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 II pt 1 > Part 17
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GENERAL HISTORY.
It seems proper to set out the actual course of legislation that has brought the judicial system of the state where it now is. And first. as to justices of the peace.
It is a favorite remark of ex-Gov. Seay of Alabama. that the justice of the peace more deeply affects the fortunes and happiness of the people than all other judicial officers together. They are numbered by the thousands, and each one has his docket of civil and criminal causes, and these mount from a score or more a year into the hundreds, and in some of our cities many hundreds. The litigants are generally the poorer classes, and a judgment for or against one of them is relatively of immense consequence. Many is the poor devil who has received the blow in a justice's court that has sent him down hill, financially speaking, with small ability to get back.
Under the territorial government of Alabama justices of the peace were, appointed by the governor. The constitution adopted in 1519 pro- vided that a competent number of justices of the peace should be ap- pointed in and for each county, in such mode and for such term of office as the general assembly might direct. Their jurisdiction in civil cases
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was limited to causes in which the amount in controversy should not exceed $50, and right of appeal was given.
When the legislature came to give effect to this provision of the con- stitution, they furnished a curious illustration of the importance of the militia system in the early history of the commonwealth. It was pro- vided that there should be elected, by the qualified electors within the limits of each captain's company in the several counties of the state, two justices of the peace and one constable, the elections to be held by the commanding officer of each company and two freeholders or householders, as he might appoint. In case of a vacancy in the office of justice. the commanding officer was required to call his company together for the purpose of holding an election to fill the vacancy. As the militia then included, with a few exceptions. like judges. justices and ministers, the entire white male population of the state over the age of eighteen years, the electorate as established was quite broad enough to insure a substantially fair choice.
The oath of office, taken by a justice of the peace in those days, is a curiosity in itself, both for its length and its contents. It ran as follows:
"I, A. B., do solemnly swear that as a justice of the peace in the county of - -. in all things I will do equal right to the poor and to the rich, to the best of my judgment and according to the laws of the state. I will not privately nor openly, by myself or any other person, be of counsel in any quarrel or suit depending before me. The fines and amercements that shall be made and the forfeitures that shall be incurred before me, I will cause to be duly entered and will truly and faithfully account for and pay the same over to the proper officers required by law to receive the same. without concealment or delay. I will not willingly or wittingly take, either by myself or by any other person for me, any fee, gift, gratuity or reward whatsoever, for any matter or thing by me to be done by virtue of my office. except such fees as may be directed and limited by law. but that I will well and truly perform the duties of my said office. I will not delay any person of common right through favor, affection or partiality, or refuse to take recognizance of any com- plaint made before me, which by law comes under my jurisdiction. I will not direct or cause to be directed any warrant by me to be made to the parties, but will direct all such warrants to the sheriff or constable of the county, or other officers of the state, or to some other disinterested person. to do execution thereof. The sums of money received before me and paid into my hands for the benefit of others. I will well and truly account for and pay over, without concealment or delay: and. finally, in all things belonging to my office. during my continuance therein. I will faithfully, truly and justly, according to the best of my skill and judg- ment, do equal and impartial justice to all, so help me God."
The office of the justice of the peace administered on this high plane would give the justice himself a fame more enduring than brass.
The provisions relating to justices of the peace remained substantially the same until the great social and political revolution that was accom- plished by the war. The militia organization continued to be the root organization in the election of minor judicial officers. In one of the
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later provisions, to be found in the digest of 1843, there is a minor pro- vision that goes to show the prevalence, in Mobile, at least, of some epidemic disease in the summer season. It is there provided that any justice or constable who may remove from the captain's beat' for which he had been elected, and thereafter attempts to discharge any duty re- lating to his office, he should forfeit a penalty. An exception, however, was made in favor of officials of this kind in the city of Mobile, who should leave the city during the summer months for their health. By the constitution now in force in Alabama, that of 1575, it is provided, that there shall be elected, by the qualified electors of each precinct of the counties, not exceeding two justices of the peace. Such justices shall have jurisdiction in all civil cases wherein the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment. The right of appeal was guaranteed without prepayment of costs. In view of the enlarged suffrage and the danger of forcing upon a given community corrupt and incompetent men, the power was placed in the governor's hands to appoint one notary public for each election precinct in counties, and for each ward in cities of over five thousand inhabitants, who in addition to the powers of notary, shall have and exercise the same jurisdiction as justices of the peace within the precincts and wards for which they are respectively appointed.
The justice of the peace now exercises a very considerable power under the law, both in civil and criminal matters. It would not be right to question the character and integrity of so large a body of men, who more or less fairly represent the character and integrity of the community that selects them to discharge the duties of justices of the peace. Every lawyer has his favorite anecdote, probably an experience in his own practice, going to show the ignorance of the average justice-the justice has acted as an attorney in a cause he is hearing, or he has called him- self as a witness, or he has sentenced a defendant to the penitentiary or to be hanged. These constitute the frills of the system that may be laughed at or deplored, according to the mood of the observer. The real evil of the system, at present, is to be found in the one fact that a justice's. income depends on the fees assessed by him. It is too much to expect of human nature, taking it as it is generally found, that it will do justice impartially, when doing it partially nets the larger sum to him who administers the law. When the way is discovered of abolishing the fee system entirely in these inferior courts, the way will be opened to insure a fairer and more humane exercise of the powers now, by law, entrusted to these subordinate officials.
THR COUNTY COURTS.
The early law establishing county courts in this state came over from the territorial period. Under that law, the governor was empowered to appoint and commission five persons in every county, one of whom
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should be chief justice of the orphan's court. Court was to be held twice in each year. but not longer than six judicial days at each sitting. This court was given full power and authority to take the probate of wills. of conveyances, and to record the same; to issue letters testamentary and letters of administration. The justices of the county courts were further empowered to take cognizance of all actions of a civil nature, wherein the value of the matter in controversy did not exceed 81.000, excepting, however, real actions, actions of ejectment and trespass quore clausum fugit.
There is one provision common to the early statutes governing the county courts that has some historical interest. The justices of these courts were required to mark and lay out the bounds and rules of their respective prisons, not exceeding ten acres: and every prisoner, not com- mitted for treason or felony, on giving good security to keep within tlre said rules and bounds, had the right to walk within the prison bounds so designated for the preservation of his health, and if he kept continually within said bounds he was adjudged and admitted a prisoner in law. This apparent tenderness in the treatment of prisoners was not altogether consonant with the treatment they received on conviction, though the provision in question may have been designed more particularly for debtors who were required to give bail or go to prison. Relative to the punishments that were inflicted, and that are alluded to in the preceding sentence, it may be said that the whipping-post, pillory and branding irons were a part of the necessary outfit of every prison. Building jails and keeping prisoners were not at all to the taste of our ancestors. They preferred summary punishments when possible. There were were a large number of crimes punishable with death: murder, rape, man stealing, slave stealing, arson. robbery, burglary, forgery and counterfeiting. Minor offenses were punished by laying on the whip, the conventional thirty-nine lashes being administered as a rule. The horse-thief was fined, received thirty-nine lashes on his bare back. branded on the face or in the right hand with the letter T. and imprisoned for a term not exceed- ing twelve months. Manslaughter was in the territorial period punished with branding, the letter M being burned in the defendant's hand in open court.
The first marked change in the law governing the county courts was the act under which one judge of the county court, for each county in the state, was elected by joint vote of both houses of the general assem- bly. The county court was given the same jurisdiction with the same court during the territorial period. and had. besides, concurrent jurisdic- tion with the circuit court in all actions of debt, assumpsit, case, cove- nant, trespass and assault and battery. When the judge probated wills, granted letters of administration or appointed guardians, he sat as judge of "The orphan's court of said county." The method of appointment here
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provided for continued in force until a constitutional amendment was adopted in 1950. by which amendment the election of judges of probate was committed to the people of the several counties. The mode of elec- tion then decreed and the jurisdiction then given have not been changed in any essential particular up to the present time.
Chief Justice Stone, of the supreme court of Alabama, in a paper read before the state bar association, held at Huntsville, in 1889, took occa- sion in a luminous review of the history of English and American law, to point out some of the defects in legal administration in Alabama. In this address he specially emphasized the need of reform in the judge of probate's office. He, speaking with the authority that accompanies a longer term of judicial service than any man in the history of the state, appealed there in behalf of widows and orphans that their rights should be determined with less expense: that certain questions now cognizable in equity should be triable in this court, and other matters, at present reserved for the jurisdiction of circuit courts, should be assigned for determina- tion to the county courts. This reform, if ever inaugurated, would in effect be a reversion to the older system in the state, when the county court exercised a much more enlarged jurisdiction than it now does.
CIRCUIT COURT.
The constitution of 1819 provided that the state should be divided into convenient circuits, each circuit to contain not less than three nor more than six counties. These courts were given original jurisdiction in all matters civil and criminal within the state; but in civil cases only when the mat- ter or sum in controversy exceeded $50. The circuit judges were required to be elected on a joint ballot by the general assembly. In the beginning, the judges of the circuit courts were required to sit as a supreme court and hear and determine cases on appeal from the county and circuit courts. They were paid $1,750 each, per annum. The circuits in that early day were necessarily large. the counties commonly very sparsely settled, and in consequence there was developed, by the neces- sities of the situation, a distinct social type consequent on riding the circuit by lawyers and judges. The holding of a circuit court was the great semi-annual event in each county. There was assembled, in the little county capitol. the legal lights of almost every county in the cir- cuit, and oftentimes eminent practitioners from other circuits and even other states. The court room during the day was the scene of strenuous encounters over pleadings, replications. rebutters and sur-rebutters, for those were days when pleading was a fine art, and at night there were sturdy bouts with John Barleycorn and tests of skill at the game that was invented to amuse a king of France. Gambling was a common vice throughout the "southwest" at this time, and the traditions of the bar of that period seem to show a wide prevalence among the profession of the habit.
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The circuit judges continued to be appointed by the legislature until a constitutional amendment. adopted in 1550, changed the law and submitted the election directly to the people of the given circuit. At first they held office during good behavior, but might be impeached and might be removed by the governor on an address to that end by the general assembly.
When the circuit courts were first established they were given chan- cery jurisdiction, and they continued to exercise all the ordinary and extraordinary functions of chancery until 1839. In that year all the powers of the circuit court, as a chancery court, were withdrawn and vested in chancery courts to be holden in three chancery divisions and forty chancery districts. The chancellors were elected on joint ballot by the general assembly, and continued to be so elected until the year 1868, when a new constitution was adopted, by the provisions of which chan- cellors, like circuit judges, were elected by the people residing in the several divisions over which the individual chancellor was given juris- diction.
It is really a matter of astonishment that, in the more than fifty years that have intervened since the chancery courts were separately estab- lished, there have been so few changes in the forms and substance of chancery law in Alabama. There is a growing body of opinion, in the" state, that our legal machinery is too cumbrous and antiquated in com- parison with the more advanced systems of England and many of the American states. In the address of Judge Stone, already referred to, he boldly advocates such a change as would confer on one body of magis- tracy, composed of judges of co-equal original jurisdiction, the entire power and authority to hear and determine all controversies that arise between litigants. He further proposes to abolish the forms of actions as now classified. and substitute in their stead a uniform method of instituting suits, called a civil action.
There can be little doubt that we have here pointed out the direction the first great reform in Alabama judicial system will take. The petition will take the place of our bills in equity and of our various forms of complaint at law, and instead of a judge and a chancellor holding sepa- rate courts at different times, both bodies of law will be administered by the same tribunal.
THE SUPREME COURT.
The constitution of 1919. under which the state was admitted to the union, provided among other things that the judicial power should be vested in a supreme court, together with such inferior courts as might be constituted by the general assembly. The judges of the circuit court were required to serve as members of the supreme court, stated meet- ings being held at the seat of government to hear causes on appeal. The judges of the supreme court were for many years elected by the general assembly-until 1868, in fact-when the reconstruction constitution
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adopted that year brought in the very radical change in the appointment of having them elected at a general election by the people.
The first term of the supreme court was held at Cahaba, then the state capital, on the second Monday in May, 1820. There were present, Hons. C. C. Clay. Reuben Saffold, Henry Y. Webb and Richard Ellis. Hon. A. S. Lipscomb, the remaining circuit judge, was absent at this session. Hon. C. C. Clay was appointed chief justice. In 1821, a sixth circuit was created, of which Hon. Anderson Crenshaw was elected judge. Passing in hurried review the membership of the court from its foundation as thus indicated. the records show a large number of names familiar to the judicial history of the state. Some of these have left the impress of their thoughit and character upon the wider field of Amer- ican law. Judge Webb died in 1823 and was succeeded by Hon. Henry Minor, who was in his turn succeeded, as soon as the general assembly convened. by Hon. John Gayle. Chief Justice Clay resigned in 1823 and was succeeded in that office by Judge Lipscomb.
At the election held in 1825, the first regular election by the gen- eral assembly under the constitution, since the creation of the supreme court, the following circuit judges were elected: Hon. A. S. Lipscomb, Reuben Saffold. John Gayle, John White, John M. Taylor and Anderson Crenshaw. In 1828, a seventh circuit was established. of which Sion L. Perry was elected judge. In the same year, Judge Gayle resigned and Hon. Henry W. Collier was elected to succeed him.
In 1830, the court encountered an outburst of popular disapproval pro- voked by its strict enforcement of contracts for the payment of excessive interest, the statutes against usury having been repealed. The judges had to bear the brunt of the storm of indignation that swept over the state, though in honor there was no course open to them other than the one they followed. As a consequence of this outburst. the tenure of the judges was changed by constitutional amendment from one during good behavior to a term of six years. By the amendment the terms of the judges then sitting would come to an end in 1833. In 1832. the court was entirely reorganized and made a separate court, being made to consist of three judges, with terms of office for six years. Judges Lipscomb. Saf- fold and Taylor were elected. Judge Lipscomb again receiving the ap- pointment as chief justice. In 1834, Judge Taylor resigned and was suc- ceeded by Hon. Harry I. Thornton. In the latter part of the same year, Judge Lipscomb resigned and was succeeded by Hon. Henry Hitchcock, Judge Saffold being promoted to the post of chief justice. In 1836, Hon. A. F. Hopkins succeeded Judge Thornton. and in the same year. Judge Saffold resigned, being succeeded by Hon. Henry W. Collier, Judge Hitchcock becoming chief justice. In 1837, Judge Hitchcock resigned and was succeeded by Hon. Henry Goldthwaite, Judge Hopkins being advanced to the chief justiceship. In June of the same year Chief Justice
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Hopkins resigned. being succeeded by Hon. J. J Ormond, Judge Collier becoming chief justice.
In 1843, Judge Goldthwaite resigned and was succeeded by Hon. C. C. Clay. Judge Goldthwaite had resigned to become his party's candidate for congress in the Mobile district. After a contest of memorable vigor and dash, he suffered a defeat, and then became a candidate for his old seat on the bench. He defeated Judge Clay before the general assembly. He died of yellow fever in 1847, and was succeeded by Hon. Edward S. Dargan. Judge Ormond declined a re-election and was succeeded by Hon. William P. Chilton. In 1849 Judge Dargan succeeded Judge Collier as chief-justice, Hon. Silas Parsons taking the place of associate vacated by Dargan. Parsons was succeeded in 1851 by Hon. Daniel Coleman, who was in his turn succeeded by Hon. George Goldthwaite. In the same year, 1851, the number of judges was increased to five. Hons. David P. Ligon and John D. Phelan being the additional members. In 1862, Chief Justice Dargan resigned and was succeeded in that office by Judge Chilton, Hon. Lyman Gibbons being appointed associate justice. In 1853, the member- ship of the court was reduced by law to three, and Hon. Samuel F. Rice became the third member. In January, 1856, Judge Goldthwaite suc- ceeded Judge Chilton as chief justice, and Hon. A. J. Walker became an associate justice. Judge Goldthwaite resigned almost immediately, and was succeeded by Hon. George W. Stone. Judge Rice became chief-jus- tice. Judge Rice, resigning in January, 1859, was succeeded as chief- justice by Judge A. J. Walker, Hon. R. W. Walker receiving the appoint- ment thus vacated. The war wrought no change to speak of in the judi- cial fabric during the existence of actual hostilities. In. 1863, Judge R. W. Walker resigned and was succeeded by Hon. John D. Phelan. The leg- islature that convened at the close of the war elected, as members of the supreme court, Hons. A. J. Walker, William Byrd and Thomas J. Judge.
By the "reconstruction" constitution of 1868 the election of judges was committed to the people, and on an election held, Hons. E. W. Peck, Thomas M. Peters and B. F. Saffold were returned as judges of the supreme court. In 1873, Judge Peck resigned. Judge Peters became chief justice, and Hon. R. C. Brickell was appointed to fill the vacancy. At the general election in 1874. Judge Brickell was elected chief justice, and Hons. Thomas J. Judge and Amos R. Manning, associate justices. In March, 1876. Judge Judge died and was succeded by Hon. George W. Stone. In 1880, Judge Manning died and was succeeded by Hon. Henderson M. Somerville. On October 25th. 1854. Judge Brickell resigned. Judge Stone becoming chief justice, and Hon. David Clopton was appointed associate. In 1889, the number of judges was increased to four, and Hon. Thomas N. Mcclellan, then serving as attorney general. was appointed to the new place. In July. 1890. Judge Somerville resigned to accept a post un- der the general government and Hon. Thomas W. Coleman was appointed to succeed him. In February, 1991. the number of judges was once more
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raised to five, and Richard W. Walker was appointed to the new judge- ship. At the August election. 1892, the following judges were elected : Chief justice, George W. Stone: associate justices. Thomas W. Coleman, Thomas N. McClellan, J. B. Head and Jonathan Haralson. The term of office for judges of the supreme court remains fixed at six years, and the salary is $3,600 per annum. Elections are still by the people, and there seems to be no disposition to revert to the old method of election by the general assembly. The writer once asked a justice of the supreme court whether in his experience there had ever been any decision rendered by the court that had any "politics" in it. He replied he could not recall any decision whatever that had not been decided by what seemed to the bench the law of the case. He went on to say that a limited term and election by the people had one effect. he thought, on the judges themselves; they were more industrious. Whatever it may be attributed to. there can be no doubt the Alabama supreme court in recent years has been a very hard working body, and since, according to a familiar doctrine. democracy never gives back power once assumed. and as we may not anticipate any reversion to a different method of appointment of judges, it is well to have the great. if not excessive, labors of our supreme bench as a tribute, in part, at least, to the popular choice of its members.
Taking up some of the curious, if not very important, facts touching the composition of the supreme bench, note may be made of the nativity of the chief-justices. Clay, Hopkins, Collier and Stone were born in Virginia: Lipscomb and Rice in South Carolina; Saffold in Georgia; Hitchcock in Vermont; Dargan in North Carolina; Chilton in Kentucky; Goldthwaite in New Hampshire; Walker and Peters in Tennessee; Peck in New York, and Brickell in Alabama. Brickell is the only chief justice who was a native of Alabama.
The following judges of the supreme court were, at one time or another, judges of circuit courts: Henry W. Collier, Daniel Coleman, E. S. Dargan, John D. Phelan, George W. Stone, George. Goldthwaite, Lyman Gibbons. B. F. Saffold and J. B. Head. Of the present court. Judge Coleman was a chancellor when promoted, and Judge Haralson, presiding judge of the city court of Selma.
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