History of Alabama and dictionary of Alabama biography, Volume I, Part 57

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869-
Publication date: 1921
Publisher: Chicago, The S. J. Clarke publishing company
Number of Pages: 756

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"From and after the first day of October next, all the laws of the governor and judges, all the acts of the general assembly of the Mississippi Territory, and all statutes of England and Great Britain, not contained in the said volume of statutes, shall cease to have any force or validity in this Territory," but it was expressly provided that private or local acts were excepted.

Two hundred copies were ordered to be printed, and the same act provided that the legislative acts of that session shall not be printed, it being assumed that they would all be included, so far as effective, in the digest.

A supplementary act was passed March 1, 1808, reciting that because of the indisposi- tion of Judge Toulmin, which had prevented him from comparing and correcting the proofs in printing the digest, it should nevertheless be in full force and effect, notwithstanding typographical errors, but it was provided that such errors should not be so construed as to render them of validity, or to alter the original or true construction of such error in anv clause or sentence thereof.

Turner's Digest, 1816 .- The second com- pilation of the laws of the Mississippi Territory is what is known as Turner's digest, compiled by Edward Turner, one of the judges of the Territory, and a prominent lawyer and public spirited citizen. By act of December 13, 1815, it is provided that there should be a complete edition or compilation of the acts of the general assem- bly of this Territory, in the form of a digest, to be made and prepared as hereafter pro- vided; the digest shall comprise the public

TOMB OF WILLIAM WYATT BIBB, FIRST GOVERNOR OF ALABAMA, IN OLD FAMILY BURIAL GROUND, NEAR COOSADA, ELMORE COUNTY

Vol. 1-19

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acts in force at the time of making said digest; the titles of those which have expired or been repealed, and the dates thereof, to- gether with various other public documents, all to be arranged under appropriate head- ings, and following each other in the order the same were respectively passed. The com- pilation was to be known as the "Statutes of the Mississippi Territory." It was expressly provided that the compiler should not omit from the digest any act or section of an act, about which he had any doubt as to whether it had been repealed, but he was to insert it in its proper place, "with a note explaining the ground upon which such doubt exists."

The legislature by joint hallot electedJudge Edward Turner, above referred to. He was required to give bond and security, approved by the governor, for three thousand dollars, conditioned for the faithful performance of his duties. He was required to "prepare a compendium or epitome of said digest, alpha- betically arranged." The whole work was to be completed and delivered to the printer on or before the first day of July, 1816.

The book when printed, contained all laws of the Territory from 1798, through the ses- sion of the territorial assembly of 1815. The appendix contained all laws of the second ses- sion of the ninth general assembly, Novem- ber 4 to December 13, 1816. This was the last session of the territorial legislature.

Toulmin's Digest, 1823 .- The constitution makers, 1819, in the schedules of the instru- ment then adopted provided that:

"Sec. 5. All laws and parts of laws, now in force in the Alabama Territory, which are not repugnant to the provisions of this con- stitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation, or shall be altered, or repealed, by the legislature thereof."

The same instrument adopted the two fol- lowing sections:

"Sec. 19. It shall be the duty of the general assembly, as soon as circumstances will per- mit, to form a penal code, founded on prin- ciples of reformation, and not of vindictive justice.

"Sec. 20. Within five years after the adop- tion of this constitution, the body of our laws, civil and criminal, shall be revised, digested, and arranged under proper heads, and pro- mulgated in such manner as the general assembly may direct; and a like revision, digest, and promulgation, shall be made with- in every subsequent period of ten years."

The first state legislature, in order to carry into effect the requirements of sec. 20 of article vi. of the constitution just quoted, appointed the judges of the circuit courts and the attorney general as commissioners "to compile and digest, in a volume of convenient size, all the laws that are now in force in this State."

The commissioners were required to submit their work to the next session of the legisla- ture, and to accompany the digest with "such amendments as they may think the existing laws require." If any action was ever taken

by the judges and the attorney general, no record is available. Certainly, there was no action taken by the legislature of 1820.

However, the session of 1821 passed an act dated March 28, 1821, providing for the elec- tion, by joint vote of both houses, of a "suit- able person, whose duty it shall be to com- pile under one head, all the statute laws now in force in the State of Alabama, relating to each particular subject." The digester to be elected was required to submit his manuscript to the next session of the legislature, and if found by them "to be correctly executed," he was to receive such compensation as they might allow. Harry Toulmin, one of the oldest residents of the State, who had occupied the position of superior court judge, both under the Mississippi Territory and the Alabama Territory, 1804 to 1819, was appointed to the task.

An act dated December 12, 1821, directed that Judge Toulmin should "make memoran- dums, in the progress of his examination, of any defects, inconsistencies, ambiguities, or imperfections, in the statutes of this State, which may appear to him to exist, and to make report thereof, detached from his report of the digest of the laws to the general assembly at their next session." The judges of the supreme and circuit courts were required to make like memorandums for submission to the legislature. Judge Toulmin submitted his work to the legislature of 1822-3, and an act was passed January 1, 1823, making an appro- priation of fifteen hundred dollars for the work compiled in obedience to the act of November 28, 1821. The act contained the express proviso that nothing should be so con- strued as to prevent the next legislature from making such additional compensation as they might deem just and proper. He was required to make an index to the digest, and to super- intend the printing. For the latter, he was to receive such compensation as the next legislature might authorize. He was further required to include in the digest, all laws passed at the session of 1822-3, the compen- sation therefor to be included in the amount for the original work. The book was to include the enabling act, the Constitution of the United States, the Declaration of Inde- pendence, and the Constitution of the State.

Two thousand copies were ordered. Mi- nute directions were given for their distribu- tion to all state officers and justices of the peace. Copies were to be sold at five dollars each. The governor was required to appoint suitable agents, depositing with them such copies as he might direct. The agents were to give bond for the faithful discharge of their duties. On the date that the digest was accepted, another law was passed providing:

"That the secretary of state be authorized and required to receive and keep the manu- script copy of the statute laws of this State, digested and prepared by Harry Toulmin, Esq., until the same shall be demanded by the gov- ernor of this State, or some person duly authorized by him to receive the same." So far as is known the manuscript is not in existence.

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This digest was printed in 1823 and de- livered in accordance with the requirements of the act, and immediately went into effect. However, the exact date is not known. There is extant no proclamation or other declaration as to when it should become effective. No act of the legislature on the subject has been found.

Judge Toulmin did his work well. Wholly apart from its value as a compilation of the laws in force at the time of publication, it has much antiquarian value. It brings for- ward many of the oldest laws of the Territory, and contains numerous local laws then in force, which were by law omitted from later compilations. The antiquarian must con- stantly refer to it for the beginnings of the State, its counties, and much in reference to the economic, political and social history of the commonwealth.

Judge Toulmin died pending the printing of the digest. The legislature of 1823-4, on December 30, 1823, made an appropriation of one hundred dollars to his-"legal represen- tative," for the preparation by him of a table of contents to the digest and for other serv- ices, such appropriation to be considered a full and complete satisfaction for all labors and services by him in connection with the digest.

The same act contained another detail connected with the publication. It seems that the original contract had been let to J. & J. Harper, Printers, New York, but the title page bears the imprint: "Cahawba: Published by Ginn & Curtis, 1823."

The act of December 30, 1823, just referred to, makes an appropriation of twelve hundred dollars to Henry Hitchcock, "for his expenses in traveling to, and from the city of New York, and superintending the printing and correcting the manuscript copy of the digest of this State, and making an index for the same."-Acts. 1823-4, p. 107.

Aikin's Digest, 1833 .- In obedience to the constitutional mandate January 20, 1832, the legislature provided for the election, by that body, of "a suitable person, whose duty it shall be to compile, under appropriate heads, all the statute laws of a public and general nature, now in force in the State," and to provide "a proper index with marginal notes to such digest." John G. Aikin, then a prac- ticing lawyer at Tuscaloosa, was chosen. The manuscript was reported, and January 10, 1833, was adopted, and ordered printed and distributed. The compiler was paid the sum of $2,500 for his work, and $800 for superin- tending the printing. Three thousand copies were authorized.

In submitting his work, among other things, Mr. Aikin said:

"There are few things about which so great a diversity of tastes is likely to be indulged, as what constitutes the standard of excellence in a digest of statute laws. While some can be pleased with nothing which falls short of a strictly scientific method, and a selection confined to the spirit of the enact- ment, there are others who carry their venera- tion for the sources of the law so far, as to

be willing to make a digest, not so much a receptacle of the law in force, as a history of the legislation of the country-not only a conservatory of the valuable lights which dis- ciplined minds have shed upon the path of jurisprudence, but a servile and unprofitable memento of everything, whether of form or substance, to which inexperience, caprice, or temerity, has lent the casual impress of a legislative sanction."

The commission, appointed to examine the manuscript was Messrs. John Brown (Red), R. E. B. Baylor and Caswell R. Clifton.

The act of January 10, 1833, fixed the date when the digest should go into effect as Janu- ary 1, 1834, and in connection therewith re- pealed "all laws of a general and public nature passed previously at the present or late called session of the legislature, and not in- cluded in the said digest."

Aikin's Digest and Supplement, 1836 .- In 1836 the original digest, together with a supplement, containing the public acts passed for 1833, 1834 and 1835, was published under authorization of act of January 9, 1836, but "at his own expense and risk." The supplement so printed was to be "received and accredited equally with the first edition." The number of volumes printed is not known.

Military Code, 1838 .- A military code (8 vo., pp. 136) was authorized by the legislature December 23, 1836. Generals George W. Crabb, J. T. Bradford, and Booth were appointed by the governor to prepare the com- pilation. General Booth did not act. On November 16, 1837 Messrs. Crabb and Brad- ford submitted their work which was adopted

An edition of 4,500 copies was ordered, the book to be printed "in the style of the Militia System of South Carolina, published in 1835." The code was also printed in full in Meek's Supplement, supra.

Meek's Supplement to Aikin's Digest .- In 1841 Alexander B. Meek, who had served as attorney-general in 1836, compiled a supple- ment to Aikin's Digest (8 vo., pp. 409.), con- taining all the unrepealed laws of a public and general nature of the legislature, passed since the session of 1835, and up to the close of the called session in April, 1841.

The book does not appear to have had legislative approval. The number of the edition is not known.

Among other things, it contains the Mill- tary Code, compiled by Generals G. W. Crabb and J. T. Bradford, separately printed in 1838. It also contains, in an appendix, the rules for the regulation of chancery practice, adopted by the supreme court judges in Janu- ary, 1941. (See Chancery Courts. )

Penal Code, 1841 .- With the act of Janu- ary 26, 1839, establishing a state prison and penitentiary, provision was made for "a code of criminal laws, adapted to the penitentiary system of punishment, and a set of rules suit- able to the organization of the prison hereby established." The legislature was directed by joint vote to elect "three competent indi- viduals" to make the compilation for sub- mission to the next session. Judges Henry W. Collier, John J. Ormond and Henry Gold-

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thwaite, of the supreme court, were chosen. At the session of 1840, an appropriation was made, February 5, paying them $500 each for their services in preparing the code. A prior act, January 31, appropriated $240 to James Chestney for serving as clerk to the judges in this work. The code was formally adopted by an act of a still later session January 9, 1841, and it appears as pages 103 to 192 inclusive, in the printed laws of that session.

Clay's Digest, 1843 .- The next decennial revision was authorized on December 28, 1841. To make the compilation Gov. Bagby appointed Judge Clement C. Clay. The work was compiled and reported at the next ses- sion as required. It was adopted January 11, 1843, to be in force on -. An edition of 3,000 copies was ordered printed. The compiler was allowed $2,000 for his serv- ices, and $850 for carrying the work through the press.

The work of Judge Clay was prepared in substantially the same form as Aikin's Digest. The volume contains all the statutes of a pub- lic and general nature in force at the close of the general assembly in February, 1843. (February 15, 1843.)

Code, 1852 .- About the date of the adop- tion of Clay's Digest in 1843, and for several years thereafter the general subject of codifi- cation was much discussed, both by lawyers and other leading public men. As the result of an agitation led by David Dudley Field, the constitution of New York provided for a commission to reform procedure and to codify the laws. In 1850 these were completed. It was in this period of agitation that the legis- lature of 1849 convened. Under the usual procedure it was within the province of that body to provide for the decennial revision re- quired by the state constitution. It was not unnatural, therefore, that the influence of the discussion favorable to codification should be reflected both in the recommendations of the chief executive, and in the legislative action. Gov. Henry W. Collier in his message to the legislature, dated December 21, 1849, imme- diately following his inauguration, made the following among other recommendations:

"I recommend the appointment of two gentlemen of the legal profesion, not only to arrange the laws under their appropriate heads, but to revise them thoroughly, reform their phraseology where it is proper to do so, omit such as have been repealed-complete all defective titles, by adding to or subtract- ing from them. In short, let them present to the General Assembly a body of laws, per- spicuous, concise and comprehensive in style, with an arrangement so simple and natural as to be easy of consultation-a code adapted to all classes and conditions of our people as near as may be. At the foot of each page the decisions of the supreme court which are per- tinent or tend to explicate the enactments in the text should be noted.

"The qualifications necessary to the accom- plishment of this interesting task are much professional learning-untiring industry, with a style combining the constituents I have mentioned-besides a general acquaintance

with the legislation of Great Britain and the States of the American Union. Unless these attainments are secured, the work may fall far short of meeting the wants of the public. My acquaintance with the professional talent of this State, enables me to say that we have gentlemen among us who are altogether com- petent to the high and responsible duties I have enumerated.

"A digest, or compilation (as it is indis- criminately designated,) of our statute law would not remove the evil complained of. The universal objection of lawyers, and those who are engaged in the administration of justice, is not so much that our previous com- pilations want method and order; but it reaches to the unsuitable and almost inexpli- cable terms in which many of the statutes are expressed-the inexpediency of some of the enactments, and to the incompleteness of almost every leading title. These defects have been a fruitful source of litigation, and have imposed upon the judiciary an amount of perplexing labor, of which those only who are familiar with the proceeding of our courts of justice can form a proper conception. The supreme court have toiled much in the con- struction of statutes which the omission, addi- tion or substitution of a few words would render free from ambiguity. In endeavoring to supply the defectiveness of particular heads, it has been compelled to resort to analogies not at all times as pertinent as could be desired; but generally the most oppo- site that our jurisprudence afforded. It is among the unpleasant duties of a conscien- tious judge to be compelled to follow a path so indistinctly marked, and with all the patience he can summons, he is inclined to rebuke the legislature for the want of carefulness and precision."

The legislature thereupon passed an act providing for "a code of the statutes of Ala- bama," and "a code of practice in the courts of this state." The act itself carried the appointment of John J. Ormond, George Goldthwaite and John Erwin as commission- ers. It was made their duty to "reduce the several subjects into proper chapters and sections; bringing into each chapter, as near as may be, a condensation of all the public laws appertaining to the subject treated in each chapter; that said board shall not simply transfer the statutes, but shall (without changing the sense) so alter their phraseology as to exclude all redundancy of expression; and where there shall be several acts relating to the same subject they shall be condensed into one, and so expressed as clearly to set forth the sense of the whole, having regard to judicial expositions thereof." The act further declares that "whenever it shall be apparent that there may be legislative omis- sions in any statute. said board shall supply the same, so as to perfect such statute and render its operation complete." On comple- tion of their work they were to submit a copy to the Governor, to be by him reported, with recommendations, to the next legislature. He was also to recommend suitable compensa- tion for the work, and in the event of vacan-

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cies, he was given authority to make any appointments. John Erwin having resigned, Gov. Arthur P. Bagby was appointed.

At the next session Gov. Collier in his message to the legislature, November 11, 1851, stated that the commissioners had not at that time been able to complete the codes and submit the copy required. However, he stated that he had examined portions of the work and that he was persuaded that many valnable changes were introduced, "which are demanded by public opinion, and that they (meaning the codes) indicate much thought and laborious research."

Later in the session on the code being presented, it was transmitted to the legisla- ture. and a joint committee appointed to make an examination. The report of the committee is set forth at length in the Jour- nal of the house of representatives in the proceedings of January 8, 1852. Mr. Phillips was chairman of the committee on the part of the house, and A. J. Walker, who later be- came the codifier of the laws of 1867, was chairman of the senate commitee. Among other things the committee commended the work, finding that it combined "simplicity, order and clearness." The old plan in use in previous digests, whereby an alphabetical arrangement was employed, and by which statutes having no connection with or depend- ence on each other were necessarily thrown together without any arrangement or order, the committee found happily supplantd by a logical and orderly arrangement into parts or divisions. The material alterations in the existing laws as made by the commissioners were reported in detail. In conclusion the commissioners reported as follows:

"It is also to be considered that the work must be printed and distributed before it can go into operation, and therefore that its pro- visions cannot be of force very long before the meeting of the next legislature. During the short period which must elapse after the pro- mulgation of the Code and before the meet- ing of the next, General Assembly, the merits of the work will to some extent be tested, its provisions thoroughly examined, its defects and omissions ascertained, and its advantages appreciated; and at the next session of the General Assembly such alterations may be made as are found necessary.

"The public necessities have long been re- quired and the public voice long demanded in this State, a codification and reduction to a simple and intelligible system of the hitherto confused and undigested mass of our statute laws. To discharge this duty, men deservedly high for their ability and fidelity to public trusts, have been appointed; those men, with a full sense of the responsibility incident to their office, have prepared and presented to the General Assembly, at the expense of great labor, a work which they deem (justly as your committee think) adequate to meet the public expectation and to satisfy the public necessities. A work thus prepared is entitled to the full confidence, and claims the most favorable consideration at the hands of the General Assembly.

"Influenced by these considerations, the committee is of the opinion that the present responsibility in the preparation of the Code should be left where the action of a prior legislature deposited it, and that the wisest course now to be pursued is to adopt the Code and order it to he printed for distribution among the citizens of the State, so that it may be deliberately examined and such changes only hereafter be proposed as are considered essential after the maturest reflec- tion."

The bill reported by the committee was passed and approved February 5, 1852, pro- viding for the adoption, printing and dis- tribution of the code. Copyright was to be taken in the name of the state, and 5000 copies were to be printed, "the paper, type, printing and binding to conform to the code of Virginia, in 1849." Under the authority conferred by the act the governor appointed Henry C. Semple, then a young member of the Montgomery bar, to prepare the head notes and index. The code was to become of force, with the exception of those expressly by law declared to become a force at a different period, 60 days after a proclamation from the governor that the book had been printed and the copies delivered to the secre- tary of state. The books were to be sold at $3.00 per volume. A supplementary act was passed and approved February 9, 1852, con- taining certain saving provisions with ref- erence to election precincts in the various counties, and providing for the insertion of certain general materials in the body of the work.

Judge Brickell, "Digest of Decisions of Alabama" (1874), vol. 2. p. viii, makes this comment in reference to the work of the commissioners :

"The codifiers felt themselves authorized to introduce statutes entirely new and un- tried here; to omit many old statutes; to engraft on the statute book the decisions of the Supreme Court, construing former stat- utes which they retained; to strike down the system of pleading and practice, the growth of fifty years; and substituted a new system, which, if we are to judge from the numerous decisions to which it has given rise, can scarcely be regarded as a model of simplicity. The law of evidence and the law of real property were materially changed. Their labors, entitled 'Code of Alabama,' was sub- mitted to the General Assembly at the session of 1851-2, and was adopted without being read in either house, going into operation on the 17th of January, 1853."

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History of Alabama and dictionary of Alabama biography, Volume I, Part 57

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869- Publication date: 1921 Publisher: Chicago, The S. J. Clarke publishing company Number of Pages: 756

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869-
Publication date: 1921
Publisher: Chicago, The S. J. Clarke publishing company
Number of Pages: 756