The Texas Democrat (Austin, Tex.), Vol. 1, No. 11, Ed. 1, Saturday, April 7, 1849 Page: 1 of 4
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AUSTIN, SATURDAY, APRIL 7, IS 19.
NO. li.
VOL. I.
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r Sfew d . teSs . -rffi
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Hill I II "MISt ""-.T-U .. --- "' f ' - r "
a
T.HE TEIASDEMOCRAT,
Will be puWisIied CTcry Saturday by
W. HCUSHNEY.
The TEXAS DEMOCRAT will be continued i.ntil the aoan
mcnt in progress oliall bavebcen completed to i-.uo the 1 LXAb
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JJTUs
PKOSP
OP TH?
T E5 A S ST AT JTG A Z E T T E-.
' Earf.t in RlareTi next, the'undersigned will commence the pub-
licilion of aareeklv journal at the City ofAuM:n, to be caueci me
" Texas State GiV.TTE." For this purpose, an abundant supply ol
new material has been ordered, and wi'll be on hand in due season.
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tar to that ofthebeM weeklies now primed in the United States: in
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preserved, and filed or bound for future reference.- As the name
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tr, nrrl. TnH and fniihful renjrt of ihe proceedings of the Le
gislalure, to the publication of the laws nnmediaieiy after iheir
-nassac-vand to the acts and measure of the Executive Admmib-
i " - ,
iraiiuu.
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U4 XiUllU. JLU-l luuuiuii ww
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Irom i:ip commenceineiii.
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W. H. CUSII2JEY.
Austiv, Jannarv 8, 1810.
APPOitTlOMEKT BILL-OPINION OF THE
SUPREME COURT.
4 . -r-v
Smitu vs. Biunrx Supjikme Court, ukccmbeii
Tkum, ISIS.
Appeal from ihe Dislrict Court of Comal County.
This suit was instituted on an instrument of writiiiff.
signed by the defendant, in the following words, that
isto sav: "I hereby bind and obligate myself to pay
Josiah Smith the sum of onc-huridivd and fifty dollars,
if he furnish, at the town oTew Braunfels, by the Gib
- day of November next, any law of the State of Texas,
showing that the next legislature of the said Stale
will be composed of seventy members, in both blanch-
es. This the 6th day ofS'epiembor, ISIS."
The plaintiff alleged, that he had performed the con-
dition, by the production of the law. The defendant
denied that the act produced, was lawfully and con-
stitutionally passed. It was manifestly the object of
the parties in this suit, to obtain a judicial decision on
the constitutionality of the Apportionment Act of the
last Legislature. The suit is not founded on a bona
fide transaction. It is either an entire fiction, or it is
a vaoer, designed to effect the same object. Fictitious
cases are often presented in the form of a wager, be-
ln contravention ot law, but
not thought it had been directed out of chancery, he
would not have tried it; and his Loidship added
"do you bring fob actions to learn the opinion of the
court?" In the case of Fletcher vs. Peclr,which in-
volved very important principles. Judge Johnson said.
'l I have been ver unwilling to proceed to the decis-
ion of this case at?all. It appears to me, to bear strong
evidence upon the face of it. of being a mere feigned
case. It is our duty to decide on the rights, but not
on the speculations', of parties. My confidence, how-
ever, in the respectable gentlemen who have been en-
gaged for the parties, has induced me to abandon my
scruples in the belief that they would never consent
to impose a mere feigned case upon the court" 6
Cranch 147-S. The same confidence in the respect-
able gentlemen who have been concerned in this case,
in like manner forbids the indulgence of a suspicion
that tliey would impose a feigned case on this court.
But notwithstanding the language in which the obli-
gation is couched, we cannot place any other construc-
tion on it. than that it is a wager. No one can believe
that it was designed as a compensation for the trouble
aud labor of proem ingtheact of theLegislature. proper-
ly authenticated from the State Department: and the
record shows that, on the production of the act as
evidence of performance by the p'laintiff, the defendant,
in his answer, denied that it was a law, because not
passed in conformity with the constitution. We shall,
therefore, proceed to consider it as a wager.
At common law, wagers weie allowed to be a good
ground of action, if not on a subject forbidden by law.
or contrary to policy, or to wood morals. The case of
Herkin vs. Guerss 12 East. 247 " was an action of
assumpsit upon a wager of 30D. upon the practice of
ihe court, whether a person could be lawfully held to
bail on a special, original, for a debt under. 49. it was
entered for trial at the last sittings at Guildhall, before
Lord Ellenborongh, Chief'Jnstice, who, on hearing
the nature of the cause, reprehended the indecorum of
the attempt to obtain, in this manner. Ihe opinion of
the court upon n question of law: or judicial practice,-
in which the parlies had no apparent interest, other
than what 4he wager itsnii created and his Lordship
refused to try the cause, telling the plaintiffs counsel
thatiie might apply to this couft upon the subject, if
his client felt aggrieved-by such refusal. On the ques-
tion being presented to the other judges, they concur-
red with Ihe Loid Chief Justice in the propriety of his
refusal to fry a cause of this description. And his
Lordship added, that courts of justice were constituted
for the purpose of deciding really existing questions of
right between parlies, and were not bound to answer
whatever impertinent questions persons thought pro
afino-n territorial governmenun Minesota has also be- the occasion. This resolution Was that the thanks o
come a law, the House of Representatives having re-, the Senate are due, and are hereby tendered, to GeOi
ceded from its amendment proposing to postpone the, M. Dallas, Vice President of the United States, for the
operation of the bill lo the tenth of this month. A bill ability and impartiality with whidh he has discharged
was passed in reference to the next census, directing ihe duties of President of the Senate, during his official
the heads of some of the departments and the At tor J term. The resolution was unanimously adopted.
ney-General. to prepare and report at the next session
of Cono-rcssa bill to authorise the taking of the seventh
r.Rnsiis"of the United States. Business ot a miscclla
neons character was transacted, and after having dis-1
nosed of the civil and diplomatic appropriation bill, the
.Senate, at about six o'clock in the morning, went into
executive session, when Mr. senator llannegan, ot In-
diana, was nominated by the President, and confirmed
by the Senate, lo be Minister of the United States to
Berlin."
Tnn Reception1 of Gen. Cass at Cumberland.
Md., last Monday night, on his way to Washington, it
appears by the Alleganian, was quite enthusiastic, the
uniied demociacy of ihe place, and many whigs as-sembimo-
to greet him with loud acclamations and a
band of music To a brief address ft om Tho'mas Perry,
Esq.. expiessive of the pleasure it gave them to see
Him,'in whose patriotism they had entire confidence,
coming again to give his counsel in matters of deep
concern to ihe nation, he leplied as follows :
" Fellow Citizens : Tne reception you have given
me in Cumberland, this evening, was entirely unex-
pected. I am not prepared to make a speech ; and if
even I were, it would be in bad taste to make a politi-
cal one under the circumstances. The countty has
just passed through a most sanguinary political con
test, and it becomes the duty ol all to tnrow asmc an
fceibity of political feeling; "and lally in support of the
iCKStitution which governs our happy Union. We
Should cling to it, as does the. mariner to the last plank
of his b-j'rk when compass and rudder are lost in the
'darkness and the storm.
' Fiftytyears'ago I passed through this place I was
Uien bit a lad on my way to theVr west" I located
in a then Territory, numbering about 20,000 inhabi-
tants I have, under the Providence of God: lived to
let: that "then unsettled "country produceye States,
fevhich now contain about five millions ot people !
Thus our country is advancing. Whilst the govern-
ments of Europe. are tottering from centre to circum-
ference, the American Union is growing in stiength,
and has spread herself from the Atlantic to the Pacific.
Vfe are now the admiration of the world. All eyes
arc upon us hence it behoves us, one and all, to do
our duty in support of our institutions, which I hope
kind Providence may he perpetuaieci to ute
The Late Congress. If the late Congress does
not retire from the scene of its disgrace, with the uni-
versal contempt and indignation of an insulted people,
it is because there is infinitely more respect for the
country and its institutions among Constituents than
their representatives
To the world at large) the national legislative as-
sembly is the exponent of the popular character. But
we protest, most earnestly protest, against such a con-
struction with reference to tke newly defunct Con-
gress. We should be faithless to the intelligence, the
patriotism, and the naiioual pride of any class of the
people, as a class, to allow such a construction with-
out a remonstrance And it is a libel upon the con-
stituency of ihe late Congress, to suppose that they
voted for such men as were to be found in association
witR it. To suppose that any considerable pprtion of
the people bestowed their suffrage upon any man who
would consent to leave the vast territorial acquisitions
upon the Pacific for the space of another year, desti-
tute of all civil government and without an induce-
ment thereto, is to suppose them indifferent toils Ad-
vantages as applied to themselves. But such a suppo-
sition is not inconsistent with the character of suclra
Congress. For, were the blessings of civ,il government
indefinitely committed to the dispensation of such an
assembly, the safety of the State would be better se-
cured and anarchy averted,, by the re-assumption on
the part of the people of thefrdelegated powers, and
the administration of public affairs from a prpular as-
?.Ir. Clay has published a long letter in faror of the
gradual abolition of slavery in Kentucky to begin
Ji 1S53 or 1SG0 the --negroes to bn sent out of the
nro
ceitain that the Kentucky Convention will adopt
means to abolish slavery in that state. The effect
will be, however, not to give freedom to the negroes,
but to cause their owners to seek a market for them
in other states. The papers of Mississippi and Lou-
isiana are already calling for legislative action in those
.states to prevent the fuither importation of slaves.
Civilian.
under a
.-:j .... innritnnni oitflpnnTic Tftverno innnrrhr nrn. i
ur:!!-r- :""" "i""- -Lotih or hundredihjrcncration.
ner to nslr Hiampn me mrm or rm acnonron a wager: u r
ihnl though there was noniing immoral m me siid-pci
of ibis wager, vol he considered it rts an extremely im-'
pudent attempt lo compel the con it lo give an opinion
upon an abstract question of law. not aiising out of
pro existing ciicnmstances in which the parties had
an interest. And Le Blanc, .Tusiice. said ''-'that if by
anv other proceedings in court it appeared that, in
l ruth, no such wager had really been made, the court
won'd know how to deal with the case."
In ibis rase, as presented by the record, it would be
nvrremolv improper to ennnire into ihe conduct of an
independent department of the government, on an is-
sue, in which the parlies had no interest other than
that crealed bv the wager sued for. The wager is ob-
noxious fo apother obieclion: it implicates the inleg-
ritv of high functionaries of the legislative doparlment
in the discharge of an ofilrial trust, in a wnv in which
thev cannot bo heard in the defence. If those func-
lionarips are justly chargable with the delinquencies
urged in the record against them, such derelictions
are not proper subjects of a wager; and if not. it
would be doing them great injustice to allow their
conduct lo become the subiect-matter of a gambling
contract. The ends of public justice can be attained
without tesorting lo such moans. The court below
did not err in refusing lo give the plaintiff a iudgmont.
That judgment is affirmed. LIPSCOMB.
ADJOURNMENT OF CONGRESS.
The National Intelligencer of Monday, says:
."The last days' silling of the Thirtieth Congress was
extended, with the exception of a brief recess of an
hour or so, from eleven o'clock on Saturday morning
until smii-isc vnssord.tv morning. By the list of acts
W ........ -i. , j ,-, r
the administration
semblage. . v -
It would be manifestly unjuslnn the use ofgeneral
teimsj to leave the impression th'atan indiscriminate
stricture is intended. On the co'ntjrary, there are many
honorable exceptions; but unfortunately for individu-
als Congress exists as a body a unit before the-people
and it must be inevitably tried by its acts as they
are and can be affected, frequently by-the fmpractica-
bilily aud degradation of the few. The-exceptions1
must be referred to the several constituencies, andbe
determined by life votes, speeches, and general con-
duct of the several members.
The disgraceful scenes of the last night of the ses
sion, cannot escape the indignant denunciation: of the
people, even were the press under imperial censorship
with lefererice to them. They We traits of character, .
and the members have chosen to give prominence to '
them. One of "our corespondents good naturedly de-
precates remark, and observes that "the muse of histo-
j ry has no-pencil with which to record such events."
But she has .not been too modest to borrow one irom
the iinerrin.T "nhonoffraphist" of the daily press. The
a v . ' , -i -
s . , t - -i i in.; in it 1 1
country, and the expense ol the shipment to oe paia , itI is niade, and the revolting exhibitions of Sa
ut ot the procerus oi tnetr iauor, uy huhi l" l u,rday nirht or Sunday morning, are Upon public re-
meter me aumomy.ui mo awn., i.... ,. ...i ry , -, ,iiroIIffilont , ,c and.
fa :en Irom their owners, it is now re"aruuu iu
foreseen, not without severe conflict as well in the
committees as in the two Mouses, ifiAvhich more ex-
citement and unpleasant feelings were manifested than
has, perhaps, ever before been witnessed at the close of
the session. The general appropriation bill was barely
saved at the latest moment, through the perseverance
and patriotic efforts of those gentlemen in both houses
who were not willing to sec the wheels oi tiie govern
cause every wager is not
every fictitious case is a contempt of the court ; and
ri.rn l.-nnum tn bn such, has subjected the oarlics to
the severe animadversions of the court such as fine passed, it will'be perceived that all the annual appro-1
and imprisonment. In lhe matter of R. J. Elsane. an priation bills have become laws, though as we had :
attorney, 3 Barn.&Cres. 597 10 Cond. C.L. 193, aspe-
ct al case was stated for "the opinion of the courV, the
rreater pa'rt of the statement was fictitious. 1 he com I
fined the attorney. The defendant, by affidavit, staled
his reasons for wishing to obtain the opinion of the
court, specially; and that he was not actuated by any
corrupt or fraudulent motive, and that he had already
incurred an expense of forty pounds in the business.
Abbott, Chief Justice, said it was impossible "to pass
over a case of this kind without notice; but as it ap-
pears that the party before the court did not intend
any fraud, and that he has already incurred an expense
of forty pounds in the course of these proceedings, the
object of the court, which is to prevent the repetition
of such a practice in uuurc. win ne answereu oy m-
dering him to pay a fine of forty pounds, and to be
imprisoned until that fine be paid." The case in which
this fiction was intended to be practised, is entitled
Fox vs. Dodds; and if will be seen that on the suspi
cjon of its being a fiction, the court had diiccted the
master to report whether it was a fiction ; aud on his
report coming in, the case was stopped, and not per-
mitted to proceed further. In lhe case of Fox vs.
Phillips Rep'. Temp. Harder 237 Loid Ilardwicke
held a fictitious action to be a contempt of court, and
committed the parties, and their common attorney.
In Brewster vs. Kitchen Cond. 425 which was t
feigned issue. Lod Chief Justice Holt said if he had
The millions on whose
minds current history is -written, have received the un-
welcome impression of a Congress disgraced by brawls
and b'ows. An excuse is suggested for the passions
of legislators '-after they have dined." In other words,
the people will perhaps charitably palliate the deeds
of their representative when they are inflamed with
wine. Well, the people are-very good natured; but
we should like to hear one of these bibacious worthies'
"rise to a personal explanation" before his constituency
and plead as an excuse for converting the halls of Con-
gress into a "bear-garden' or something worse, his
weakness with the bottle at his side. Why, in thi3
our day, that constituency wherever it might be, would
march out before his eyes, its thousands of stronger
nobler men than he, and thus rebuke the vain excuse.
Baltimore Sun.
Tnn Union's Opi ion of the Inaugural. The
official organ of the late administartion remarks as
follows upon Gen. Taylors Inaugural address:
"The new President's inaugural address is the"
shortest document which has probaby ever been deli-
vered by any incoming President. It consists in gen-
eral of common place,- non-committal generalities.
But it is impossible not to perceive the strong federal
spirit which breathes from it. We say honestlyjitsounds
to our ears as ultra whig. We hear nothing in it of
the limited powers of the federal government of the
strict construction of the constitution. On the contra-
ry, we see powers claimed which the constitution does
not recognise, for our internal policy. It appears, too,-
from the' language of the President, as if he were dis-
posed to shilt his own constitutional responsibility
upon the shoulders of the other departments, especially
of Congress. We have no room, however, to enter
into the matter to day, and no disposition to indulge
in any critical review of the positions which are as-
sumed in this brief document. But it is sufficiently
obvious, from all the signs of the times, that we are to.
have a party, and a strong party, administration, and
that the republican party must stand to their arms not
to wage ally factious opposition, but to rally around
their ancient principles, (of Jefferson and Jackson,)
and to defend the true theory of lhe constitution, andi
- ... i i , . ::
" " .. ' . i r .t.: irKt n in mnas res w jhv.i vin niftitssuuuii
therefote, with slating the lesult ot the most marked, that as htscoueag'.e, me li'-" '" " t ,
mnoitnnt Questions left for final decision on that day. son, had hciotofore been called to preside ovci mo olii- j Thc -t,yas,jngton correspondent of the Charleston
'"I" ! ' i ' ' ..... i .. :.:i.. ;,.no-.of.,iionc ho. would move. .. it,. ri .i. .,. r .---
follows: . "ie, uimer muimhi iih.iihioihh."--, - . ' ( Vyoiinur, say iUl vwuamui, wiu nuw iruauiiciaiui vjib-
" First no bill has passed niovidinn-a government: that without a formal ballot, he be now appointed j ncrni js a Ulan 0f talent and stem integrity, but his
i hoi, iiu ""l " I r . !.. f .i i- . .,fl din nmlinii tt'fio ' . . . . i .. -Or -
for either Tcrriloties of New Mexico or California President pro tern, oi tuc ouiiau-, "u " "" judgment is somewnat questionable. The iew i!ing-
Thesc measures fell through, ftom the inability of thc unanimously agreed to. ' laud men here do not consider it as a fair representa-
two Houses to concur in any proposition. At the last V- Mr. Webster then rose and said, thai they had just tion of lheir seCjon. They wished to seeria the Ca
mouuuu-u --',',, .t t..; i ,rt w.f;.-niv.nnt Horn the chair of the Senate, i r ii.,.;r fi;tt;nBicUnrf mon.
moment, however, a out nom uie nuusc was taiwu " wmira ,i -.... -"., ,, ,v,.n i..lf , "" u"lx v'uu u l"v"1 "- -
1 1 .. l akv I'l nClIIIIII 111 1111. 1 IIIIIV J l-.-V-- w . - -- .... -
Fi3T Appointment. Brook Williams, brothcr-
itilaw of Mr. Bodisco, the Russian mifiister, was ap-
RETIREMENT OF MR. DALLAS.
In the Senate of thc United States on the 2d March,
Mr. Dallas, thc Vice President, at 1 o'clock, rose, and in
an eloquent and very appropriate address of cousidera
ble length, stated thiit the close of his official term be-
ing near at hand, custom required that he should with-
draw from the Senate, to enable them to appoint a
temporary president.
lie returned his thanks to all, for the efforts to
lighten the burthen of his office, and the uniform
kindness and courtesy which they had manifested to-
ward him. He bore testimony, from an experience of
many years, to the grave and dignified deportment
which Irud characterised its proceedings, and to the
frank, liberal and courteous demeanor which had
marked their private intercourse. He had been called
upon, he said, during his official' term, to exercise the
right due to him under the. constitution, and thc duty
imposed upon him by an express rule of the Senate
that of voting on questions whore the Senate was
equally divided not less than thirty times.
He was not conscious, in a single instance, of having
filtered in the performance of his duty of voting as
he conceived to be in harmony with the views and in-
terests of the whole people. In conclusion, he said
that with a draft on their general indulgence to forget
thc errors which ne may navu wnnumitu. i- o..v-.,u
. ,i .. ;..;n,i,i K,r MMtMirlmn-ilincnnnlinc' hn.-ir until him into retirement a graieiui reconc.uun
necessary to keep them in motion. Such was yestcr- of their kindness, and an ardent wish that their elicits
dav the complete exhaustion, as well of the officers of , to promote the puhltc weiiate imsnuou iuw.ui.u ..
ihe two Houses as of our repotters, that it has been itn
nossible for us to offer lo our leaders, lo day. any thing
h!.- n rno-nlnr mnort of the proceedings in either house and prospetity.
ri riorr iho ciftinrr nf S.itnrdav. We must content our- When he had concluded
UUiUI kIW MIIM -w wt - . .
that approbation which should follow an exercise
the purest patriotism, and with a long life of happm
mess
Mr. Benton rose and rc-
bv the Senate, and has become a law. for extending
. . ' ..1. n. ..! o. ... . .1 rn......;,-!
ties
become
tcdiou
of the Vice Piesident of the United States, who had ;
.,.-. .: .1...:..,. .K..-1 .. r ,-,r
..- . ' r,I, nniirwl Si... toe ilmco 'IVrr M- nrns flnil nvo.r their dellOQrailons uiiiiii" uiu ..!v t.M-
me icu-mtu i.is u. i- - - -- ' . ,.V:.".:V--., - - , f r.,rTr ,.:irv Tt wive him frioal
The bill to establish the Home Department lias'tilulional period of four years It gave h mi g imt
if a law havin-r passed the Senate after a long, pleasure to pcifom a duty Much he had men n fi-
Vand rather stormy debate. The bill for crc-liargn, that of oflermg thc resolution opprop .l ..
r4n
p , h- -735l"".11
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The Texas Democrat (Austin, Tex.), Vol. 1, No. 11, Ed. 1, Saturday, April 7, 1849, newspaper, April 7, 1849; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth48391/m1/1/?q=Lamar+University: accessed June 5, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.