Alabama Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English common-law system

Alabama was an English common-law state throughout the period covered here. Its courts took the common law of England, together with English statutes of a general nature passed before the fourth year of James I, as the rule of decision except where the state's own constitution or statutes provided otherwise. That reception was stated in successive codes and remains on the books today.¹

This matters at the outset because of Alabama's tangled colonial history. Mobile was founded by the French in 1702, passed to Britain in 1763, and was held by Spain from 1780 until the United States took it in 1813; the surrounding country became part of the Mississippi Territory in 1798, was split off as the Alabama Territory in 1817, and entered the Union as a state on December 14, 1819. None of the earlier French or Spanish civil-law regimes carried forward into Alabama's law. Alabama never became a community-property state, and a researcher should not expect civil-law marital property rules to govern Alabama records.² (The French and Spanish records of the Mobile district before 1813 are a separate matter, governed by other law and outside the scope of this guide.)

A common law rewritten by statute

From an early date the legislature restated and revised the common law in a series of digests and official codes. The main compilations, each of which superseded the last, were Toulmin's Digest (1823), Aikin's Digest (1833, reissued with a supplement in 1836), Clay's Digest (1843), and then the official Codes of 1852, 1867, 1876, 1886, 1896, 1907, 1923, and 1940.³ When a rule is traced below, the citations follow it through these codes so that a researcher can read the version that was in force in the year of an ancestor's record. Where a section number in an older code could not be confirmed from a digitized text, the note says so plainly rather than guessing.

Legal Age of Adulthood

Majority at twenty-one

A person became an adult at 21, for both sexes, throughout the period. Alabama fixed no statutory age of majority; the common-law age of twenty-one applied by default.⁴ (Majority was later lowered to 19, but that change came in 1975, well after the period covered here.)

A minor's legal capacity

Before majority, a person could still own property but could not freely manage it or bind himself by contract. A minor's contracts and deeds were generally voidable rather than void, meaning they stood unless the minor undid them: the minor could confirm or disaffirm them — accept them or reject them — within a reasonable time after coming of age.⁵

Two statutory relaxations are worth knowing because they generate records. A minor over 18 could have the disabilities of minority removed on a petition filed in the equity court — the court that granted relief the ordinary common-law courts could not give, also called the chancery court. There were three routes and no others: a petition by the father or mother; a petition by the minor himself where he had no parent or guardian living, or where a parent was insane or had abandoned him for a year; and a petition by the minor joined by his guardian where he had a guardian but no parents. A married woman or widow who was 18 but under 21 was relieved of those disabilities for general purposes, though not political ones.⁶ A removal-of-disabilities decree in the chancery or equity records is a useful marker that a person was then between 18 and 21.

Marriage

Who was old enough to marry

By the Code of 1852 the statutory floor was 17 for a male and 14 for a female: a male under 17 or a female under 14 was incapable of contracting marriage, and that rule ran forward through the later codes.⁷ In the earliest years, before that statute, the common-law ages of 14 for a boy and 12 for a girl governed. A marriage below the statutory age was voidable rather than void, so it stood unless someone went to court to set it aside.⁸

Parental consent

Age of capacity and age of free choice were different things, and the line held steady for almost a century. A man of 21 and a woman of 18 could marry without anyone's consent. A man between 17 and 21, or a girl between 14 and 18, could marry only with the consent of a parent or guardian, given in person or in writing — unless the party had been married before. The Code of 1852 set that same 21 and 18 line, and required with it a bond of $200 payable to the state, void if there was no lawful cause against the marriage. The wording was still unchanged in the Code of 1923, and the rule reaches back past 1852 into the digests of the 1830s, so it governs essentially the whole period.⁹

The consent left a record of its own. The judge of probate kept a book registering every license, and had to enter whether the parties were of those ages; if not, whether either had been married before, and whether a parent or guardian had consented. A written consent was copied out on the same page as the license.⁹ A consent noted in a marriage bond or license file therefore signals that the groom was under 21 or the bride under 18, and often preserves the consenting parent's own words.

Common-law marriage

Alabama recognized common-law marriage for the whole of this period. A marriage good at common law was valid in Alabama even though the couple never obtained a license or stood before an officiant. The statute did require a license, issued by the judge of probate of the county where the woman lived, and named who could perform the ceremony: a licensed minister in regular communion with his own church, a judge of the supreme or circuit court, a judge of probate, or a justice of the peace, with the officiant returning a certificate to the probate judge within the month. The same section provided for marriages between free white persons and for marriages between free persons of color.¹⁰ What the law required was that both parties be capable of marrying, that they presently agree to be husband and wife, and that they live together and hold themselves out to the community as married.¹¹ This is one of the most important points for Alabama research: a couple may be validly married with no license, no minister's return, and no church record at all, their marriage provable only from census entries, deeds, tax lists, and the testimony of neighbors. (Common-law marriage was abolished for unions formed on or after January 1, 2017, but that is long after the period here.)

Void and voidable marriages

A marriage between persons within the prohibited degrees of kinship — that is, between relatives the law held too closely related to marry — was incestuous and void. The code named the degrees. A man could not marry his mother, stepmother, aunt, or his uncle's widow. He could not marry his sister, half-sister, or niece. He could not marry his daughter or granddaughter or his son's widow, nor his wife's daughter or granddaughter. The same bars applied whether the relatives were legitimate or not.

After a conviction for incest the court declared the marriage void, though children born before it was annulled were not treated as illegitimate. A second marriage entered into while a former husband or wife was living was bigamous, punishable by two to five years' imprisonment or hard labor. The penalty did not reach a person who had obtained a divorce decree allowing remarriage, nor one whose former spouse had been absent and not known to be living for the five years before the second marriage.¹²

Interracial marriage

Marriage between a white person and a person of color was prohibited and criminally punished. Under the Code of 1876 the parties to such a marriage, or to adultery or fornication across the color line, each faced two to seven years' imprisonment or hard labor, and a separate penalty fell on any justice, minister, or other officiant who performed the ceremony. It was this section of the Code of 1876 that the United States Supreme Court sustained in Pace v. Alabama in 1883. The bar was carried into the Constitution of 1901, which forbade the legislature ever to authorize a marriage between a white person and a person of color.¹³ The prohibition became unenforceable after Loving v. Virginia in 1967 and the dead-letter constitutional language was finally removed by amendment in 2000.

Enslaved people and after emancipation

Enslaved people could not contract a legal marriage; their unions, however stable and long-standing, had no standing in law, which is why enslaved couples appear in no antebellum marriage register. Emancipation changed that at a stroke. An ordinance of the 1865 constitutional convention ratified and made valid all marriages between freedmen and freedwomen who were then living together as man and wife, and declared that freedmen and freedwomen then living together and recognizing each other as husband and wife were married and bound by the obligations of that relationship. The same ordinance legitimated the children of such marriages or cohabitation, giving them the same relations to and from their parents as children born in wedlock.¹⁴ For these families the Freedmen's Bureau marriage and cohabitation registers are often the single best record of a union the state had for so long refused to record.

Property Ownership

Which men could own land

Any free person of full legal capacity could own and convey land. A foreign-born man did not have to naturalize first: a foreigner who was a bona fide resident of the state held the same rights of possession, enjoyment, and inheritance of property as a native-born citizen¹⁵. Free men of color could own and convey land as well, and did, but they held that right alongside a widening set of civil disabilities described below. One of those disabilities reached inheritance directly: an act of 1832 barred free people of color from inheriting property in Alabama, exempting those who had entered the state before it passed¹⁶. Enslaved men owned nothing at all: the law gave whatever they held to the enslaver, and treated their labor and their persons as the enslaver's property.¹⁵

Which women could own land

At common law a single adult woman or a widow — a feme sole, "woman alone" — held and conveyed land in her own name like a man. A married woman — a feme covert, "covered woman" — was under coverture: her legal identity merged into her husband's, he managed her lands during the marriage and took the rents, and she could not convey or contract on her own.

Alabama secured to married women a separate estate by statute before the Civil War, and the constitutions of 1868, 1875, and 1901 carried that separate estate forward. By the twentieth century a wife kept as her separate property whatever she owned at marriage or afterward acquired, and a married woman of 18 could contract as if she were single — with two limits that leave a documentary trail. She could not sell or mortgage her own land unless her husband joined in the deed. And she could not become surety for her husband's debts, meaning she could not make herself answerable to pay them if he failed to. (If the husband was mentally incapable, had abandoned her, was a nonresident, or was imprisoned for two years or more, she could deal with her lands without him.)¹⁷

When a wife had to sign her husband's deed

This is the most useful single fact for Alabama land research, and the answer holds for the whole period. A widow's dower was her life estate in a share of her husband's land — the use of that share for as long as she lived, not ownership of it. Dower attached not only to land the husband owned at his death but to all land of which he had been seized in fee at any time during the marriage, that is, all land he had held as its outright owner while they were married.

Because the wife's dower right reached back to every parcel the husband had owned while married to her, a purchaser could not take his land free of that right unless the wife released it. She did so by joining in her husband's deed, by joining him in a power of attorney to convey, or by a separate instrument executed by her alone after his conveyance; her signature had to be witnessed or acknowledged like any other conveyance. A wife of 18 could do this, so a release signed by a very young wife is worth checking against her age.¹⁸ So on a married man's deed the wife's signature and her acknowledgment (frequently taken privately, apart from her husband) are the norm, and the absence of a wife's release on a married grantor's deed is itself worth investigating.

Homestead

From the Constitution of 1875 onward, the family dwelling and its ground carried a further protection that likewise required the wife's hand. Where the homestead belonged to a married man, a mortgage or other alienation of it was not valid without the voluntary signature and assent of his wife — the same words appear in the Constitution of 1901 — so a conveyance without her assent did not pass a good title. Her assent had to be shown by an examination taken separately from her husband, before an officer authorized to take acknowledgments, and recorded in a certificate on or attached to the deed in a form the code prescribed. That homestead certificate is a distinct thing from an ordinary acknowledgment, and finding it on a deed tells you the land was the family homestead.¹⁹ A homestead declaration or a homestead waiver in the deed records is a reliable indicator of a marriage and often of minor children.

Which children could own land

A child could own land at any age, most often by inheritance or gift, but could not manage or convey it. Sales of a minor's land were made through a guardian under an order of the probate court, and a minor's own deed was voidable and could be disaffirmed after majority.¹⁵ The Code of 1852 put the positive rule plainly: a person of twenty-one, not otherwise under a legal incapacity, could convey his land or leave it by will.²⁰ Guardians' sales and settlements in the probate records are therefore among the richest sources for identifying a landowning child and his parents.

Witnessing a deed

A deed of land had to be written or printed, signed by the grantor at its foot, and attested by one witness. Two witnesses were required only where the grantor could not write his name — in that case his name was written for him with the words "his mark" beside it, and both witnesses had themselves to be able to write. Acknowledging the deed before an officer took the place of witnesses altogether. The Code of 1852 stated the rule in the same terms, so it governs the whole period rather than only the years after 1876.²⁰

That one-witness rule makes the exceptions worth noticing. A deed carrying two witnesses is a signal that the grantor signed by mark, which is useful evidence about an ancestor's literacy. Two witnesses were also required on a married woman's own conveyance of her land or stocks, unless she acknowledged it before an officer²⁰, and on a wife's relinquishment of dower in her husband's deed.

No age was fixed for a witness. The test was competency, so a mature minor could serve.

Enslaved people, free people of color, and Creek land

Before 1865 enslaved people could hold no property at all. Free people of color could own property they had lawfully acquired, but lived under a widening set of civil disabilities gathered in the antebellum slave and police laws — among them restrictions on entering the state, on retailing, on preaching, and, from 1832, on inheriting¹⁶.

A distinct body of records belongs to the Creek (Muscogee) country of eastern Alabama, whose lands were ceded and allotted under federal treaty — chiefly the 1832 Treaty of Cusseta, which set aside individual reserves that were largely lost to fraud in the years that followed. Those transactions are federal treaty and land matters, not Alabama statute, and the researcher should look to the federal treaty and land records rather than to the state codes.

Inheritance

When a person died without a will (intestate), Alabama law divided two different kinds of property by two different rules: land descended and carried the surviving spouse's life interest, while personal property was distributed outright. It helps to keep the two apart.

Land: the widow's dower

A widow took dower, a life estate in a graduated share of her husband's land. The size of her share turned on whether he left lineal descendants (children or grandchildren) and whether his estate was solvent, meaning it held enough to pay his debts:

These three fractions held for the whole period: the same rule appears in the digests of the 1830s and 1840s and was still in the code in 1923. If the wife had her own separate estate worth as much as her dower and her distributive share — her portion of the personal property — combined, she took nothing further; if it was worth less, she took the difference. For that comparison her dower was valued at seven years' rent of the dower interest.²¹ Dower was a life interest only, so it did not put the fee (the ownership) in the widow's hands; watch for the land itself descending to the heirs subject to the widow's life right.

Personal property: the distributive share

The husband's personal estate, after debts, went to the widow and children in fixed shares that turned on the number of children. These shares are as stable as the dower fractions, running from the 1830s digests to the end of the period:

A surviving husband's interest in an intestate wife's estate was the old curtesy (a widower's life interest in his late wife's land), reshaped by statute: he took one-half of her personal property absolutely and the use of all her land for his life.²³ Either survivor took the whole of the other's land outright only where the decedent left no descendants, no parent, and no brothers or sisters or their descendants.²⁴

The widow's quarantine, allowance, and right to dissent

Several provisions supported a widow immediately and appear in the estate file. She could stay in the dwelling house, with the outbuildings and the plantation attached, rent-free until her dower was set apart — the old right of quarantine. The family was allowed twelve months' provisions, the family clothing and furniture, and personal property to the value of $1,000, all exempt from the estate's debts. And a widow could not be disinherited: within the time allowed she could dissent from her husband's will — formally refuse what it gave her — and instead take her dower and the distributive share she would have received had he died intestate.²⁵

One wartime provision is worth knowing for widows of Confederate soldiers. An ordinance of the 1865 convention directed that the period between 11 January 1861 and 29 September 1865 was not to be counted as part of the time within which a widow could claim dower or dissent from her husband's will²⁵. A widow whose husband died during the war therefore had those four and a half years added to her window, which can explain a dower claim or a dissent filed years after the death.

Minors, guardians, and the age of fourteen

Where a child inherited, the probate court appointed a guardian of the estate, the father being preferred for his own child. A guardian who was not the child's parent could not control the child's person during the life of the father, or of the mother where the ward was a girl of any age or a boy under fourteen; a parent could name a testamentary guardian of the estate by will, but the surviving parent kept custody of the child.²⁶ Before letters issued, the guardian gave bond to the judge of probate in twice the supposed value of the ward's estate,²⁶ so the sum named in the bond is a rough index of what the child had inherited.

A ward over fourteen could nominate his own guardian, subject to the court's approval and still with a preference for the father, so a minor's choice of guardian in the record marks him as over fourteen.²⁷ Guardianship ran until the ward reached 21, when the guardian filed in the probate court a full account of the guardianship with its vouchers, sworn to, and the court set a day for the settlement on ten days' notice to the ward once he had come of age. That final settlement often fixes the ward's coming-of-age year and names the family.²⁷

The probate court's jurisdiction also reached the binding out of apprentices, the mechanism by which orphaned children, and the children of parents unable to support them, were placed with masters. A child was bound to 21 if a boy and 18 if a girl. The master had to feed, clothe, and lodge the apprentice, teach him a trade and to read and write, and hand him two new suits of clothing at the end of the term. After emancipation the law added a pointed feature: where the bound child was the child of a freedman, the child's former owner had the first claim to take him — a provision that returned many freed children to the households that had enslaved them, and that leaves its own trail of records.²⁸

Children born outside marriage

A child born outside marriage could inherit from and through the mother. If such a child died intestate leaving no descendants, the mother inherited; the courts read the statute to give the mother one-half and the child's brothers and sisters the other half.²⁹

The father of a child born out of wedlock could be brought to account. The mother could begin bastardy proceedings within one year of the birth — or later, if the father had acknowledged or supported the child in the meantime — and an adjudged father gave bond to pay an annual sum, not to exceed $100 a year for ten years, for the child's support — a proceeding that names the father and is preserved in the county records.³⁰

The proceeding had the same shape a century earlier, and it was the figures that moved rather than the structure. Under the Code of 1852 the reputed father was arrested on the mother's complaint; if the issue was found against him he gave bond with security of $1,000 payable to the state, conditioned to pay such sum as the court fixed — not more than $50 a year — every first Monday in January for ten years, to the judge of probate for the child's support and education. The bond was recorded, and it was discharged by the death of the child or by the marriage of the parents.³⁰ So a bastardy bond that simply stops is as likely to mean the parents married as that the child died.

A child could be legitimated as to the father in three ways: by the later marriage of the mother and reputed father together with the father's recognition of the child; by the father's written declaration, attested by two witnesses and acknowledged before and recorded by the probate judge, naming the child and recognizing it as his; or, until 1901, by a private act of the legislature. Any of the three made the child capable of inheriting from the father as if born in wedlock. The Constitution of 1901 forbade the legislature to pass a special, private, or local law legitimizing a child, which closed the third route and left the two general ones.³¹

Children of freed parents

For families freed by emancipation, the 1865 ordinance that validated the parents' marriage also settled the children's inheritance. Because the children of freedmen and freedwomen living together as man and wife were declared legitimate, with the full relations of children born in wedlock, they could inherit from and through both parents — where a child of an enslaved couple could once look only to the mother. The parents' relationship, and so the child's legitimacy, could be proved by cohabitation and repute rather than by any paper, which matters because these couples rarely left one. This is often the key that opens African American inheritance research in Alabama.¹⁴

Wills, executors, and witnesses

Alabama drew a line between the two kinds of property in wills as well. A person could devise land — leave it by will — at 21, and could bequeath personal property — leave money, goods, and livestock by will — at 18. A will disposing of both therefore required the testator, the person making the will, to be twenty-one as to the land.³²

Capacity to make a will and capacity to manage property were not the same thing. An 18-year-old could bequeath his personal property, but he remained a minor for every other purpose until 21, so property he had inherited was managed for him by a guardian and came under his own free control only when he came of age or when a court decree removed the disabilities of his minority.⁶ A valid will had to be in writing, signed by the testator or by someone else in his presence and at his direction, and attested by at least two witnesses who subscribed their names in his presence³². Alabama did not recognize a holographic (unwitnessed handwritten) will, so a paper offered as a will should show two witnesses. A later marriage together with the birth of a child revoked an earlier will, and the marriage of a single woman revoked a will she had made before.³³

An executor had to be of full age: a person under 21 was disqualified from serving, as was one convicted of an infamous crime — a serious offense that cost a person the right to hold office or testify — or shown to be incompetent from intemperance, improvidence, or want of understanding. Where the person named as executor was under age, the court granted administration with the will annexed, appointing someone else to carry out the will in his place until the disability was removed, at which point the named executor could come in.³⁴ A married woman named as executrix needed her husband's written consent, filed with the probate judge, and by giving it he became jointly answerable for her acts.³⁴

Taxation

What was taxed

Alabama taxed real and personal property by value (ad valorem) and laid a poll (capitation) tax — a flat, per-head tax — on adults.

The schedule in force in the early 1840s taxed every enslaved person of ten years or under at ten cents, and every one over ten and under fifty at fifty cents, those made valueless by disease being exempt; every free negro and mulatto over twenty and under sixty at one dollar; and every white male over twenty-one and under forty-five at twenty-five cents. Two exemptions ran alongside it: a free person excused by bodily infirmity from working the public roads was also excused from the poll tax, and a free person of color who had reached sixty was not liable for it.³⁵ A decade earlier the brackets were drawn differently. Aikin's Digest gives a schedule taxing every enslaved person of ten years or under at fifteen cents and each one over ten and under sixty at fifty-six and a quarter cents; every free male negro or mulatto over twenty-one at a dollar; and every free white male over twenty-one and not over forty-five at twenty-five cents. A second schedule in the same digest cuts each of those rates roughly in half. Two things separate this from the 1843 list: the enslaved were taxed to sixty rather than fifty, and only free men of color were taxed.³⁶ The revenue acts between statehood in 1819 and Aikin's Digest have not been checked against the volumes for this guide; the title on taxes in Toulmin's Digest reprints territorial acts of 1809 to 1816 and carries no schedule of this kind, so the earliest state revenue acts remain to be read in the session laws.

By the Code of 1852 the poll tax was set out in more detail:

Two features of that schedule matter for research. Free women of color were taxed while white women were not, so free families of color can often be identified in the antebellum tax lists by the taxation of their wives and daughters. One proviso limits that inference. Under the 1843 schedule, where the head of a free family of color paid more than a dollar in tax on his real or personal property, the women of his family were not taxed,³⁵ so an untaxed woman in the household is not evidence that the family was white. Nor does the marker work at all before the 1840s, since the earlier schedules reached only free men of color. And enslaved people appear among the owner's taxable assets rather than as taxpayers, which makes antebellum tax rolls a substitute census of the enslaved.³⁷ Under the Constitution of 1875 property was assessed ad valorem and the poll tax was applied to the public schools.³⁸

The poll tax

The Constitution of 1901 made the poll tax a barrier to voting. It laid a poll tax of $1.50 on each male inhabitant over 21 and under 45 who was not otherwise exempt, and it made payment of every year's tax since 1901 a condition of registering and voting³⁹. That cumulative feature is what gave the tax its force: a man who had fallen behind owed the whole arrears, not a single year's dollar and a half, and he had to clear it by the first of February before the election to cast a ballot. The proceeds went to the public schools of the county where they were collected. The scheme worked, and was meant to work, to keep poor men of both races, and Black men in particular, off the rolls. It was pared back by amendment in December 1953 and struck down as a condition of voting in the 1966 federal litigation, consistent with the Twenty-fourth Amendment (1964) and the Supreme Court's decision in Harper v. Virginia Board of Elections (1966)³⁹. Poll-tax and voter-registration records, where they survive, are a source for men between 21 and 45.

Courts

Jury service

Before the Civil War the panel came off a county list. The sheriff obtained a list of the householders and freeholders of the county every two years, and he, the judge of probate, and the clerk of the circuit court selected from it the men they thought able to serve with honesty, impartiality, and intelligence, taking only those esteemed in the community for integrity, fair character, and sound judgment. A juror had to be at least 21 and not over 60, free of permanent disease, not a habitual drunkard, and able to read and write. A long list of occupations was excused unless the man consented to serve, among them attorneys in practice, judges, ministers in charge of churches, practicing physicians, teachers, keepers of public mills, ferry and toll keepers, and steamboat officers and crew.⁴⁰

Owning land was never the test. A householder qualified as fully as a freeholder, so a man on the antebellum panel did not necessarily own real estate. The selected list gave each man's name, his residence, and his occupation, and was filed with the judge of probate within ten days⁴⁰ — a biennial roll of the county's householders and freeholders, with occupations, sitting in the probate records.

By the twentieth century the qualifications had shifted at the edges while keeping their shape. Only male citizens qualified under the statute were placed on the jury roll. The qualifications, as they stood in the code quoted by the Supreme Court in Norris v. Alabama, ran to male citizens between 21 and 65 who were of good character and sound judgment and could read English — excusing the illiterate freeholder or householder — and excluding habitual drunkards, the infirm, and those convicted of crimes of moral turpitude, meaning offenses the law treated as showing a corrupt character.⁴¹

Women as jurors

Women could not sit on Alabama juries for the whole of this period. The exclusion held until the federal court struck it down in White v. Crook in 1966; the legislature then amended the jury statute to admit women, and the change is described in the Supreme Court's later decisions.⁴² A woman's name will not appear on a jury venire — the list of people summoned for jury duty — before the later 1960s.

Black men as jurors

Black men were legally eligible for jury service after the Reconstruction constitution of 1868, but in practice they were kept off Alabama juries for generations by the discretionary machinery of the jury commissions — the discrimination the Supreme Court condemned in Norris v. Alabama in 1935.⁴³ Eligibility in law and presence on the rolls were, for a long time, two very different things.

Criminal responsibility

The common-law ages governed a child's criminal responsibility: a child under 7 was conclusively incapable of crime; between 7 and 14 the law presumed incapacity, but the presumption could be rebutted by proof that the child knew the act was wrong; and at 14 and above a person answered as an adult.

Statute changed this in 1907. An act of that year defined a delinquent child as any child under fourteen who broke a state law or town ordinance, or who was incorrigible, idle, or kept bad company, and sent such cases to the chancery court or any court with equity powers — and, in cities whose police courts could try misdemeanors, to those courts as well. Each such court kept a separate juvenile docket and minute book, and the hearing was closed to everyone but the officers of the court, the lawyers, and the child's parents or guardian⁴⁴.

The larger counties got dedicated courts. The Juvenile Court of Jefferson County, the first regularly established in the state, dates from 1911, and an act of 1919 created juvenile courts in every county with a population of at least 150,000. Those courts took a wider age range: a male child under sixteen and a female child under eighteen⁴⁵. An adjudication under the 1919 act counted as neither a crime nor a conviction.

The practical effect for research is that the record moves. A child within those ages has a juvenile file rather than a criminal case file, and juvenile files are usually closed.

Witnesses

The test for an ordinary witness was competency — the capacity to understand the oath and to observe and relate facts — so a child of sufficient understanding could testify. Husband and wife were competent for or against each other in civil cases, except as to confidential communications between them, and a wife was a competent witness against a husband charged with abandoning his family. By the 1920s the criminal rule was broader still: either spouse could testify for or against the other in a criminal case, though neither could be compelled to.⁴⁶

Before emancipation the rule turned on race. Under the Code of 1852, negroes, mulattoes, Indians, and persons of mixed blood descended from negro or Indian ancestors to the third generation — whether enslaved or free — could not be witnesses in any cause, civil or criminal, except for or against each other. This barred the testimony of people of color against a white party in exactly the disputes where it would have mattered most. The Thirteenth and Fourteenth Amendments and the federal Civil Rights Act of 1866 swept the disability away and gave people of color full competence as witnesses.⁴⁷

(Guide compiled by Jeniann Nielsen with AI assistance from Claude Opus 4.8 and Gemini Pro 3.1. Check primary sources as needed.)

Sources & Where to Verify

Every rule above is tagged with the law it rests on. The lists below show where to read those laws in full, and the reference works consulted, so anything here can be checked against the original sources.

Constitutions

• Alabama. Constitution. 1819, 1861, 1865, 1868, 1875, and 1901. Digital images. Justia US Law. https://law.justia.com/constitution/alabama/ (accessed 23 July 2026). Also available through the Alabama Department of Archives and History.
• Constitution and Ordinances Adopted by the State Convention of Alabama. Montgomery: Gibson & Whitfield, State Printers, 1865. The ordinance of 29 September 1865 ratifying marriages between freedmen and freedwomen. Digital images. Internet Archive. https://archive.org/details/alabama-constitutional-convention-ordinances-1865 (accessed 23 July 2026).

Codes and Compilations

• Aikin, John G., comp. A Digest of the Laws of the State of Alabama. Philadelphia: Alexander Towar, 1833. Reissued with a supplement by Alexander B. Meek and the public acts of 1833–35 as Tuskaloosa, Ala.: D. Woodruff; Mobile: S. Smith, 1836. Digital images of the 1836 edition. Internet Archive. https://archive.org/details/alabama-code-1836 (accessed 23 July 2026).
• Alabama. The Code of Alabama. Montgomery: Brittan and De Wolf, State Printers, 1852. Prepared by John J. Ormond, Arthur P. Bagby, and George Goldthwaite, with head notes and index by Henry C. Semple. Digital images. Internet Archive. https://archive.org/details/codeofalabamapre00alab (accessed 23 July 2026).
• Alabama. The Code of Alabama, 1876. Montgomery, Ala.: Barrett & Brown, Printers for the State, 1877. Prepared by Wade Keyes and Fern M. Wood, and by John D. Roquemore as successor to Wood, who died in 1877; adopted by act approved 12 February 1877. The title page adds that the volume carries references to the decisions of the Supreme Court on the construction of the statutes, and that the general and permanent acts of the session of 1876–77 have been incorporated. Each section prints its Revised Code of 1867 number in parentheses, which makes the volume the fastest way to trace a rule backward. Digital images of the Harvard Law School copy. Google Books; also HathiTrust, catalog record 102714212, https://babel.hathitrust.org/cgi/pt?id=hvd.hl3g42 (accessed 23 July 2026).
• Alabama. The Code of Alabama, 1886. 2 vols. Nashville: Marshall & Bruce, printers, 1887. Prepared by Robert C. Brickell, Peter Hamilton, and John P. Tillman. Digital images. Vol. 1 (civil), HathiTrust, catalog record 008597546, https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421772; vol. 2 (criminal), Internet Archive, https://archive.org/details/alabama-code-1886-v-2 (accessed 23 July 2026).
• Alabama. The Code of Alabama, 1896. 2 vols. Atlanta, Ga.: The Foote & Davies Company, printers, 1897. Prepared by William L. Martin, commissioner. Digital images. HathiTrust, catalog record 008597548. Vol. 1, https://babel.hathitrust.org/cgi/pt?id=nyp.33433009075833; vol. 2, https://babel.hathitrust.org/cgi/pt?id=nyp.33433009075841 (accessed 27 July 2026).
• Alabama. The Code of Alabama. Nashville, Tenn.: Marshall & Bruce Company, 1907. Prepared by James J. Mayfield. Digital images. Internet Archive. https://archive.org/details/codealabamaadop00mayfgoog (accessed 23 July 2026).
• Alabama. The Code of Alabama. 4 vols. Atlanta, Ga.: Foote & Davies Co., printers, 1923. Prepared by James J. Mayfield, Code Commissioner. Each section prints its own history line back through the earlier codes, which makes this the fastest volume for tracing a rule. Digital images. HathiTrust, catalog record 010447350. Vol. 1, https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421848; vol. 2, https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421830; vol. 3, https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421822; vol. 4, https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421756 (accessed 27 July 2026).
• Alabama. Code of Alabama 1940. 10 vols. Charlottesville, Va.: Michie, 1941. Edited and annotated by the Code Commissioner under the supervision of the Code Committee of the Legislature. Adopted by act approved 2 July 1940 and published the following year; later reissued in a recompiled fifteen-volume set, Michie, 1960–1976. The code in force through the close of the period covered by this guide. Not on the open web; consult it in a law library or through a subscription archive.
• Alabama. Code of Alabama 1975. Current code; online at the Alabama Legislature and at Justia US Law.
• Alabama. The Penal Code of Alabama. Montgomery: Reid & Screws, State Printers, 1866. By George W. Stone and John W. Shepherd. Digital images. Internet Archive. https://archive.org/details/alabama-penal-code-1866 (accessed 23 July 2026).
• Alabama. The Revised Code of Alabama. Montgomery, Ala.: Reid & Screws, State Printers, 1867. Prepared by A. J. Walker; adopted by act approved 19 February 1867. The front matter reprints the ordinances and resolutions of the convention of 1865 at pp. 52–68, including No. 36 (dower limitation) and No. 39 (marriages of freedmen and freedwomen). Digital images. HathiTrust, catalog record 010447348. https://babel.hathitrust.org/cgi/pt?id=mdp.35112105058020 (accessed 23 July 2026).
• Clay, Clement Comer, comp. A Digest of the Laws of the State of Alabama. Tuskaloosa: Marmaduke J. Slade, 1843. The title "Taxes — Subjects and Rate of Taxation" carries the antebellum poll-tax schedule and its exemptions. Digital images. Internet Archive. https://archive.org/details/alabama-code-1843 (accessed 23 July 2026).
• Toulmin, Harry, comp. A Digest of the Laws of the State of Alabama. New York: Ginn & Curtis; J. & J. Harper, printers, 1823. Digital images. Internet Archive. https://archive.org/details/alabama-code-1823 (accessed 23 July 2026).

Session Laws

• Alabama. Acts of Alabama. Alabama Department of Archives and History, Montgomery; portions digitized on HathiTrust and the Internet Archive. Session laws not folded into a code, including the anti-miscegenation acts and the 1966 act admitting women to juries.
• Alabama. General Acts of Alabama, 1907. No. 340, the act defining delinquent children (p. 442). Digital images. Internet Archive. https://archive.org/details/alabama-acts-1907_general (accessed 23 July 2026).
• Alabama. General Acts of Alabama, 1919. No. 146, creating juvenile courts in counties of 150,000 or more. Digital images. Internet Archive. https://archive.org/details/alabama-acts-1919_general (accessed 23 July 2026).

Court Cases

Published decisions, readable at Justia US Law and CourtListener:

• Bell v. Burkhalter. 176 Ala. 62, 57 So. 460 (1912).
• Beggs v. State. 55 Ala. 108 (1876).
• Campbell's Adm'r v. Gullatt. 43 Ala. 57 (1869).
• Carter v. Jury Commission of Greene County. 396 U.S. 320 (1970).
• Dorsey v. Dorsey. 224 Ala. 496, 140 So. 540 (1932).
• Gordon, Rankin & Co. v. Tweedy. 71 Ala. 202 (1881).
• Harper v. Virginia Board of Elections. 383 U.S. 663 (1966).
• Hoyt v. Florida. 368 U.S. 57 (1961).
• Joyner v. McMurphy. 26 Ala. App. 549, 163 So. 533 (1935).
• Loving v. Virginia. 388 U.S. 1 (1967).
• McCoy v. State. 221 Ala. 466, 129 So. 21 (1930).
• Moore v. Heineke. 119 Ala. 627, 24 So. 374 (1898).
• Norris v. Alabama. 294 U.S. 587 (1935).
• Owen v. Coffey. 201 Ala. 531, 78 So. 885 (1918).
• Peddy v. Montgomery. 345 So. 2d 631 (Ala. 1977).
• Pace v. Alabama. 106 U.S. 583 (1883).
• Rogers v. McLeskey. 225 Ala. 148, 142 So. 526 (1932).
• Tannis v. Doe ex dem. St. Cyre. 21 Ala. 449 (1852).
• Thompson v. New England Mortgage Security Co. 110 Ala. 400, 18 So. 315 (1895).
• United States v. Alabama. 252 F. Supp. 95 (M.D. Ala. 1966).
• Ward v. Mathews. 122 Ala. 188, 25 So. 50 (1899).
• White v. Crook. 251 F. Supp. 401 (M.D. Ala. 1966).

Secondary and Reference Works

• Alabama Council on Crime and Delinquency. "Our Story." ACCD. https://accdonline.org/our-story/ (accessed 23 July 2026). For the 1911 establishment of the Juvenile Court of Jefferson County.
• Alabama Department of Archives and History. Montgomery. Constitutions, session laws, and county records. "Research Tips," for the county records held on microfilm, including guardianship records running from before statehood into the 1950s. https://archives.alabama.gov/research/guidance/tips.aspx (accessed 27 July 2026).
• FamilySearch Research Wiki. "Alabama Probate Records." Estate, guardianship, dower, and bond records, county by county. https://www.familysearch.org/en/wiki/Alabama_Probate_Records (accessed 27 July 2026).
• Library of Congress. "Alabama: Local History and Genealogy Resource Guide." https://guides.loc.gov/alabama-local-history-genealogy (accessed 27 July 2026).
• Encyclopedia of Alabama. https://encyclopediaofalabama.org (accessed 23 July 2026). Context on the constitutions, slavery, and Reconstruction.
• Freedmen's Bureau. Marriage and Cohabitation Registers. Records of the Bureau of Refugees, Freedmen, and Abandoned Lands, National Archives. For the unions and children of formerly enslaved families.
• Key, V. O. Southern Politics in State and Nation. New York: Alfred A. Knopf, 1949. On the working of the cumulative poll tax.
• University of Alabama Law Library. "Alabama State Statutes & Session Laws: Code of Alabama — Historical." https://guides.library.law.ua.edu/c.php?g=1440661&p=10700441 (accessed 23 July 2026). The succession of digests and codes, with adoption dates.
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: Report for Alabama. Bulletin of the Women's Bureau 157-1, revised. Washington: Government Printing Office, 1949. PDF. FRASER. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-01-rev_dolwb_1949.pdf (accessed 23 July 2026). States the law as of 1 January 1948, topic by topic, on majority, married women's property, dower, curtesy, intestacy, guardianship, marriage, and jury service.

Citations

1. James J. Mayfield, comp., The Code of Alabama (Nashville, Tenn.: Marshall & Bruce Company, 1907), § 12; digital images, Internet Archive (https://archive.org/details/codealabamaadop00mayfgoog : accessed 23 July 2026); carried forward at James J. Mayfield, comp., The Code of Alabama, 4 vols. (Atlanta, Ga.: Foote & Davies Co., printers, 1923), § 14; digital images, HathiTrust, catalog record 010447350 (https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421848 : accessed 27 July 2026), and Code of Alabama 1940, 10 vols. (Charlottesville, Va.: Michie, 1941), tit. 1, § 3, now Ala. Code § 1-3-1. The code was adopted by act approved 2 July 1940 and published the following year. The 1940 sections cited in these notes were not read in the code itself, which is not available online; except for tit. 1, § 3, each was read in U.S. Women's Bureau, The Legal Status of Women in the United States of America: Report for Alabama, Bulletin of the Women's Bureau 157-1, rev. (Washington: Government Printing Office, 1949), which digests the code topic by topic and states the law as of 1 January 1948. The bulletin's topic number is given with each. Title 1, § 3 falls outside the bulletin's scope and rests instead on the parallel sections of the codes of 1907 and 1923 cited above. The common law had been received earlier through the statutes of the Mississippi Territory (1807) and continued by Alabama Constitution of 1819, art. VI, § 5; digital images, Justia US Law (https://law.justia.com/constitution/alabama/ : accessed 23 July 2026). ↩
2. Joyner v. McMurphy, 26 Ala. App. 549, 163 So. 533 (1935). The colonial sequence — French Mobile from 1702, British from 1763, Spanish from 1780, United States from 1813; Mississippi Territory 1798; Alabama Territory 1817; statehood 14 December 1819 — is drawn from the standard territorial history and is given for orientation. ↩
3. Harry Toulmin, comp., A Digest of the Laws of the State of Alabama (New York: Ginn & Curtis; J. & J. Harper, printers, 1823); digital images, Internet Archive (https://archive.org/details/alabama-code-1823 : accessed 23 July 2026). John G. Aikin, comp., A Digest of the Laws of the State of Alabama (Philadelphia: Alexander Towar, 1833), reissued with a supplement as (Tuskaloosa, Ala.: D. Woodruff; Mobile: S. Smith, 1836); digital images of the 1836 edition, Internet Archive (https://archive.org/details/alabama-code-1836 : accessed 23 July 2026). Clement Comer Clay, comp., A Digest of the Laws of the State of Alabama (Tuskaloosa: Marmaduke J. Slade, 1843); digital images, Internet Archive (https://archive.org/details/alabama-code-1843 : accessed 23 July 2026). John J. Ormond, Arthur P. Bagby, and George Goldthwaite, comps., The Code of Alabama (Montgomery: Brittan and De Wolf, State Printers, 1852), with head notes and index by Henry C. Semple; digital images, Internet Archive (https://archive.org/details/codeofalabamapre00alab : accessed 23 July 2026). A. J. Walker, comp., The Revised Code of Alabama (Montgomery, Ala.: Reid & Screws, State Printers, 1867); digital images, HathiTrust, catalog record 010447348 (https://babel.hathitrust.org/cgi/pt?id=mdp.35112105058020 : accessed 23 July 2026). Wade Keyes and Fern M. Wood, and John D. Roquemore, successor to Wood, comps., The Code of Alabama, 1876 (Montgomery, Ala.: Barrett & Brown, Printers for the State, 1877); digital images, HathiTrust, catalog record 102714212 (https://babel.hathitrust.org/cgi/pt?id=hvd.hl3g42 : accessed 27 July 2026). The title page names all three and marks Roquemore as Wood's successor; Wood died in 1877, and the volume carries a memorial notice of the Supreme Court bar meeting of 30 July 1877. The Code of Alabama, 1886, prepared by Robert C. Brickell, Peter Hamilton, and John P. Tillman, 2 vols. (Nashville: Marshall & Bruce, printers, 1887); digital images, vol. 1, HathiTrust, catalog record 008597546 (https://babel.hathitrust.org/cgi/pt?id=mdp.35112105421772 : accessed 23 July 2026), and vol. 2, Internet Archive (https://archive.org/details/alabama-code-1886-v-2 : accessed 23 July 2026). William L. Martin, comp., The Code of Alabama, 1896, 2 vols. (Atlanta, Ga.: The Foote & Davies Company, printers, 1897); digital images, HathiTrust, catalog record 008597548 (https://babel.hathitrust.org/cgi/pt?id=nyp.33433009075833 : accessed 27 July 2026). The codes of 1876, 1886, and 1896 each carry a title year one year earlier than the imprint year, having been adopted early in the following year. Short forms below: Toulmin's Digest, Aikin's Digest, Clay's Digest, Code of 1852, Revised Code of 1867, Code of 1876, Code of 1886, Code of 1896, Code of 1907, Code of 1923, Code of 1940. ↩
4. U.S. Women's Bureau, The Legal Status of Women in the United States of America: Report for Alabama, Bulletin of the Women's Bureau 157-1, rev. (Washington: Government Printing Office, 1949), no. 1; PDF, FRASER (https://fraser.stlouisfed.org/files/docs/publications/women/b0157-01-rev_dolwb_1949.pdf : accessed 23 July 2026), giving the age of majority for both sexes as 21 and stating the law as of 1 January 1948. Majority was lowered to 19 by Acts of Alabama 1975, No. 77, now Ala. Code § 26-1-1. ↩
5. Bell v. Burkhalter, 176 Ala. 62, 57 So. 460 (1912), applying the received common-law rule that a minor's contracts are voidable and may be disaffirmed within a reasonable time after majority; the reception of the common law is at note 1. The annotator of the Code of 1923 treats the case as reaching conveyances as well: the notes to § 8265 describe it as a bill to declare a deed void and remove a cloud on title, brought by a married woman to set aside a conveyance she had made while a minor, and add from the same decision that an infant must return what he has received in order to avoid his contract. The notes to § 8267 cite a further decision, 160 Ala. 537, 49 So. 580 (1909), as a bill by infants to cancel a deed executed by them, on the infants' disaffirmance; the name of that case has not been confirmed and it is given here by reporter citation alone. ↩
6. Code of 1940, tit. 27, §§ 13–20 (removal of the disabilities of a minor between 18 and 21 by the equity court); tit. 34, § 76 (a married woman or widow 18 but under 21 relieved of the disabilities of minority for purposes other than political); read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 2. The earlier text is Code of 1923, § 8280, read in the volume, authorizing the circuit courts in equity, in term time or vacation, to relieve minors over eighteen from the disabilities of nonage in three cases and no other: on the petition of the father or mother; on the minor's own petition where he has no father, mother, or guardian, or where a parent is insane or has abandoned him for a year; and on the minor's petition joined by his guardian where he has a guardian but no parents. The section carries Code of 1907, § 4505, Code of 1896, § 829, Code of 1886, § 2357, and Code of 1876, § 2735, from the acts of 17 March 1873 and 13 February 1879. ↩ ↩
7. Code of 1923, § 8993, headed "What minors incapable of marriage," read in the volume: a man under seventeen and a woman under fourteen are incapable of contracting marriage. The section carries Code of 1907, § 4879, Code of 1896, § 2839, Code of 1886, § 2309, Code of 1876, § 2672, Revised Code of 1867, § 2333, and Code of 1852, § 1944, and its notes record that such a marriage is voidable merely. Code of 1940, tit. 34, § 4, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 18. ↩
8. Owen v. Coffey, 201 Ala. 531, 78 So. 885 (1918). ↩
9. Code of 1940, tit. 34, § 10; and see U.S. Women's Bureau, Legal Status of Women: Alabama, no. 18, stating the rule as of 1 January 1948 and noting the exception for a party previously married. The same line is set a century earlier at Code of 1852, § 1950 (consent of the parents or guardians required where the male is under twenty-one and the female under eighteen and neither has had a former wife or husband, given personally or in writing with its execution proven, together with a bond of two hundred dollars payable to the State of Alabama) and § 1951 (the judge of probate to keep a book registering every license and stating whether the parties were of those ages, whether either had been previously married, and whether consent was given, a written consent to be transcribed on the same page on which the license is recorded, the record being presumptive evidence of those facts). The rule was still in the same words in Code of 1923, § 8999, headed "When consent of parents and bond required," read in the volume, which carries Code of 1907, § 4885, Code of 1896, § 2845, Code of 1886, § 2315, Code of 1876, § 2678, Revised Code of 1867, § 2339, and Code of 1852, § 1950, and traces the rule in its note to Aikin's Digest, p. 305, § 5, and Clay's Digest, p. 373, § 5. The notes to that section add that a marriage was not invalidated because the license issued without the parents' consent, 205 Ala. 502, 88 So. 577. ↩ ↩
10. Code of 1852, § 1946 (marriages solemnized between free white persons, or between free persons of color, by any licensed minister of the gospel in regular communion with the church or society of which he is a member, by a judge of the supreme or circuit court within the state, or by the judge of probate or any justice of the peace within their respective counties), § 1949 (no marriage to be solemnized without a license, issued by the judge of probate of the county in which the female resides), and § 1952 (the officiant to certify the marriage in writing to the judge of probate within one month, the certificate recorded in the book kept for the registry of licenses); §§ 1947–1948 provide for marriages according to the forms of a religious society, the society's clerk keeping a register that is presumptive evidence of the fact. ↩
11. Campbell's Adm'r v. Gullatt, 43 Ala. 57 (1869); Beggs v. State, 55 Ala. 108 (1876); Moore v. Heineke, 119 Ala. 627, 24 So. 374 (1898); Rogers v. McLeskey, 225 Ala. 148, 142 So. 526 (1932). Common-law marriage was abolished for unions formed on or after 1 January 2017 by Ala. Code § 30-1-20. ↩
12. Code of 1876, §§ 2670–2671 (incestuous marriages and the prohibited degrees, § 2671 extending the bar to illegitimate relatives), § 2673 (the marriage declared void after conviction, the issue born before annulment not deemed illegitimate), and §§ 4185–4186 (bigamy); carried from Revised Code of 1867, §§ 3599–3600. ↩
13. Code of 1876, § 4189, the section sustained in Pace v. Alabama, 106 U.S. 583 (1883), and § 4190 (the penalty on the officiant); the earlier version is in The Penal Code of Alabama (Montgomery: Reid & Screws, State Printers, 1866); digital images, Internet Archive (https://archive.org/details/alabama-penal-code-1866 : accessed 23 July 2026). The constitutional bar is Alabama Constitution of 1901, art. IV, § 102. The prohibition became unenforceable after Loving v. Virginia, 388 U.S. 1 (1967), and the constitutional language was repealed by Amendment 667, ratified 2000. ↩
14. Ordinance No. 39, "To ratify marriages between freedmen and freedwomen, and for other purposes," adopted 29 September 1865, § 1 (ratifying the marriages of freedmen and freedwomen then living together as man and wife, and declaring those recognizing each other as husband and wife to be married) and § 2 (legitimating the issue of such marriages or cohabitation, with the relations of children born in wedlock). Sections 3 through 5 required the fathers of children born outside such unions to support them as in the case of bastards, subjected freedpeople to the same marriage laws going forward except that no bond was required of them, and gave the General Assembly power to provide for their support. Constitution and Ordinances Adopted by the State Convention of Alabama (Montgomery: Gibson & Whitfield, State Printers, 1865), Ordinance No. 39, p. 63; digital images, Internet Archive (https://archive.org/details/alabama-constitutional-convention-ordinances-1865 : accessed 23 July 2026). The ordinance is reprinted in the front matter of the Revised Code of 1867, at p. 64, among the ordinances and resolutions of the convention of 1865 (pp. 52–68). ↩ ↩
15. Code of 1852, § 1018 (an enslaved person could own no property, and property held by one and unclaimed by the owner was to be sold). That any free person of full capacity could own and convey land, and that a minor could own but not freely convey it, are rules of the received common law; see notes 1 and 5. The disabilities attaching to free people of color are at note 19. On foreign-born owners, Alabama Constitution of 1901, art. I, § 34, and Alabama Constitution of 1875, art. I, § 36, in identical terms (foreigners who are or become bona fide residents to enjoy the same rights of possession, enjoyment, and inheritance of property as native-born citizens). ↩ ↩ ↩
16. Code of 1852, §§ 1033–1054, the article on free persons of color (§ 1033, barred from entering the state; § 1036, barred from retailing; § 1044, barred from preaching without leave; §§ 1045–1054, the provisions on free people of color arriving by vessel), and §§ 1055–1061, barring free negroes from tavern and retail licenses. On inheritance, Tannis v. Doe ex dem. St. Cyre, 21 Ala. 449 (1852), holding that an act of 1832 barred free people of color from inheriting property in Alabama while exempting those who had come into the state before it passed, and that incapacity to hold property could be fixed on a free person of color only by express legislative enactment or necessary implication. The cession and allotment of the Creek (Muscogee) lands proceeded by federal treaty, chiefly the Treaty of Cusseta (1832), and is a federal rather than a state matter; no Alabama code section is cited for it. ↩ ↩
17. Alabama Constitution of 1901, art. X, § 209, providing that the real and personal property of any female, whether acquired before or after marriage, remains her separate estate and is not liable for her husband's debts; the same provision appears verbatim at Alabama Constitution of 1875, art. X, § 6, and entered the Constitution of 1868 to prevent a return to the common-law rule, Peddy v. Montgomery, 345 So. 2d 631 (Ala. 1977); Code of 1923, read in the volume: § 8267 (the wife has full legal capacity to contract as if she were sole, except as otherwise provided by law), §§ 8265–8266 (the husband not liable for her contracts or torts before or after marriage, she remaining liable and suable as if sole), § 8269 (she cannot alienate or mortgage her lands without the assent and concurrence of the husband, manifested by his joining in the conveyance — unless he is non compos mentis, has abandoned her, is a nonresident, or is imprisoned under a conviction for two years or more, in which cases she may convey alone), and § 8272 (husband and wife may contract with each other, subject to the rules governing confidential relations, but the wife shall not directly or indirectly become his surety). These carry Code of 1907, §§ 4490–4497, Code of 1896, §§ 2524–2529, and Code of 1886, §§ 2344–2349, from the act of 28 February 1887. Code of 1940, tit. 34, §§ 65, 67, 70, 71, 73, 74, read in U.S. Women's Bureau, Legal Status of Women: Alabama, nos. 4, 5, and 9. The separate estate was established by statute before the Civil War and carried forward by the constitutions of 1868, 1875, and 1901. ↩
18. Code of 1876, § 2232 (dower reaching all lands of which the husband was seized in fee during the marriage) and § 2234 (release by joining the conveyance, or by a separate instrument executed by her alone afterward). The fuller text is Code of 1923, § 7433, read in the volume: a wife of the age of eighteen years may relinquish her dower by joining her husband in the conveyance, by joining him in a power of attorney to convey, or, after his conveyance, by a deed or other separate instrument executed by her alone, her signature in either case witnessed or acknowledged as the Code requires for other conveyances. The section carries Code of 1907, § 3818, Code of 1896, § 1509, Code of 1886, § 1894, Code of 1876, § 2234, Revised Code of 1867, § 1626, and Code of 1852, § 1356. Code of 1940, tit. 34, § 46, read in U.S. Women's Bureau, Legal Status of Women: Alabama, nos. 5 and 15. ↩
19. Alabama Constitution of 1901, art. X, § 205, exempting the homestead from sale on execution and providing that a mortgage or other alienation of it by a married owner is not valid without the voluntary signature and assent of the wife; the neighboring sections cover the exemption after the owner's death — § 206 during the minority of his children and § 208 where he leaves a widow but no children, with § 204 exempting personal property to the value of one thousand dollars and § 210 requiring that a written waiver of exemption in realty be signed by both husband and wife and attested by one witness. The 1901 article restates Alabama Constitution of 1875, art. X, where § 1 is the personal-property exemption, § 2 the homestead exemption carrying the identical requirement of the wife's voluntary signature and assent, § 3 the exemption during the children's minority, § 5 the widow-without-children provision, and § 7 the waiver. The statutory text is Code of 1923, § 7883, read in the volume: no mortgage, deed, or other conveyance of the homestead by a married man is valid without the voluntary signature and assent of the wife, which must be shown by her examination separate and apart from him before an officer authorized to take acknowledgments, and by that officer's certificate on or attached to the instrument, substantially in the form for homestead acknowledgment given at § 7696; the section carries Code of 1907, § 4161, Code of 1896, § 2034, Code of 1886, § 2508, and Code of 1876, § 2822. The personal-property exemption of $1,000, with wearing apparel, family portraits, and family books, is § 7886. See also Code of 1940, tit. 7, § 625, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 3; Thompson v. New England Mortgage Security Co., 110 Ala. 400, 18 So. 315 (1895). ↩
20. Code of 1876, § 2145 (a conveyance of land to be written or printed, signed by the grantor at its foot, and attested by one witness, or by two able to write where the grantor cannot write his name, his name then being written for him with the words "his mark" against it) and § 2146 (acknowledgment operating as compliance with the requirement of witnesses); § 2161 (a married woman's conveyance of real property or of stocks inoperative unless attested by two witnesses or acknowledged); and § 2234 (a wife relinquishing dower by joining her husband's conveyance in the presence of two attesting witnesses). No age is fixed for a witness. The same rules are stated a generation earlier at Code of 1852, § 1265 (all persons aged twenty-one and not under legal incapacity may alien their lands, or any interest in them, by writing or by will), § 1266 (the conveyance written or printed and signed at its foot by the party or by his agent having written authority, or his name written for him with the words "his mark" against it, attested by one witness or, where the party cannot write, by two witnesses who are themselves able to write and who write their names as witnesses), and § 1267 (acknowledgment operating as compliance with the requirement of witnesses). ↩ ↩ ↩
21. Code of 1923, § 7428, headed "Extent of widow's dower interest," read in the volume: one-half where the husband left no lineal descendants and the estate was solvent, one-third where in that case it was insolvent, and one-third where there were lineal descendants whether the estate was solvent or not. The section prints its own descent, carrying Code of 1907, § 3813, Code of 1896, § 1505, Code of 1886, § 1893, Code of 1876, § 2233, Revised Code of 1867, § 1625, and Code of 1852, § 1355, with the rule traced in the note to Aikin's Digest, p. 132, § 2, and Clay's Digest, p. 172, § 3. On the offset of the wife's separate estate, Code of 1923, §§ 7429–7430, carrying Code of 1876, §§ 2715, 2716, which value the dower interest at seven years' rent for the comparison. Code of 1940, tit. 34, §§ 40–43, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 15. ↩
22. Code of 1923, § 7374, headed "Distribution of personal estate," read in the volume: the personal estate is distributed as the real estate and by the same rules, except that the widow takes all of it where there are no children, one-half where there is but one child, a child's part where there are more than one and not more than four, and one-fifth where there are more than four. The section carries Code of 1907, § 3763, Code of 1896, § 1462, Code of 1886, § 1924, Code of 1876, § 2261, Revised Code of 1867, § 1897, and Code of 1852, § 1581, with the rule traced in the note to Aikin's Digest, p. 151, § 1. For the descent of the land alongside it, Code of 1923, § 7365. Code of 1940, tit. 16, § 10, read in U.S. Women's Bureau, Legal Status of Women: Alabama, nos. 15 and 27. ↩
23. Code of 1923, § 7376, headed "Husband's distributive share of the wife's estate," read in the volume: where a married woman having a separate estate dies intestate leaving a husband living, he takes one-half of the personalty of that separate estate absolutely and the use of the realty during his life. The section carries Code of 1907, § 3765, Code of 1896, § 2534, Code of 1886, § 2353, Code of 1876, § 2714, Revised Code of 1867, § 2379, and Code of 1852, § 1990, and its notes record that common-law curtesy was abolished and replaced by this statutory estate in the nature of curtesy. Code of 1940, tit. 16, §§ 10, 12, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 15. ↩
24. Code of 1923, § 7365, subsec. 6, read in the volume: where the intestate leaves no children or their descendants, no father or mother, and no brothers or sisters or their descendants, the whole goes to the husband or wife. The section carries Code of 1907, § 3754, Code of 1896, § 1453, Code of 1886, § 1915, Code of 1876, § 2252, Revised Code of 1867, § 1888, and Code of 1852, § 1572. Code of 1940, tit. 16, § 1, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 27. ↩
25. Code of 1923, read in the volume: § 7437 (the widow may retain possession of the dwelling house where her husband most usually resided next before his death, with the appurtenant offices and buildings and the plantation connected with it, until her dower is assigned, free from rent), carrying Code of 1907, § 3824, Code of 1896, § 1515, Code of 1886, § 1900, Code of 1876, § 2238, Revised Code of 1867, § 1630, and Code of 1852, § 1359; and § 10593 (the widow may in all cases dissent from her husband's will and take her dower and the share of the personal estate she would have had on intestacy), carrying Code of 1907, § 6168, Code of 1896, § 4259, Code of 1886, § 1963, Code of 1876, § 2292, Revised Code of 1867, § 1928, and Code of 1852, § 1609, with § 10595 giving a widow of eighteen the capacity to dissent as if she were twenty-one and § 10596 providing how the dissent is made where she is insane, under eighteen, or dead. Code of 1940, tit. 34, § 50; tit. 7, §§ 664, 665 (twelve months' provisions, family clothing and furniture, and $1,000 in personal property exempt from debts); tit. 61, § 18; read in U.S. Women's Bureau, Legal Status of Women: Alabama, nos. 16 and 17; Dorsey v. Dorsey, 224 Ala. 496, 140 So. 540 (1932). On the wartime suspension, Ordinance No. 36, "Concerning dower, and the limitation as to the claim for the same," adopted 29 September 1865, § 1, printed in the front matter of the Revised Code of 1867 at p. 63. ↩ ↩
26. Code of 1940, tit. 21, §§ 3, 4, read in U.S. Women's Bureau, Legal Status of Women: Alabama, nos. 25 and 26; and Code of 1923, §§ 8208–8209, read in the volume, requiring the guardian or his personal representative to file in the probate court a full account of the guardianship with the vouchers, verified by affidavit, the court appointing a guardian ad litem for the ward and setting a day for the settlement on ten days' notice to the ward if he is a resident and has come of age or been relieved of the disabilities of nonage; these carry Code of 1907, §§ 4435, 4436, Code of 1896, §§ 2345, 2346, and Code of 1886, §§ 2460, 2461. Carried from Code of 1852, § 2014 (a guardian to be appointed where a minor with a father living has an estate in his own right, the father preferred if suitable and willing to give bond, and no such guardian to control the ward's person during the life of the father, or of the mother where the ward is a female or a male under fourteen), § 2015 (a guardian named by the father's will if the right is claimed within six months after probate, the mother keeping custody of the ward's person until it is fourteen), and § 2018 (bond payable to the judge of probate in twice the supposed value of the ward's estate). ↩ ↩
27. Code of 1876, § 2749 (a minor over fourteen may nominate a suitable person as his guardian, in person or by a nomination certified to the probate judge by a justice of the peace) and § 2750 (a guardian must be appointed for a minor having a father living and an estate of his own, the father entitled to a preference if suitable and willing to give bond); carried from Code of 1852, § 2013 (a minor over fourteen may nominate a suitable person as guardian, in person, or the nomination may be certified to the probate judge by any justice of the peace), through Revised Code of 1867, §§ 2409, 2410. Guardianship ran to the ward's majority at 21, when the guardian made a final settlement. ↩ ↩
28. Code of 1876, § 1734 (binding out to 21 if a male and 18 if a female), § 1735 (the master's duties), and § 1737 (the preference given to the former owner of a freedman's child); carried from Revised Code of 1867, §§ 1450, 1451, 1454. ↩
29. Code of 1923, § 7371, read in the volume: every illegitimate child is considered the heir of his mother and inherits her estate, in whole or in part as the case may be, in like manner as if born in lawful wedlock; with § 7372, giving the mother, or her kindred on the mother's side, the inheritance from such a child in default of the child's own descendants. The two carry Code of 1907, §§ 3760, 3761, Code of 1896, §§ 1459, 1460, Code of 1886, §§ 1921, 1922, Code of 1876, §§ 2258, 2259, Revised Code of 1867, §§ 1894, 1895, and Code of 1852, §§ 1578, 1579, and the rule is traced in the note to Aikin's Digest, p. 129, § 4, and Clay's Digest, p. 168, § 4. Code of 1940, tit. 16, § 8, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 29; Ward v. Mathews, 122 Ala. 188, 25 So. 50 (1899). ↩
30. Code of 1940, tit. 6, §§ 1–24; the father could alternatively be reached under the desertion-and-nonsupport statute, tit. 34, §§ 89–104; both read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 28. For the earlier rule, Code of 1852, § 3799 (the reputed father arrested on the mother's complaint), § 3808 (on a finding against him, bond with security in the sum of one thousand dollars payable to the State, conditioned to pay such sum as the court prescribes, not exceeding fifty dollars a year, on the first Monday in January in each year for ten years, to the judge of probate of the county for the support and education of the child, the bond to be recorded), § 3809 (judgment and imprisonment for one year on failure to give the bond), and § 3818 (the bond vacated by the death of the child or by the marriage of the parents). The same chapter stood in Code of 1923, §§ 3416 (complaint on oath by a single woman pregnant with or delivered of a bastard child, before a justice of the county, on which a warrant issues), 3418 (examination, and bond to appear at court on probable cause), 3422 (the state and the accused the parties to the record, and no proceeding to be instituted after one year from the birth unless the defendant has in the meanwhile acknowledged or supported the child), 3427 (on conviction, costs and a bond of one thousand dollars payable to the state, conditioned to pay not more than one hundred dollars a year for ten years to the judge of probate), and 3428 (on failure to give the bond, judgment and hard labor for the county for a year), read in the volume; the annual maximum thus doubled between 1852 and 1923 while the ten-year term held. The notes give the genesis of the chapter as Toulmin's Digest, pp. 64–66, Aikin's Digest, pp. 76–78, § 1, and Clay's Digest, pp. 133–135, § 1. ↩ ↩
31. Code of 1876, § 2742 (legitimation by the marriage of the mother and reputed father with the father's recognition) and § 2743 (legitimation by the father's written declaration, attested by two witnesses and acknowledged before and recorded by the probate judge); carried from Revised Code of 1867, §§ 2404, 2405. A private act of the legislature was the third route until Alabama Constitution of 1901, art. IV, § 104, cl. 4, forbade any special, private, or local law providing for the adoption or legitimizing of a child; cl. 2 of the same section likewise closed the private-act route to relieving a minor of the disabilities of nonage. ↩
32. Code of 1876, § 2274 (every person of the age of twenty-one, of sound mind, may devise land) and § 2280 (all persons over the age of eighteen, of sound mind, and no others, may bequeath personal property); § 2294 (no will effectual to pass real or personal property unless written, signed by the testator or by another in his presence and at his direction, and attested by at least two witnesses subscribing in his presence), with § 2295 (witnesses competent when they attest, later incompetency not affecting probate). These carry back to Revised Code of 1867, §§ 1910, 1916, 1930, and forward to Code of 1886, §§ 1945, 1951. ↩ ↩
33. Code of 1876, § 2282 (a will disposing of the testator's whole estate revoked where he marries and has issue of the marriage living at his death) and § 2283 (the marriage of a woman revoking a will made while she was unmarried), the two propositions sitting in separate sections; § 2284 covers a child born after the will. The woman's-marriage rule is Code of 1923, § 10584, read in the volume, carrying Code of 1907, § 6159, Code of 1896, § 4250, Code of 1886, § 1954, Code of 1876, § 2283, Revised Code of 1867, § 1919, and Code of 1852, § 1598. Code of 1940, tit. 61, § 9, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 14. ↩
34. Code of 1876, § 2340 (disqualification of a person under 21, one convicted of an infamous crime, and one incompetent from intemperance, improvidence, or want of understanding), §§ 2341, 2343 (administration with the will annexed until the disability is removed), and § 2342 (a married executrix needing her husband's written consent, he becoming jointly responsible). ↩ ↩
35. Clay's Digest, title "Taxes — Subjects and Rate of Taxation," § 10 (ten cents for every slave not exceeding ten years old and fifty cents for every slave over ten and under fifty, those valueless from disease or otherwise not liable; one dollar for all free negroes and mulattoes over twenty and under sixty, with the females of such a family not taxed where the head of it paid more than one dollar on real or personal property; and twenty-five cents for all white males over twenty-one and under forty-five), § 3 (free persons exempt by bodily infirmity from working on the public roads also exempt from the poll tax, and free persons of color who have attained sixty not liable for it), § 4 (slaves lunatic, blind, insane, or from any other cause entirely unprofitable to their owners not subject to taxation), and §§ 5–6 (Revolutionary soldiers exempt, on the party's own oath before a justice of the peace with a neighbor's testimony to his character). The revenue acts between statehood in 1819 and this schedule have not been verified against the volumes for this guide. ↩ ↩
36. John G. Aikin, comp., A Digest of the Laws of the State of Alabama (Tuskaloosa, Ala.: D. Woodruff; Mobile: S. Smith, 1836), revenue title, read in the digitized volume: fifteen cents for every slave not exceeding ten years old and fifty-six and a quarter cents for each over ten and under sixty; one dollar for every free male negro and mulatto over twenty-one; and twenty-five cents for every free white male above twenty-one and not exceeding forty-five. A second schedule in the same volume sets the corresponding rates at eight cents, twenty-eight cents, fifty cents, and twelve and a half cents. The exemption of free persons of color at sixty appears here as it does in Clay's Digest. Digital images, Internet Archive (https://archive.org/details/alabama-code-1836 : accessed 27 July 2026). ↩
37. Code of 1852, § 391: fifty cents on every white male inhabitant between 21 and 45; two dollars on every free negro male between 21 and 50; one dollar on every free negro female between 21 and 45; and a graduated per-head tax on enslaved people by age, from twenty-five cents under five years to a peak of one dollar and ten cents between fifteen and thirty, tapering to age fifty, payable by the owner. Real estate and other property were assessed ad valorem in the same section. ↩
38. Alabama Constitution of 1875, art. XI, § 1, requiring all property taxes to be assessed in exact proportion to value and authorizing a poll tax not exceeding one dollar and fifty cents on each poll, applied exclusively in aid of the public school fund of the county paying it; and art. XIII, § 4, directing the general assembly to provide for an annual poll tax on the same terms. ↩
39. Alabama Constitution of 1901, art. VIII, § 194 (a poll tax of one dollar and fifty cents on each male inhabitant over twenty-one and under forty-five not then exempt by law, the legislature authorized to raise the maximum age to not more than sixty; due 1 October, delinquent the following 1 February); § 178 (payment on or before 1 February preceding the election of all poll taxes due for 1901 and every subsequent year as a condition of voting); and art. XIV, § 259 (poll taxes applied to the public schools of the county where collected). The tax was amended in December 1953 to be cumulative for only two years, and struck down as a condition of voting in United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966), consistent with the Twenty-fourth Amendment (1964) and Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). ↩ ↩
40. Code of 1852, § 3436 (the sheriff to obtain biennially a list of the householders and freeholders residing in the county, from which the sheriff, the judge of the probate court, and the clerk of the circuit court select those thought competent to discharge the duties of grand and petit jurors with honesty, impartiality, and intelligence), § 3438 (only persons esteemed in the community for integrity, fair character, and sound judgment), § 3439 (no person under twenty-one or above sixty, none afflicted with a permanent disease, no habitual drunkard, and none who cannot read and write), § 3440 (the exempt occupations), and § 3441 (the list, giving each person's Christian name and surname, place of residence, and occupation if known, filed in the office of the judge of probate within ten days). The same qualifications governed the venire on the trial of an enslaved person, § 3323. ↩ ↩
41. Code of 1923, § 8603, read in the volume: the jury commission places on the jury roll and in the jury box the names of all male citizens of the county generally reputed honest and intelligent and esteemed in the community for integrity, good character, and sound judgment, excluding any person under twenty-one or over sixty-five, any habitual drunkard, any person unfit through permanent disease or physical weakness, any person who cannot read English, and any person ever convicted of an offense involving moral turpitude; a man who cannot read English but has every other qualification may be placed on the roll if he is a freeholder or householder. The section carries Code of 1907, § 7247, and the marginal note gives the act of 31 August 1909, p. 305, § 11. The same section is quoted in Norris v. Alabama, 294 U.S. 587 (1935). Code of 1940, tit. 30, § 21, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 32. ↩
42. White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966); the amendment of the jury statute is discussed in Carter v. Jury Commission of Greene County, 396 U.S. 320, 327 (1970); and see Hoyt v. Florida, 368 U.S. 57, 62 n.5 (1961). ↩
43. Norris v. Alabama, 294 U.S. 587 (1935). ↩
44. The common-law ages of criminal responsibility were received with the common law; see note 1. General Acts of Alabama, 1907, No. 340 (H. 30), "To define who are delinquent children and to provide for their arrest, care and reformation," p. 442, § 1 (a delinquent child defined as one under fourteen), § 2 (jurisdiction in the chancery court, any court having equity powers, and police courts able to try misdemeanants), and § 3 (the juvenile docket, the separate minute book, and the closed hearing); digital images, Internet Archive (https://archive.org/details/alabama-acts-1907_general : accessed 23 July 2026). ↩
45. General Acts of Alabama, 1919, No. 146 (S. 68), relating to dependent, neglected, or delinquent children in counties having a population of at least 150,000 by the last federal census, and creating juvenile courts in such counties: § 7 (a male child under sixteen and a female child under eighteen) and § 12 (transfer of such a child from any other magistrate or court); digital images, Internet Archive (https://archive.org/details/alabama-acts-1919_general : accessed 23 July 2026). On the Juvenile Court of Jefferson County, established 1911, see Alabama Council on Crime and Delinquency, "Our Story," ACCD (https://accdonline.org/our-story/ : accessed 23 July 2026). ↩
46. Gordon, Rankin & Co. v. Tweedy, 71 Ala. 202 (1881); Code of 1923, § 5639, read in the volume: the husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so. Code of 1940, tit. 15, § 310, read in U.S. Women's Bureau, Legal Status of Women: Alabama, no. 13; McCoy v. State, 221 Ala. 466, 129 So. 21 (1930). ↩
47. Code of 1852, § 2276: negroes, mulattoes, Indians, and persons of mixed blood descended from negro or Indian ancestors to the third generation inclusive, whether bond or free, were not competent witnesses in any cause, civil or criminal, except for or against each other. The Thirteenth and Fourteenth Amendments and the federal Civil Rights Act of 1866 removed the disability. ↩