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 18
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The following judges of the supreme court also served terms as gov- ernor of the state: Clement Comer Clay (a United States senator, also). John Gayle and Henry W. Collier. Of the circuit judges, those who became governor were. Joshua L. Martin, Andrew B. Moore, John Gill Shorter, David P. Lewis and William H. Smith. One chief justice, Lipscomb, became chief justice of another state supreme court, that of Texas.
It remains to be added, with respect to the general history of the high- est court, that the retention of separate courts of law and equity, and the common law system of pleading in a large measure, has given the deci- sions of the court, a character and standing of the first rank among other courts. There has been manifest a conservatism of spirit. a dispo-
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sition to wait upon an orderly and judicious development of law, rather than by hasty changes to impair the general fabric. The decisions of the courts of last resort in New York and Massachusetts have been, per- haps, more generally followed by the Alabama judges than the decisions of any other states. when anthority is sought on which to rest a decision. The court is now marked. if by any special characteristics, by great and deserved sternness toward homicides, a fixed determination to stamp out fraud wherever dscovered, and holding directors of corporations to a strict accountability, at the same time that prejudice against corporation s themselves is in no wise indulged in. The supreme court reports of the state, now numbering more than a hundred, have long enjoyed an estab- lished rank among the reports of the union. The most competent judges, the Albany Law Journal. for example, give them a place among the five or six best series of reports in the union. .
Of the fifteen chief justices and forty-one associate justices the state has had since its foundation, it would be impossible here to discuss with any detail. By a consensus of opinion among the bar, the history of the court is marked by the periods when it was presided over respectively by Lipscomb, Collier, Walker, Brickell and Stone. It fell to Lipscomb's lot to share heavily in shaping the early jurisprudence of the state. He was for fifteen years on the supreme bench and for eleven years as chief justice. His opinions. to be found in ten volumes from Minor to first Porter, felt the influence not only of his own great good sense and skill in the law, but that of several other notably able judges-like Judge Saffold, for instance. It was Judge Brickell's fortune to come forward on the bench at a time when much litigation growing out of the war was being settled. and when, besides. much new legislation, rendered neces- sary by the changed conditions of the body politic. had to be construed. He brought to the discharge of his duties extraordinary gifts of mind, natural and acquired. He was a deep student. he had a memory with a grip like death and he was master of a full but accurate style.
The present chief justice, George W. Stone, will doubtless live in his- tory as the most impressive figure in our judicial annals. In the first place, he has been on the bench more than a quarter of a century, and has an almost. if not altogether. unprecedented record of more than 2,100 decided cases. Judge Stone is a great and just judge. He has the cour- age.at all times to follow where his duty indicates the way, and his fear- lessness has been of inestimable worth in arming and equipping his deep knowledge of the law. He writes with singular clearness and force, and his skill as a controversialist has tempted him often to enter the field of political disputation. He has just been re-elected chief-justice. Born in 1811, he has entered upon his eighty-second year. and bids fair to more than rival the aged vigor of the great chancellors and judges of England, and flouts by his activity the wisdom of a provision of the carly law of
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Alabama, that made a man over the age of seventy ineligible to judicial honors.
The two most picturesque figures among the chief justices were Dar- gan and Rice. Judge Dargan was a man about whom anecdotes were told, whose character served as a very good peg to hang anecdotes on. One of an inspiring kind is told of his immigration from North Carolina. He walked from North Carolina to Alabama in 1829. As he was ferried across the last stream that would divide him from his native state, the ferryman laughed at his unpromising looks and his venturesomeness. Dargan replied, with some warmth. "You will yet see me chief-justice of Alabama " Everybody in Alabama has heard the story of his going off on the circuit with a lot of shirts and returning home to amaze his wife, and be amazed himself. to find he had put his shirts on one after the other until he was then wearing seven of those garments. Another story, preserved by Mr. Brewer, has a coarse savor about it, but it un- doubtedly, whether true or not, gives the idea of wise cunning that many believed was behind Dargan's affectation of sloth and drowsiness joined to a biting humor. The story is. he was canvassing Washington county along with the whig candidate for congress, William D. Dunn, they being rival candidates. At one place, when the speaking was over, Col. Prince, the wealthiest man in the vicinity, walked toward his residence with Mr. Dunn, who was to be his guest. "You are going to be beaten," said Prince. "How's that?" asked Dunn, "didn't you write me that I was the strongest man in the district, and haven't we a majoirty in it?" "I know that," said Prince, looking furtively around, "but here you are walking off to dinner with me, the richest man in the county, and there sits Dargan in that crowd of one-gallows fellows, picking the ticks off his legs." It would be unfair to the memory of Judge Dargan not to say, in spite of his eccentricities. he played a great role in Alabama his- tory, as state senator. as circuit and supreme court judge and as con- gressman.
Judge Samuel Farrow Rice was as unfortunate in politics as Dargan was fortunate. He was four times beaten for congress. The first time he ran was in 1845, when he was a candidate against Gen. Felix McCon- nell. McConnell had begun life as a saddler, but drifted into law and from law into politics. He had, in 1-43, as the regular democratic nomi- nee, defeated Hon. William P. Chilton. In 1845, Rice captured the regu- lar nomination at the hands of the convention, and McConnell came out as an independent. The contest is perhaps the most memorable sin- gle contest of the kind in the state's history. It was a good match. Both alike were bold, quick, witty, and with a fund of anecdote and langauge suited to the political atmosphere of the time. The struggle is almost a tradition. however. We have rescued from an old newspaper a part of one of McConnell's speches that will give some idea of the coarse vivacity with which he attacked Judge Rice and defended himself. McConnell was
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addicted to the use of whisky, and in his speech he declared he was "a plain, flat-footed, venison-backed. unsophisticated loco-foco. If they did not choose to re-elect him because he took his glass of grog like an inde- pendent citizen. they might go to h-ll and he would go to making harn- ess; that he didn't care a curse. only that he didn't like to be cork- screwed out of congress by the intriguing of your moccasin-footed nomi- nating convention." One of the stories most commonly told to illustrate Judge Rice's aptness in reply, relates to his declaration on the ove of the war that the Yankees woudn't fight. didn't mean to fight. "We can whip em with pop guns." After the war he was making a stump speech, when some one called out from the audience, hoping to confound him, "Aren't you the man who said we could whip the Yankees with pop guns?" "Yes; I am the man," "Well, we didn't, did we?" "No. the rascals wouldn't fight us that way." This story is evidently a congener of the corn-stalks of Gov. Fletcher of Virginia, but if Judge Rice did not say what popular tradition credits him with saying, everybody who knew him knows he was smart enough to have said it.
The writer remembers hearing him tell once how he reproached a minister who was unwilling to let him back into the church on account of certain breaches of religious duties, breaches that the judge confessed the truth of. "But. I don't understand," said the judge. "I thought churches were for the cure of souls, hospitals. so to speak, for the treat- ment of those who have done wrong. I need a hospital now worse than ever, and you shut the door in my face."
Judge Rice was a man of rare courtesy of manner, the rarer that his manners grew out of great gentleness of disposition and unaffected sim- plicity of heart. It adds to the chameleon-like changefulness of the im- pressions he made to note that he was an advocate of consummate adroit- ness, and it was a poor case. indeed, where he could not strike home upon the jury a sense of its justice.
Passing allusion ought to be made to a few of the associate justices of the supreme court. Men like Judges Ormond and Goldthwaite did not shine by a light reflected from their chiefs on the bench. Judge Ormond was for ten years an associate justice, and his opinions have taken high rank for the solidity of their learning. their strong logic and the precis- ion of their style. Judge Henry Goldthwaite has left a memory behind him of almost phenomenal gifts as a jurist. His colleague, Chief Justice Collier, said of him, "to call him an able jurist would convey a most im- perfect idea of his character and his merits. He was not only a profound lawyer, but he was a man of extensive general attainments: distinguished for quickness of perception, bold and vigorous thought, and long, continued mental application.
It would be hard to choose among the many distinguished associate justices of the period since the war. One of these, Judge Somerville, left an established reputation as a jurist, when he removed to New York, in
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1890, to take a place as a member of the board of customs appraisers. He left in particular, one piece of judicial work, with which his name will doubtless be long connected. His opinion in Parsons vs. the States (eighty-first Alabama, 577) has done much to shake the authority of McNaghten's case, and so has laid open the way to a striking modifica- tion of the old doctrine of criminal responsibility in the insane. Of the present court. Judges Mcclellan and Head, though both as yet young men, have displayed uncommon ability as jurists. while Judges Coleman and Haralson are merely adding to reputations, already won in lower courts, of being sound and safe judges. It was no uncommon provision of the early statutes of Alabama that the circuit court of a particular county should be held at the home of some citizen of the county. There, seated on the rude log porch or gathered at a convenient spot in the yard, the judge, attorneys and clients and juries administered one of the most venerable systems of law in the world. In Washington county. court was held for many years under a large oak at the county site, the juries retiring to the woods to consider their verdicts, while in Marengo, the first circuit court was held in a vacant blacksmith shop. In the shop of the blacksmith, the judge took his place by the furnace, the lawyers pounded the anvil, while the jurors doubled their legs on logs that had been piled along the side of the room. In Conecuh county there was no jail, and prisoners were confined at Claiborne. They were brought over during court and kept under guard.
It is a far cry from that time to the present, with its multiplied courts, its jails, its numerous bar, and its stately buildings in which jus- tice is administered. Nevertheless, rude as were the surroundings of the courts in those early days, we should be wrong to conclude the bar was not an able one. Alabama was settled in the main by a high class of immigrants. It began to attract immigration in a wonderful way, on account of rumors as to the immense wealth of the country. Nile's Reg- ister, speaking of that period, had to say of Alabama, "There is probably no portion of the world, of similar extent, which can exhibit such rapid increase of population, produced by the voluntary immigration of enter- prising individuals." A correspondent of the Portland Advertiser had mention to make. some years later, of the great number of immigrants he had passed on his way. "It would seem as if North and South Caro- lina were pouring forth their population in swarms. Perhaps, I have gone by. in the Creek nation. over 3,000 persons, all emigrating, includ- ing negroes, of course. The fires of their encampments made the woods blaze in all directions."
The legislature of 1820, the second legislature held under the consti- tution, consisted according to Niles, of one native Alabamaian, one Penn- sylvanian, two Marylanders, two Tennesseeans, seven North Carolinians. eight Georgians, thirteen South Carolinians and eighteen Virginians. These facts indicate how broad and cosmopolitan was the character of
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the men who settled Alabama, and names like Lipscomb, Hopkins, Israel Pickens, William R. King. John Gayle and Dixon H. Lewis, to mention the barest few, show what 'a high order of ability was represented among the numbers that poured into the new regions of Alabama. The lawyers began to assert themselves from the first in the infant state. To tell their history in detail would be to recite the main facts in the history of the commonwealth. We should find them not only pushing for honors at the bar, but in the field of politics as well; not only seeking self- advancement, but prompt at their country's call to take up arms in every conflict in which the state has been engaged, returning, when perchance they did return, to resume the active labors of a peaceful life, leading and encouraging in all endeavors to promote the prosperity and happi- ness of the people.
If we should start with the decade in which nature began to show her power and take from earth the great lawyers who presided over the early destiny of Alabama; if we should then come down. decade by decade, noting the life work of the lawyers who within those periods had gone the way of all the earth, we could but recognize and feel the noble part they have played in our history.
Of those who died between 1840 and 1850, we might call attention to Henry Goldthwaite of Mobile, the brilliant lawyer and able jurist, who made his way by virtue of ability alone: Dixon H. Lewis of Lowndes, the giant in body and giant in intellect-legislator, congressman. senator ; James W. McClung of Madison. the drinker, the duellist. but the dash- ing orator and bold defender of the right as he saw it: and Reuben Saffold of Dallas, the accomplished gentleman and scholar, and judge for many years of our highest court.
In the decade from 1850 to 1860. we should note Arthur P. Bagby, member of the legislature from Monroe at the age of twenty-three, speaker of the house at twenty-five, governor at forty-one. United States senator at forty-three, and then minister to Russia: James G. Birney, the. capti- vating young statesman and then the hated abolitionist. and twice the candidate of the republican party for the presidency; Franklin W. Bowdon, of Talladega, who has been pronounced the most gifted orator the state has produced; Henry W. Collier. of Tuscaloosa, governor of the state and chief-justice of the supreme court: Abner S. Lipscomb, of Mobile, able lawyer, jurist and pure man: and John Mckinley, of Lauderdale, legislator, congressman, United States senator, and associate justice of the supreme court of the United States. In the decade from 1860 to 1870, among others. Joseph G. Baldwin, of Sumter, the able lawyer, and later in life judge of the supreme court of California, the author of "Party Leaders" and the classic "Flush Times in Alabama and Missis- sippi," the master of the most correct style that has ever been written in Alabama; Marion A. Baldwin, of Montgomery, attorney general . of the state for a longer term than any man who ever held the office, and
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impressing all throughout his term with his consummate ability ; Edward C. Bullock of Barbour, who as a mere boy took a front rank among the public men of the time and whose death was most widely and deeply deplored as cutting off a brilliant career; C. Comer Clay of Madison, an old-timer, whose life had been greatly prolonged. a legislator, congress- man. United States senator and justice of the state supreme court; Jeremiah Clemens, the author of "The Rivals" and "Mustang Gray," representative, district attorney and United States senator, the man who had to drink his genius down to a level with Yancey's; "Johns" Hooper, the author of "Simon Suggs," the lawyer and editor whose humor and wit in conversation remain as a tradition, whose deeper humor as a writer can never be forgotten; Arthur F. Hopkins of Madison, and later of Mobile, the great whig leader of his generation, candidate again and again on the demand of his party, but finding his reward in judicial honors; and William L. Yancey, himself, whose stern, bold and defiant eloquence in behalf of "southern rights." leaves even yet a sense of terror with the timid, who was the imcomparable orator of the cause of secession and who, by the fortunes of history, lies in a neglected grave in Montgomery, where he spent the best years of his life and whence he led in the impet- uous fury of the Civil war.
The decade between 1870 and 1880, brings us to a time when nearly every one carries some recollection of the distinguished lawyers dying during that period; of John A. Elmore of Montgomery, the drowsy, but powerful, logic chopper; Francis S. Lyon of Marengo, the indefatigable patriot, legislator and the bank commissioner upon whom fell the burden of the immense labor involved in closing the affairs of the state banks; and George S. Houston of Limestone, congressman, the governor whose memory will be immemorially treasured for his crowning services in put- ting a period to the riot of reconstruction in Alabama.
In the decade just passed we should have to consider. Leroy Pope Walker of Madison, the finest presiding officer the state has ever seen; William M. Lowe of Madison, one of the most adroit of politicians. and a little later names like David Clopton, a marvelously well and roundly equipped lawyer, who died a justice of the supreme court, and ex-Gov. Thomas H. Watts. an advocate of trandescendent power and a sound and learned lawyer. . It may be said that the bar of Alabama to-day is in every respect worthy of its great and useful past. It is out of the question to attempt an enumeration of the notable lawyers of the present, but certain names, among a host, like Pettus of Dallas: Seay of Hale; Walker of Jefferson: Humes of Madison: Clark of Mobile: and Tompkins of Mont- gomery, naturally come to the mind as attesting the unabated vigor of the Alabama bar, while names of younger men. like Knox. of Calhoun; Weatherly of Jefferson: Sayre and Lomax of Montgomery. and Vande- graaf of Tuscaloosa. a few among many. show forth its brilliant prospects for the future.
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In conclusion, some slight indication of the influence of the bar may be given in a summary way by the following statements. Of the twenty-eight governors the state of Alabama has had, twenty one were lawyers; of United States senators who held office before 1861, all but two were law- yers; of the forty-six representatives in the lower house of congress during that period. thirty-nine were lawyers. In the same body in the fifty-second congress, six out of eight members from Alabama were lawyers, and in the fifty-third, seven out of nine.
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CHAPTER X. ALABAMA JOURNALISM. BY W. W. SCREWS, MONTGOMERY.
FIRST JOURNALS ON THE AMERICAN CONTINENT - COLONIAL JOURNALISM - THE PRESS OF ALABAMA - PIONEER JOURNALS OF THE STATE - 4 HISTORY OF THE MODERN PRESS,
GLANCE at the history of journalism will show that its progress has been in line with the growth of population. According to Thomas' History of Printing. there is positive evidence that a printing press was established in Mexico as Y early as 1540, and, it is stated as a fact that "readers familiar with early books relating to Mexico have seen mention of a book printed there as early as 1535." There is evidence in the annals of the newspaper and periodical press of the United States, pub- lished in connection with the census of 1880, that in the year 1532, the Viceroy D. Antonio de Mendoza carried printing to Mexico, The first printer was Juan Pablos. and the first book printed in the new world was that written by St. John Climacus, entitled Spiritual Ladder to Ascend to Heaven. It is also shown that there were ninety-three books printed in Mexico prior to and including the year 1600. While our Mexican neigh- bors, therefore, antedate us in the knowledge and use of the printing art, it is not clear that they were also in the enjoyment of the luxury of newspapers before the people of the New England states. The proba- bilities are, however, that they were, for several authorities state . that newspapers or gazettes existed in Mexico before the close of the seven- teenth century. A monthly magazine called Gazette de Mexico was cer- tainly published in 1725, and a writer says "it is filled with accounts of religious functions. with descriptions of processions, consecrations of churches, beatifications of saints, festivals, etc. Civil or commercial affairs, and even the transactions of Europe, occupy but a small corner of this monthly magazine of intelligence."
COLONIAL JOURNALISM.
The royal governors of the colonies were vested with censorship of the press, and on no class did the Stamp act of 1765 rest with greater hardship than the publishers of the few newspapers then published in
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this country. Quite a number, especially in the south, had to suspend until that act was repealed. As a part of the history of the progress of journalism, it is well to quote from the annals above referred to, as to the effect of onerous taxation upon newspapers. Referring to the period when the stamp act bore so heavily upon them, it says: "More prudent but equally cautious publishers. when the act was to take effect, dressed their journals in mourning and for a few weeks omitted to publish them. Others, less cautious, but apprehensive of the consequences of publishing newspapers without stamps, omitted the titles altogether, or altered them as an evasion. Those publishers who continued to print without refer- ence to the stamp act, took a risk which proved how thoroughly imbued they were with the spirit out of which grew the revolution. The stamp act was but a temporary check to newspaper growth; but it must be regarded as the manifestation of a spirit which these early printers knew to be ever present, the spirit to coerce the press into more circumspect allusion to the causes of friction between the colonies and the mother country. The colonial governments in the colonies of Massachusetts and New York also resorted to stamp acts as a means of raising a revenue. Such an act was passed in Massachusetts in 1755, and a similar act by the assembly of New York in 1756, which was continued until January, 1760. During this period the papers then published in that colony some- times with stamps and sometimes without them.
"These acts were plainly modeled upon the English parliamentary law, which then bore so heavily upon the press of the mother country. The fact that there were but two, and that they lasted so short a time, may be accepted as the evidence that the American colonies early recognized the press as an instrument of popular education and instruction which was entitled to exemption from the burdens of taxation. It is worthy of remark that since the revolution, only two American states have attempted a direct tax upon the products of the press. In 1785, the legislature of Massachusetts passed an act imposing duties upon licensed vellum, parch- ments and paper and laid a duty of two-thirds of a penny upon news- papers and a penny upon almanacs, which were to be stamped. This act became at once so odious that it was repealed before it went into effect, but in the July following. another act was passed which imposed a duty on all advertisements inserted in the newspapers of the commonwealth. This latter act was denounced by Isaiah Thomas, then publisher of the Worcester Spy, and by many of his contemporaries. as placing an improper restraint upon the press, and in consequence of it he discon- tinued the publication of the Spy during the two years in which it was in operation. One of the sources of revenue in the state of Virginia as recently as 1848, was a tax on newspapers."
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