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Taming Alabama

THE UNIVERSITY OF ALABAMA PRESS

Chapter One

Introduction

Harry Toulmin was neither the first nor the only territorial judge to hold court in the future state of Alabama, but his was the most significant record. Toulmin was appointed in 1804 by President Thomas Jefferson to preside over courts in Washington County, Mississippi Territory, a sprawling district of settlements north of Spanish-held Mobile along the Tombigbee, Tensaw, and Alabama rivers. Surrounded by the tribal lands of Creek and Choctaw Indians, this eastern province of Mississippi was isolated and undeveloped; its few officials were hampered by the distances they had to cover. Toulmin continued in his office after the Alabama Territory was carved out, and in all he served from 1804-1819. As late as 1815, he complained that his authority extended over an area that, by his generous estimation, was 340 miles long and 330 miles wide.

Thinking of the early history of Alabama, one easily peoples the political landscape with Jacksonians. This is our default vision, in part, because of the long ascendancy of the Democrats prior to the Civil War. But it is also true that writers of the late antebellum years, many of whom were ironical Whiggish lawyers, have given us such iconic images of frontier raffishness (Simon Suggs and his ilk) that we think one frontier must be like another. Harry Toulmin's career as a territorial judge, however, reminds us that the Jeffersonian southwest was home to several parallel universes, of which the one made by American slaveholders was a likely (but not a certain) winner.

The friction of cultures, races, and economic structures turned Toulmin, who was fundamentally a republican jurist and intellectual, into a borderlands diplomat as much concerned with preventing war as he was in quelling domestic disorders. Society in the Tensaw-Tombigbee districts was too amorphous to be easily tamed-much less brought to that ordered condition in which certain truths seem self-evident. Yet Toulmin's legacy is twofold: first, he was arguably responsible for the tenuous years of peace prior to the outbreak of the "Redstick" war in 1813; during this time the populous, economically strong United states gathered its strength. Second and most important, he published a significant body of compiled statutes, proto-codes, and notably his Alabama "digest" of 1823. Of these it can be argued that the pen is truly mightier than the sword. Toulmin's legal successors would build upon his work in their own efforts to further the rule of law.

From the English Enlightenment to the Bluegrass State

Toulmin's early life had prepared him for vicissitudes. Born in 1766 at Taunton, England, he was the son of Joshua Toulmin, a Unitarian minister and a friend of the famous scientist and dissenting clergyman Joseph Priestley. Though he received little formal education, Harry Toulmin drew both information and a love of knowledge from the men of his father's circle-even more, perhaps, from the works he read in a bookstore operated by his mother, Jane Toulmin. Like his father, the young Toulmin became a Unitarian minister, serving two congregations in Lancashire from 1786 to 1793.

The times were dangerous for Englishmen who were either religious or political nonconformists, and Priestley and the Toulmins were both. Indeed they were supporters of the French Revolution, men who applauded the fall of the Bastille, believed in freedom of thought, and hoped that reason could guide humanity toward a state of republican equality. The English government and the Church of England viewed such ideas as a serious threat to the status quo, almost treason; as a result, the authorities did little to prevent violence against Unitarians and republicans. On the second anniversary of Bastille Day (July 14, 1791) a Birmingham mob burned down Priestley's house, destroying his library, laboratory, and personal papers. Priestley began to plan a move to America, as did Harry Toulmin after "a burning effigy of the radical spokesman Thomas Paine disturbed the Joshua Toulmin family doorstep." Toulmin's investigations led him to believe that the newly created state of Kentucky was an ideal destination-in fact Toulmin began to write works promoting immigration there before he ever took ship. In the end, with financial support from his congregation, he sailed to America in the summer of 1793.

Arriving in Virginia, he won the good will of James Madison and Thomas Jefferson (who was a great admirer of Priestley). The virginians were pleased with Toulmin's political enthusiasms; Jefferson would describe him as a "person of understanding, of science, and of great worth," adding that the young Englishman was "a pure and zealous republican." Armed with encouragement and letters of recommendation Toulmin and his family (he had sailed with his wife, Ann, and four children) traveled to Kentucky. There he made what one scholar calls a "complete redirection," deciding to exchange the life of a clergyman for that of a scholar and teacher. He may have been concerned that a preacher's salary would not bring in enough money. Or perhaps-now that he was away from the presence and expectations of his parents-he may have caught something of the ambitious, worldly spirit of the West.

In February 1794 Toulmin was elected president of Transylvania seminary in Lexington, Kentucky. There he established a demanding curriculum of languages, science, mathematics, philosophy, and political studies, which he taught to a growing student body. In these years Lexington presented a scene of intellectual and political ferment, with ongoing discussions of republicanism and deism. Thomas Paine's anticlerical Age of Reason was available in bookstores and was the object of much discussion, pro and con. It was an atmosphere in which Toulmin might have become a patriarch of Kentucky educators. Yet from his first days at Transylvania he was closely watched by a Presbyterian faction of the school's board of trustees, who viewed him as a heretic and had opposed his election, and by federalists in the Kentucky legislature. The continuing intervention of these groups in college affairs drove Toulmin to resign in April 1796.

Law and Politics in the West

As the academic door closed, a political door opened. Shortly after his resignation, Toulmin accepted appointment as Kentucky's secretary of state. He would hold this post for eight years during the administration of Governor James Garrard, a Jeffersonian Republican. One of the secretary's duties was to certify acts of the legislature, and as such Toulmin signed Kentucky's Resolutions of November 1798-by which Kentucky nullified the Federalist-inspired Alien and sedition Acts. In the intervals of his official work he studied law and sold sets of Blackstone's Commentaries.

The knowledge he thus gained stood him in good stead in 1801-1802, when the legislature provided for the appointment of two "revisors" of Kentucky's criminal law. The latter was derived from Virginia law, which in turn was an offshoot of English law-all modified by the statutes and case law of the new state. Toulmin (with attorney James Blair) was appointed to perform the revision and to "collect from the English reporters and from all such other writers on the criminal law as they think proper." The result, a minor classic of arrangement and codification, was the three- volume A Review of the Criminal Law of the Commonwealth of Kentucky, published 1804-1806. These books represent Toulmin's first steps as a scholarly lawgiver or (as he would later be called) "frontier Justinian."

Toulmin and Blair laid out the criminal law in a manner similar to but not slavishly dependent on Blackstone. They moved from crimes against individuals (their "persons," their "characters") to those against property, subsequently taking up offenses against public safety, the "public peace," the justice system, religion and morality, and the "public trade" (i.e., usury and related crimes). They provided disquisitions on trial procedure, evidence, and indictments, including diverse examples intended to serve as forms. Unlike Blackstone they stocked their volumes with lengthy verbatim excerpts from English reporters. Yet like Blackstone, Toulmin and Blair wrote in clear, even conversational prose.

The question of style was more than an academic matter to Toulmin, who was a Jeffersonian Republican and no partisan of "technical or cant" terminology. In a sense he and Blair had no choice, for the legislature had instructed them to use "no abbreviations, nor any Latin or French phrases." This was bound to cause some difficulties in dealing with long-established names of actions; but Toulmin met the difficulty by using language designed to provide a "general conception of the nature of the writ alluded to." He and Blair claimed to offer no opinion on the question of simplified language. But while Toulmin claimed "the same latitude as is usually given to our professional men," he admitted "that the obvious meaning of some of the provisions of our constitutions and laws is very different to a plain man, from that which may be placed upon them through the artificial reasoning and subtle refinement of technical men."

Two goals-to state the law plainly and to make it accessible in a new country lacking a well-established legal profession-would provide the justification for most of Toulmin's subsequent writing. In the meantime he dreamed of making money through such works; thus he began to compile a self-help lawbook, which he published in 1806 through Mathew Carey of Philadelphia, one of America's first mass-distribution publishing houses. This pocket-sized book was the ambitiously titled The Clerk's Magazine and American Conveyancer's Assistant: Being a Collection Adapted to the United States of the Most Approved Precedents. The book lived up to its title; in just over three hundred pages it delivered 286 forms patterned on those used in England, New York, Massachusetts, Connecticut, new Hampshire, Rhode Island, Pennsylvania, Virginia, Maryland, and (of course) Kentucky. Americans needed guidance, Toulmin wrote, in carrying out simple transactions, for they lived in "a country where property is in a state of incessant fluctuation" and where ordinary citizens carry on more "mercantile intercourse" than anywhere else on earth-with the sad result that "law-suits are multiplied to a most astonishing extent."

If Toulmin seemed to have the frontier on his mind it is not surprising. Prior to the publication of Clerk's Magazine he had moved to a neighborhood far more isolated than Lexington, Kentucky. In May 1804 he had written to James Madison, asking for appointment to the recently created "Tombigbee" judgeship in Washington County of the Mississippi Territory. While waiting, he delivered a July 4th address at Frankfort, defending Jefferson's acquisition of Louisiana and portraying in darkest terms the ruin that might have followed had the French or English aggressively colonized the new territory. Fortunately, he said, a "republican" administration had carried the day through well-informed diplomacy, a method preferable to either force or guile-both of which, Toulmin implied, were favored by partisans of federalism. Thus Toulmin laid out the pacific principles he would apply as a federal official serving on an unstable borderland. He was optimistic about the future of republican institutions; yet he understood the turbulence of frontier politics. Certainly he was no supporter of absolute democracy. In the course of his oration he had noted that "Some opposition to the will of the majority may be necessary for the purpose of keeping them within the bounds of reason, of justice, and of constituency."

Toulmin's appointment came through in November. By the summer of 1805 he had brought his family down the Mississippi River by flatboat, then by sailing ship from New Orleans to Mobile. From that Spanish-held port they journeyed upriver to fort Stoddart, an American military post near the confluence of the Tombigbee and Alabama rivers in Washington County. There they were just above the thirty-first parallel, the northern border of Spanish West Florida. The Toulmins had arrived at a nerve center of controversy, an outpost of a vast territory populated sparsely by native Americans, white settlers (of Spanish, French, British, and American descent), and African Americans. Toulmin's immediate predecessor described the population in less than enthusiastic tones as "illiterate, wild and savage, of depraved morals, unworthy of public confidence or private esteem." At least one faction of white settlers-led by John Caller, a member of an obstreperous frontier family-had unsuccessfully proposed their own candidate for the judgeship.

Law and Diplomacy: flush Times in the old southwest

Toulmin's responsibilities in the Mississippi and Alabama territories were varied; several had little to do with holding court. From 1806 to 1810 he "contracted to operate a mail route from Fort Stoddart to Natchez." At intervals prior to the (impatiently and intemperately awaited) American military occupation of Mobile in 1813, he represented American citizens in their disputes with Spanish officials. The latter controlled the mouth of the district's extensive river system, routinely charging fees as high as 12 percent of the value of crops and goods, and sometimes shutting off trade altogether. As the highest-ranking civilian in his jurisdiction, he also presided over public functions and entertained dignitaries. In 1817 he would welcome French settlers, the beneficiaries of a federal land grant who came with the intention of establishing a "vine and olive Colony." Year after year he worked at routine judicial tasks: presiding over criminal cases, addressing grand juries, administering oaths, and taking depositions. Certainly he heard many cases involving disputed titles to land, a type of litigation prevalent in frontier communities. Occasionally he referred his colleagues in the Natchez district to such points of law as "whether a writ of error could stop an execut[io]n" upon property.

Toulmin's commissions from Natchez included one task common to every phase of his mature career: namely, that he compile the young territory's laws. The product of this assignment, his 1807 Statutes of the Mississippi Territory, revealed a great deal about both Toulmin's understanding of his work and the varieties of legal business on the borderlands. Clearly, he was determined to blaze a clear path for future judges, for he devoted more than 200 pages to laws and statutes pertaining to judicial proceedings, including such detail-oriented subject headings as "Demurrers, when frivolous" as well as an interesting section on the licensing and conduct of attorneys. The work is otherwise marked by its attention to land laws and criminal laws, especially the latter. Toulmin devoted more than eighty pages to "Crimes and the Public Police" and another forty to crimes punishable by the United states. Of the federal matters singled out for attention, several quasi-military offenses stand out-such as treason, manslaughter in a fort, violating a safe conduct or assaulting a foreign minister, accepting a commission from a foreign power, launching either a military expedition or a ship against a foreign government, confederacy to become pirates, burning a ship at sea, or participating in the international slave trade.

(Continues...)

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Excerpted from Taming Alabama by Paul M. Pruitt Jr. Copyright © 2010 by Paul M. Pruitt Jr.. Excerpted by permission.
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