the
investment does not pay satifactory dividends. They prefer to
loan their money at two and three per cent, a month, and thus
grind the very citizens who build up the country. Shyloek re-
fuses to aid in building a Road which will enhance the value of
his own property — but he loans his money at usury to the citi-
zen, who. not only returns him his unholy per cent., but who adds
increased value to his property. This is his double thrift. Such
a man ought to be taxed, and forced to pay, if unwilling to pay.
His soul docs not rise above a picayune; his vision is limited by
the end of his nose; he is almost unfit to lie an inhabitant of a
thriving city. Such men are not the class for which we ought to
legislate. In casting about for the beneficiaries of legislation, they
ought to be regarded most, whose lofty feelings and enlarged
views extend, not only to the advancement of their private inter-
ests, hut to the growth and development of the country — to the
building up of cities — to the spread of civilization, and to the
general prosperity.

Mb. Dargan said :

I have said before, that a Tax, in its proper sense, is a sum of
money required by the Government of its subjects, to enable the
Government to perform its proper functions, and for which the
subject receives no other return than that of protection. It must,

therefore, lie levied for the < iovcrnineiit. and not for 8 private
corporation, or for the use of a private person.

Hence, all taxes levied tor the benefit of Railroad Companies,
(unless it lie with the express consent of the tax-payer,) are im-
proper and unjust, and is a departure from one of the great ob-
jects of Government — the protection of private property. But
if the tax-payer eon-., Mils to the tax, and thereby receives stock to
the extent of the tax he pays, this is not strictly a tax, hut is in
the nature of a contract, \,\ which the tax-payer becomes a si, up-
holder in the Companj : or, if he should consent to the tax with-
out receiving anything in return, still, the consent expressly giv-
en, justifies the levy of the money, not a- a tax in its proper


•. but as a sum of money contracted to l.e paid on a legal

If it Were true, Mr. President, that the progress and comple-
tion of Railroads required a departure from the great principl< —
the protection of private property — 1 should hold on to the prin-
ciple at the expense of Railroads. But the amendment, in nay
judgment, -will not impede in the slightesl degree the building of
Railroads, or the making of any other public improvement, li
only prohibits the making of 6ueb Roads or public improvements
upon improper principles, or rather in :i legal, not in an illegal

I think that all communities will aid willingly by consenting
to a tax, when 'In- work is of such a character as promises pub-
lic benefit arid commercial advantages. True, there maj be some
fin' who may object, bill the number will be/ew; and it seems
to be the object of the opponents of this amendment to reach
those few.; andtoeffecl that object, the} would sacrifice one of the
most valuable principles of Government, ami to initiate the doc-
i lino, that private property may be taken without the consent pf
the owner, and without confiscation, if a majority be of opinion
it will be a public benefit.

I would not. Mr. President, violate this great principle for such
a, purpose. It will hen poor compensation for the destruction
of such a principle that we extract from a few misers, as the\
have Keen called, a small sum of money by way of tax ; audi
cannot think how a wise statesman would, for such a purpose,
im pair a principle so vital to the peace and happiness of society .

Hut,. Mr. President, the opponents of this amendment do not
i in understand it in another view. They saj it will prevent
all cities and municipal corporations from undertaking any pub-
lic work, Or the erection <•!' an\ Railroad. In this they are mis
taken. If a municipal corporation be authorized by its charter
or by an Act of the Legislature, to subscribe as a stockholder to
a Railroad, the amount subscribed will be a debl that the city
will owe, and must pay it in the same manner that they arc
hound to pay an\ other debt. Bui then the stock will be prop-
erty belonging to the city, and the dividends, if any ever be
realized, will relieve the tax-payer />ro tanto.

The amendment does tiol prohibit the Legislature from ena-
bling a city or incorporated town from becoming a stockholder;
therefore, the Legislature maj give such authority ; and if the
Committee who reported the amendment intended by it so to
restrain the Legislature, they have failed to accomplish the object,
they had in view. But I do not understand that it was so intend


ed by the Committee The great object, As lam informed, the
Committee had in view in proposing this amendment to our Con-
stitution, was to place beyond cavil or doubt the great principle
that private property, "whether money. land Or personal proper-
ty other than money," should be held, sacred, and beyond the pow-
er even of the Legislature, unless taken fof taxes in its proper
and legitimate sense.

Mr. Gibbons said :

Mr. Pr< si<l< nt — As the gentleman from Montgomery has alluded
to personal matters affecting myself, I crave the indulgence of the
Convention for a few moments more; and that, I promise, shall
close my connection with this debate. The gentleman has alluded
to the Mobile and Ohio Railroad, as one that was entirely and suc-
cessfully built by the tax that was levied upon the real estate of
the city of Mobile. Permit me, sir, to say that that railroad was
not built by that tax. True, the tax contributed to build it, to the
extent that it went; but if the Road had depended upon that tax
alone for its construction, it would not have been built to this day.
The tax levied was one million of dollars, and the first estimate of
the Road, by the engineer, was over ten millions. If it had de-
pended upon that tax alone, levied upon Mobile property the Road
would never have gone beyond the limits of the State of Alabama.
<; .r, the Mobile and Ohio Road was built because it was an im-
provement cherished by all classes of people, and because all were
- friends, and none were its enemies; because every one felt dis-
posed, and called upon, to do all in his power for its completion.
The tax, in itself partial, and in its nature entirely unequal, being
confined to real estate alone, was voted almost universally (only
six votes being cast against it). Rut so deep was the interest felt
in the enterprise, that no one complained of injustice, but all di-
rected their efforts to the accomplishment of the work. This was
'he secret of the building of that Road

The gentleman from Montgomery [Mr. Watts] says I am dissatis-
witli the action of the citizens of Mobile, in the matter relat-
ing to the great Northern Railroad. Tin' gentleman will permit
me to say that he is mistaken, [am po1 dissatisfied with any-
thing that the citizens of Mobile have, done, as a body. The dis-
satisfaction of myself, and those thai acted with me, did not arise
from anythingthat the citizens of Mobile had done, but it arose
from what other parties had done, unauthorized, by the citizens of

The gentleman from Montgomery | Mr. Watte] calls upon us to

:;<>l bisto&i urn dkbatbs or

trust still the Legislature, Mid triumphantly asks, " Has tin- Le-
gislature done any harm?" Mr. President, I do not know
whether <>r not the Legislature of Alabama have done anj ham ;
luit I do know, that by virtue of their power to levj taxes, they
have imposed upon the city of Mobile the duty of contributing,
to tlif great Northern Railroad, some twenty-three hundred thou-
sand dollars, without their consent; and I know, further, thai the
Supreme Court of Alabama has pronounced this law, levying such
tax. constitutional. Whether it is harm or not, depends very
much. I presume, upon the medium through which we view it.
To me it is harm; to the gentleman, and to the stockholders hi
the Company, I doubt not it »* no harm whatever. A large, mass
of property-holders, with myself, thought it harm. an. I tried to
L'-'t relief by application to the Courts of the country. Hut the
Courts replied to us thus : •• We must administer the law as we
find it: we cannot make laws to meet particular cases. Inas-
much as this taxing-power is unrestrained by the Legislature, we
are not authorised to pronounce the law unconstitutional, however
unjust it may be in itself." This, sir. is our answer; and it is the
answer I. tor one, expected to receive, if the case ever was made
to turn upon the Constitutional question. 1 have been satisfied
for years, that under the current of the decisions of the Courts
of the country, there was no protection whatever in our Constitu-
tion for private properly. This defect is what we now propose to

remedy, by this Amendment. I certainly would be prepared to

trust the Legislature still, if I had not seen and felt that that body

had entered upon a career of legislation that will inevitably lead
to the most unmitigated tyranny. Amendments, similar to the

one proposed, have bees called for and adopted by almost all of
the Northern Slates. We cannot claim for our Legislature
greater purity than theirs; and yet the} have Keen forced to pro
tect private property, b\ clauses directly in the nature of prohib-
itions, upon their Legislatures.

The gentleman from Montgomery | Mr. Watts] does not pretend
to den) a single principle that we state, hut simply because, as he
says, I and the gentleman from Mobile have been injuriously af-
fected by a particular case, therefore the principles that we avow,
and the arguments by which we support 'his Amendment^ must
lie entirely disregarded. Mr. President, particular cases, .affect-
ing me or any one else, have nothing to do with the question un-
der discussion, except as they may serve for illustration. As
illustration, I am not afraid of them, and coinimmd them to the
lination of every member of this Convention.

The gentleman from Montgomery seems particularly anxious


to become the guardian of the Misers and Shylocks, a? he terms
tjhem, ot the State; an I h e wants this power left with the Lej
iature. in order that lie may make them shell out.

The gentleman forgets that the Misers and the Shyloeks of
this country hold their property and their money by the very
title and right by which the gentleman from Montgomery asserts
the principle of devoting his to Railroads. They hold and refa'n
(heir property by the same principle precisely that the profligate
spends his. Now, if the ges tleimin is justified in taking, by
force, the. key of the chest of the Miser or the Shylock, unlock
the same, and take their money, by the same right he mav tak<
the property of the spendthrift, and devote it to Railroads. Each
is an interference with that perfect dominion over property which
each citizen possesses by the laws of nature and society, an.:
which cannot be interfered with but at the risk of society i'lselt
The very reason that the gentleman gives for interfering with tlu
property of the Miser and the Shylock, to divert it to Railroads
would apply to every species of public improvement, ari<
amongst all those improvements, if taxes could be levied for all.
Neither the gentleman, nor any one else, would be envious of the
Misers or the Shyloeks in their midst, for there would be none
within their reach. Those that such legislation did not ruin and
reduce to poverty, would flee beyond the jurisdiction of these
laws. But, sir, we. are told that this Amendment ought not to be
adopted, because it is not properly wiihiu the scope of the pow-
ers of the Convention. That this Convention came here to pass
the ' Irdinance of Secession, and such Acts as are incidental to it
and nothing else. Mr. President, I know not where gentlemen
gel their ideas of the duties of this Convention. They certainly
do not get them from the Act of the Legislature calling the Com
vention ; an.l I shall never yield my assent to that narrow view
of my duties in this Convent ion, until 1 see some authority for it.
My ideas are that it is our duty to pass all Ordinances, and make

Online LibraryWilliam Russell SmithThe history and debates of the Convention of the people of Alabama, begun and held in the city of Montgomery, on the seventh day of January, 1861; in which is preserved the speeches of the secret sessions and many valuable state papers → online text (page 30 of 47)