USA > Alabama > Memorial record of Alabama. A concise account of the state's political, military, professional and industrial progress, together with the personal memoirs of many of its people. Volume I > Part 7
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MEMORIAL RECORD OF ALABAMA.
were suspended, and so general was the distress that Governor Clay was forced to call the general assembly together in May, in special session, in order that some kind of relief might be provided. At that time a loan of $5,000,000 on state bonds was authorized, to be divided among the state bank and its branches, the amount to be issued in bank notes for circu- lation. From this time onward the affairs of the bank and its branches went from bad to worse; the interest on the state debt was paid by pur- chases of cotton, which was resold at a heavy loss; and worst of all, the public mind was alarmed by rumors of fraud and peculation in the bank's management. In 1842 it was found that the public debt of the state, cre- ated through the bank and its branches, amounted to nearly $14,000,000, against which the state held assets of the bank, to which alone it could look for indemnity. The cautious and far-sighted Fitzpatrick was now governor, and he called to his aid two of the great lawyers of the state, Hon. Henry Goldthwaite and John A. Campbell, Esq., in the hope of formulating with their aid a definite policy through which the bank could be put into liquidation, and the state extricated, as far as possible, from its difficulties. It was agreed that Mr. Campbell should come to the legislature in order that he might prepare appropriate legislation to accomplish the end in view. On the 19th December, 1842, as chairman of the committee on the state bank and its branches, he made a compre- hensive report, which can be found in the journals, in which the plan of liquidation to be followed was fully set forth. By this measure the branch banks at Mobile, Montgomery, Huntsville and Decatur were placed in liquidation, a process which in the following year was applied to the mother bank at Tuscaloosa. At the session of 1845 the legislature trans- ferred the whole assets of the bank to three commissioners-F. S. Lyon of Marengo, C. C. Clay, Sr., of Madison, and William Cooper of Franklin- who were clothed with high and delicate powers in order that they might efficiently execute the great trust cast upon them. At the session of 1847 they made to the legislature a satisfactory report of their acts and doings, and at that time Mr. Lyon was constituted sole commissioner and trustee, in order that he might the more expeditiously complete the entire trans- action In November, 1853, Mr. Lyon made a report to the legislature, in which was set forth the history of his wise and judicious management up to that time. That report was referred to a joint select committee, from whose report, signed by Mr. Jemison, on the part of the senate, and by Mr. Bell, on the part of the house-the following extract is taken :
Our bonded debt when the banks were placed in liquidation,
as will be seen from the accompanying tabular statement,
was.
Bearing an annual interest of. $9,232,555.55
472,757.77
Which debt is now reduced to
Bearing an annual interest of. 3,584,666.67
178,573.33
The entire circulation of the banks outstanding 1st Novem- ber, 1847, was .. 457,177.00
Which is now reduced to. 290.237.00
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POLITICAL HISTORY OF THE STATE,
During the process of winding up the banks, the outstanding circula- tion has not been redeemed in specie. but the fact of its having been received in payment of taxes and other public dues, and the general con- fidence felt in the skillful management of the commissioner in closing up the affairs of the banks, and in the good faith of the state. has caused the bills to pass at or near par, and they are at this time, for all ordinary business purposes, quite equal to the notes of the specie paying banks of the state.
While the community has sustained no loss by their circulation, the state has derived very great and important advantages therefrom. The most sanguine friends of the system adopted and pursued in winding up and closing the affairs of the banks had not, in its commencement, ven- tured to predict or hope so favorable a result as has been witnessed.
As the above statement shows, the original liability of the state was greatly reduced through Mr. Lyon's exceptionally wise administration of the assets of the banks which passed into his hands, and yet in the end the loss to the state through this unfortunate venture was large, and that loss was the beginning and the basis of her public debt.
During the session of 1847 the finances of the state were severed from the bank and restored to normal conditions through a new revenue bill, which provided for the raising of a fund sufficient to pay the expenses of the state government, the interest upon the trust funds (16th section and university) and interest on the state bonds, leaving the remaining assets of the bank to be used for the redemption of its outstanding indebtedness. The state fully admitted its liability for the 16th section fund, and provided for the payment of interest upon it annually to the trustees of the proper townships for school purposes.
In spite, however, of some financial disaster, the state, from the time of its organization, steadily advanced in prosperity, and the legislature was ever ready to further the good work by conferring charters upon corpo- rate enterprise. As early as 1818 the territorial legislature incoprorated the St. Stephens Steamboat company; in 1820 was incorpoarted the Steamboat company of Alabama, and in 1821 the Mobile Steamboat com- pany. In 1832 the first cotton factory-the Bell factory in Madison-was incorporated, and about the same time was completed the first railroad constructed in the state, that from Tuscumbia to Decatur, a distance of about forty-four miles. In 1839 the penitentiary system was adopted, and the buildings ordered to be erected at Wetumpka, which, however, were not ready for use until 1841. Prior to 1840 the members of the popular branch of congress had always been elected by districts. As the whigs, under the system, were able to elect two out of the five represent- atives, the democrats determined to deprive their opponents of this advantage by the adoption of the "general ticket system," by means of which they could secure the entire delegation by virtue of their majority in the state at large. At the session of 1840 this measure was carried after a bitter partisan struggle, but it was repealed in the next year. During the period between 1850 and 1860 many important railroad enter-
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MEMORIAL RECORD OF ALABAMA.
prises were projected and incorporated, among which may be mentioned the Mobile & Ohio; the Memphs & Charleston; the Selma & Rome; the Alabama & Mississippi rivers (from Selma westward) ; the Montgomery & Pensacola, the Mobile & Girard, and the Alabama & Chattanooga. In 1860 the asylum for the deaf and dumb and blind was put in operation at Talladega, and in 1861 the State Insane asylum was opened at Tuscaloosa.
The first constitution provided for the revising, digesting and publica- tion of the statutes within five years after its adoption, and once every ten years thereafter. An act was, therefore, passed, March 28th, 1821, which provided for the election of a suitable person to digest and pub- lish the statutes. Hon. Harry Toulmin, who was elected, published, in 1823, "Laws of Alabama," which had been reported to and approved by the general assembly. In 1831, in obedience to the constitutional mandate, John G. Aiken, Esq., was appointed to digest the statutes; and at the session of the general assembly of 1832-33 he reported a digest which was adopted and published in 1833. In 1836 a second edition of this work appeared with a supplement containing the public acts passed in 1833, '34 and'35. In 1841, Hon. C. C. Clay was appointed to digest the law, and the result of hs work was reported to the general assembly of 1842-43, and published in 1843. On the 5th February, 1850, the general assembly, by an act, entitled, "An act providing for a code of the statutes of Ala bama, and for a preparation of a code of practice in the courts of this state, " appointed John J. Ormond, George Goldthwaite, and John Erwin, "to arrange and codify the public statute laws of this state." Mr. Erwin declining the appointment, Hon. A. P. Bagby was appointed in his place. The labors of the commission resulted in what was entitled the "Code of Alabama," which, after being adopted by the general assembly at the session of 1851-52, went into operation on the 17th January, 1853. By an act approved February 21st, 1860, the appointment of a commissioner to prepare a revised code of Alabama was authorized, but by an act approved 9th of December, 1861, the work was suspended until after the end of the war. In the spring of 1866, Hon. A. J. Walker succeeded Hon. Turner Reavis, resigned, and the result of his work was the revised code of 1867, which in that year was published by legislative authority. Since then, at intervals of ten years, the work of revision has been performed according to law.
Before passing from this branch of the subject, mention should be made of the fact that in 1845 the questions of removing the capital of the state, and of substituting biennial in lieu of annual sessions of the general assembly, were submitted to the people, and both answered in the' affirm- ative. After an animated contest Montgomery was chosen by the legis- lature as the future capital, and in the fall of 1847 the archives were removed to that place just prior to the meeting of the legislature in the new capitol on the 6th of December. Two years later, while the houses
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POLITICAL HISTORY OF THE STATE.
were in session, the capitol was found to be on fire, and was destroyed, without, however, any very serious loss of public records.
THE JUDICIAL POWER.
By the fifth article of the first constitution the judicial power of the state was vested "in one supreme court, circuit courts to be held in each county in the state, and such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time direct, ordain, and establish." Art. 5, section 1. Although appellate jurisdiction only was conferred on the supreme court, ample power to exercise a general superintendence and control over inferior jurisdictions was conferred with the right to issue the necessary orig- inal and remedial writs. Art. 5, section 2. The supreme court was to be held at the seat of government, but if dangers from disease, or a public enemy, made it necessary, it could adjourn to some other place. At the outset no separate staff of judges was provided for the supreme court; the judges of the circuit court were vested with the powers and required to perform the duties of the supreme court, until the general assembly should otherwise prescribe. Art. 5, section 3. The judges of the several courts were to be elected by the joint vote of the two houses of legis- lature, and were to hold office during good behavior. Art. 5, sections 12, 13. The state was originally divided into five judicial circuits, to which were elected as many circuit judges: Abner S. Lipscomb to the first; Reuben Saffold to the second; Henry Y. Webb to the third; Richard Ellis to the fourth, and Clement C. Clay to the fifth. The first term of the supreme court, held under the constitution, began at Cahawba, then the seat of government, on the second Monday of May, 1820. All of the circuit judges, except Hon. A. S. Lipscomb, were present, and the young- est of the number, Hon. C. C. Clay, was appointed the first chief justice. In 1821 a sixth circuit was added, to which Andrew Crenshaw was elected; and when, in 1823, a vacancy occurred in the third circuit through the death of Judge Webb, Henry Minor was appointed until the meeting of the general assembly, when Jolin Gayle was elected to the third, and Henry Minor to fill the vacancy in the fifth circuit caused by the resigna- tion of Judge Clay. At the election held in 1825 for circuit judges, pursu- ant to the provisions of the third and thirteenth sections of article fifth of the constitution, A. S. Lipscomb was elected judge of the first circuit, Reuben Saffold of the second, John Gayle of the third, John White of the fourth, John M. Taylor of the fifth, and Andrew Crenshaw of the sixth. At this session, the seat of government having been changed from Cahawba to Tuscaloosa, an act was passed requiring the supreme court to be held there on the first Mondays of July and January of each year. Upon the resignation of Judge Clay in 1823, Judge Lipscomb was made the second chief justice, an honor which was again bestowed upon him upon the meeting of the court, after the election in 1825. In January,
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MEMORIAL RECORD OF ALABAMA.
1828, a seventh circuit was created. to which Sion L. Perry was elected judge, and in the same year, upon the resignation of Judge Gayle, Henry W. Collier was elected in his stead as judge of the third circuit. In 1830 the constitution was amended, and the tenure of office of the judges fixed at six years-it being provided that the judges then in office should hold until the meeting of the general assembly in 1833, when a new election was to take place. In 1832, before the new election could be held, an act was passed which provided a distinct staff of three judges for the supreme court, the three to be elected by a joint vote of the two houses for the term of six years. The three judges elected under the new stat- ute were Lipscomb, Saffold and Taylor, the first named being continued as chief justice. When at the January term, 1834, Judge Taylor resigned, he was succeeded by Harry I. Thornton; and when, in the next year, Judge Lipscomb resigned, Judge Saffold became the third chief justice, and Henry Hitchcock was appointed to the vacancy. During the January term, 1836, Judge Thornton was succeeded by A. F. Hopkins, and at the June term, upon the resignation of Judge Saffold, Judge Hitchcock became the fourth chief justice, and Henry W. Collier succeeded to the vacancy. Upon the resignation of Judge Hitchcock, Judge Hopkins became the fifth chief justice, at the January term, 1837, and Henry Goldthwaite was elected to the vacancy. Upon the resignation of Judge Hopkins, Judge Collier became the sixth chief justice, at the June term, 1837, and John J. Ormond was elected to the vacancy. Thus constituted, the court remained until the winter of 1847, with the exception of the June term, 1843, when Judge Goldthwaite, who resigned to become a candidate for congress, was succeeded by C. C. Clay. After Judge Goldthwaite's defeat for congress, he was elected by the legislature to the supreme bench, where he reamined down to his death, in 1847. At the election, during the session of 1847-48, Edmund S. Dargan was elected to the vacancy caused by Judge Goldthwaite's death, and William P. Chilton was elected to succeeed Judge Ormond, who declined a re-election. Upon the resignation of Judge Collier, Judge Dargan, at the June term, 1849, became the seventh chief justice, and Silas Parsons was appointed to the vacancy, an appointment which was soon confirmed by the legisla- ture. Upon his resignation in 1851, George Goldthwaite was elected to the vacancy. When at the session of 1851-52 the court was increased to five members, David G. Ligon and John D. Phelan were elected as the additional judges. Upon the resignation of Judge Dargan, 1852, Judge Chilton became the eighth chief justice, and Lyman Gibbons succeeded to the vacancy by executive appointment. At the session of 1853-54 the legislature repealed the statute increasing the number of judges, and elected Samuel F. Rice as the third judge. Upon the resignation of Judge Chilton in December, 1855, Judge Goldthwaite became the ninth chief justice, and A. J. Walker succeeded to the vacancy. Upon the resigna- tion of Judge Goldthwaite shortly thereafter, Judge Rice became the tenth
.
65
POLITICAL HISTORY OF THE STATE.
chief justice, and George W. Stone succeeded to the vacancy. Upon the resignation of Judge Rice in 1859, Judge A. J. Walker became the elev- enth chief justice, and R. W. Walker was appointed to the vacancy. His election by the legislature at the session of 1859-60 was the last before the war began.
The first volume of Alabama reports, embracing the decisions from May, 1820, to July. 1826, although published by Henry Minor in 1829, under the title, "Alabama Reports," is known to the profession as "Minor's Reports." George N. Stewart, who succeeded Minor as reporter, in 1830, published his first volume under the title of "Stewart's Reports," embrac- ing the decisions made in 1827-28. In 1832 he published a second volume, embracing the decisions up to and including the January term, 1830; and in 1833 a third volume, bringing the decisions to the close of the January term, 1831. The decisions from the January term, 1831, to the January term, 1834, were published in five volumes, under the title of "Stewart and Porter," by Benjamin F. Porter, who was appointed upon Mr. Stew- -- art's resignation. The decisions from June term, 1834, to January term, 1840, were published by Judge Porter in nine volumes, under the title of "Porter's Reports." In 1840 the legislature imposed the duty of report- ing on the judges themselv. s, by whom the decisions were reported until June term, 1847, in eleven volumes, entitled, "Alabama Reports. New Series." After the re-establishment of the office of reporter. John J. Ormond was appointed at January term, 1848, and he continued the pub- lication of the new series until he was succeeded by N. W. Cocke, who continued the work until 1851, when he resigned. John W. Shepherd was then appointed, who continued in office until after the war, publish- ing during that period twenty-two volumes.
In 1839 separate courts of chancery were established, and under the original statute the state was divided into two divisions, to each of which a chancellor was assigned The divisions were sub-divided into chancery districts, each of which embraced a group of counties. As the chancery business of the state has expanded the number of chancellors has been increased in the proper proportion.
SECESSION AND CIVIL WAR.
Secession and the Civil war which followed it mark the first great turning point in the political and industrial history of Alabama. Through the results of the war -the state has been emancipated from a system which sacrificed all other interests to that of agriculture. Under the new conditions which now exist Alabama has become one of the great mineral producing states of the union, and as such she is now entering upon a career of almost ur exampled prosperity. In the train of political events which led up to the Civil war Alabama occupies a conspicuous place, not only by reason of the fact that she was one of the most power- ful of the slave-owning states, but by reason of the further fact that her
5
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MEMORIAL RECORD OF ALABAMA.
central position designated her capital as the most suitable place for the organization of the Confederate government.
The only federal systems with whose internal organizations the build- ers of our federal republic were really familiar, and whose histories had any practical effect upon their work, were those which had grown up between the Low-Dutch communities at the mouth of the Rhine, and between the High-Dutch communities in the mountains of Switzerland, and upon the plains of Germany. Down to the making of the second constitution of the United States, the federation of Swiss cantons, the united provinces of the Netherlands, and the German confederation, really represented the total advance which the modern world had made in the structure of federal governments. Such advance was embodied in the idea of a federal league made up of a union of states, cities or districts- representatives from which composed a single federal assembly whose supreme power could be brought to bear not upon individual citizens, but only on cities or states as such. The fundamental principle upon which all such fabrics rested was the requisition system, unuer which the fed- eral head was simply endowed with the power to make requisitions for men and money upon the states or cities composing the league for federal purposes; while the states alone, in their corporate capacity, possessed the power to execute and enforce them. The first advance made by the English colonies in America in the path of federal union ended with the making of the first constitution of the United States, embodied in what is known as the articles of confederation. Up to that point nothing new had been achieved; the fruit of the first effort was simply a league upon the old plan with the federal power vested in a single assembly which could only deal through the requisition system with the states as states. Federalism, which as a system of government already stood low enough in the estimation of mankind, was put in no better plight by the first American experiment. Not until the making of the second constitution of the United States was any real effort ever made to adapt the federal idea to the union of states, in such a manner as to create a self-executing and self-sustaining fabric broad enough and strong enough to maintain the idea of nationality as against the disintegrating force of the provin- cial spirit. The radical difficulty which made the first constitution worth- less grew out of the inherent weakness of the requisition system, a system upon which every other federal commonwealth had rested that had ever existed down to that time. In the effort to depart from the ancient idea of a federal league, in the effort to create a new tpye of federalism, which would prove adequate to the wants of the new nationality, America gave birth to a novel and irresistible idea,, what the Germans would call a path-breaking idea. This new conception contemplated a system of fed- eral government which should act not on the states as states, but directly upon individuals, through an independent system of self-executing federal machinery. The incorporation of this new principle into the present
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POLITICAL HISTORY OF THE STATE.
constitution of the United States made it something very different from a league, something very different from any federal system that had ever preceded it. As Mr. Bryce has well expressed it: "Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call the states. It is itself a commonwealth as well as a union of commonwealths, because it claims directly the obedience of every citizen and acts immediately upon him through its courts and executive officers." As soon as it was settled that the new idea was to be made the premise upon which the work of the convention of 1787 was to proceed, the builders of the more perfect union were forced to give to it a completely organized constitution, "with the usual branches, legislative, executive and judicial; with the direct power of taxation, and the other usual powers of a government; with its army, its navy, its civil service, and all the usual apparatus of a government, all bearing directly upon every citizen of the union without any reference to the governments of the several states." Prior to the invention of this new conception of federalism America had also given birth to the new idea of constitutional limitations upon legislative power, a principle with which the old world was not familiar. The application of that principle to the new federal system drew after it as a necessary consequence the creation of the supreme court of the United States, an institution which has no prototype in history, the first and only judicial tribunal which ever possessed the power to pass upon the validity of a national law. In the new federal system thus built up there was left but one great hiatus to break its theoretical perfection. Although the fundamental notion upon which the new fabric rested was that it was to operate directly upon the individual citizen, the fact remained that it had no citizens. The obvious reason of this grave omission was that at the time of the adoption of the present constitution the sense of nationality had not sufficiently developed to permit the statement of the ultimate and inevitable conclu- sion, that every citizen of the union is primarily a citizen of the United States as such, and not by indirection, by virtue of the fact that he is a citi- zen of one of the states which compose them. Not until after the end of the Civil war was this principle, which completed the logical symmetry of the constitution, embodied in the fourteenth amendment. It is therefore evident that the new conception of nationality to which the present con- stitution gave birth was not, at the time of its adoption, a fully developed conception-it was nothing more than an imperfect aspiration which had to mature and ripen slowly in the light of time and experience. Among all the English speaking peoples new political ideas have ever developed slowly. To this rule the growth of the new idea of nationality to which our federal republic has given birth constitutes no exception. In this simple historical fact can be found the key which unlocks all the inys- teries of American politics. The making of the present constitution drew the line between two classes of men whose differences. in a diminished
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