October/November 2009 THE ABBHS NEWSLETTER ALABAMA BENCH AND BAR HISTORICAL SOCIETY THE SUPREME COURT OF ALABAMA - ITS CAHABA BEGINNING, 1820-1825* BY DEAN DANIEL J. MEADOR One of the Alabama Territorial Legislature’s 1819 Acts specified that ses- sions of the Supreme Court be held twice a year in Cahaba, the new state capital, beginning on the second Monday in May and the second Monday in November. Pursuant to that Act, four of the five circuit judges convened in Cahaba on May 8, 1820, for the first sitting of the Supreme Court of Alabama. As the state General Assembly did not meet until the following November, and Governor William Wyatt Bibb was ill, this Court session was the first official governmental activity in the new state capital. The five circuit judges who initially constituted the Supreme Court of Ala- bama were: Abner Smith Lipscomb (First Circuit); Reuben Saffold (Second Circuit); Henry Young Webb (Third Circuit); Richard Ellis (Fourth Circuit); and Clement Comer Clay (Fifth Circuit), who was selected by the judges to be chief justice. In 1821, the General Assembly created a Sixth Circuit, and the legislature selected Anderson Crenshaw. Before the Court left Cahaba, Clay resigned and was replaced as chief justice by Lipscomb while Henry Minor replaced Clay. In 1823, Henry Y. Webb died and the General Assembly elected John Gayle to take his place in the Supreme Court’s membership. These men came to Alabama from the Eastern Sea- board South, only half had the advantage of a college education, and six had “read law” in the states from which they came. Half of these judges had been members of the 1819 constitutional convention. During the six years the Supreme Court sat in Cahaba, it met for a total of eleven terms. Each term lasted no more than a few weeks. Those judges must have been extraordinarily busy, because, in addition to those Cahaba sittings, they Justice Anderson Crenshaw were obligated to hold circuit court in each county in their circuits twice a year. The Court probably held its initial meeting at the residence of William Pye, because the The early Court’s most prolific writer. legislature appropriated $20 to reimburse him for the Court’s use of his premises. It is not known where the Court held other meetings, perhaps the capitol when the legislature was not in session. With no precedents of its own on which to rely, the judges carried forth Inside This Issue: the legal systems in the original thirteen states, which were descendants of the English common law and equity, and relied on decisions of the highest courts of Executive Secretary’s Message 2 other states with published reports. There was no public law library or court library. Each judge functioned in his own circuit and must have been dependent on his 2nd Annual Meeting 4 own books. Each judge probably owned a copy of Blackstone’s Commentaries. The work of the Supreme Court during its Cahaba years was largely con- 5, 6 Alabama Legal Milestones fined to civil cases. The Court decided a total of 214 cases, found in Minor’s Re- Jabez Curry Comes Home 7 ports, the first volume of Alabama Supreme Court Reports. Commercial transac- tions were often involved. It held in Humphrey v. State, Minor 64 (1822) that un- Courts of Appeal Celebrate 40th! 9, 10 der its governing statute it had no jurisdiction to entertain appeals in criminal cases; however, by statute the Court was authorized to decide questions of law in How Hollywood Influenced an 11 criminal cases that were referred to it by a circuit judge. Many of the Court’s opin- Alabama Jury (Continued on page 3) Preserving the History of Alabama October /November 2009 Page 2 Executive Director’s Column I want to thank our membership for making our First Annual meeting in April in Birmingham such a success. It marked the first time our member- ship was able to convene to share our interests by having the opportu- nity to hear Sheryll Cashin, author of The Agitator’s Daughter and Georgetown University law professor, share her story and memories of a tumultuous time in Alabama history. Sheryll went to Montgomery the BOARD OF DIRECTORS following day where ABBHS sponsored her at the Alabama Book Festival. For those of you who purchased an autographed copy of the book, I Tim Lewis know you discovered how interesting it was to follow Sheryll on her jour- President ney as she researched her family, especially the story of her great- grandfather, Herschel V. Cashin, using the resources of libraries, family Rebecca Jane Garrett Executive Director letters, and personal interviews. To me, that was the most important part of what she wrote and talked about because it is the message and mis- sion of ABBHS to preserve the legal history and stories of Alabama. Leah Rawls Atkins Equally important, because of both venues, the Annual meeting and the Alabama Book Festival, gained the ABBHS some new members. Several Jonathan Bass ABBHS members brought guests to the luncheon that then joined. Since we sent out our debut brochure in May 2008, the bulk of our member- Hon. Quentin Brown ship enrolled through the summer. Accordingly, I have been working on Fred D. Gray renewals this past summer. If for some reason, you have not received an email or a renewal card in the mail, just use the membership card en- Hon. Sonny Hornsby closed in this newsletter as your renewal form. And, if you have renewed, take the card and invite someone to join—a law partner, a relative, or a Lynne B. Kitchens friend who likes history. Share this newsletter, and others will under- stand a little more about the Alabama Bench and Bar Historical Society. Sandra Holston Lewis And, if they ask about what other things we do besides the newsletter, tell them about Jan Crawford Greenburg or Sheryll Cashin. Even more William Dudley Melton exciting, tell them about our new publication project with the Alabama Jim Noles State Bar—Pat Rumore’s book From Power to Service: The Story of Ala- bama Lawyers, which we are all eagerly awaiting. Also, the ABBHS has Edward Pattillo access to people in our membership and on our Board who can speak at local Bar associations and local historical societies. Following the pres- Sam Rumore entation/speech, whether it is about the first women lawyers in Alabama, or the first black lawyers in the state, or a case of note, an invitation to Fred Simpson join ABBHS is always extended! William E. Smith Jane Garrett Page 3 October /November 2009 The Supreme Court of Alabama: Its Cahaba Beginning (Continued from page 1) ions were concerned with technical common law pleading points, and the judges showed themselves to be well-versed in that lore. A case with a contemporary ring was Brahan and Atwood v. Ragland, Minor 85 (1822). The question there was whether “reasonableness” in the giving of notice to an indorser was a question of fact for the jury or one of law for the court. The Court determined that the answer depended on whether custom in the community had established a settled practice as to what was “reasonable.” On examining English authorities, the Court found that in London, custom had settled the matter and the question was for the court. In Alabama, however, a recently-settled and sparsely-inhabited state, no such custom had been established and thus the question was one of fact for the jury. These law-fact distinctions come up often in Ameri- can courts today. The analysis in the 1822 Alabama opinion is still useful. Many of the Court’s reported decisions are shown as being “By the court,” without identification of author. But many do have identified authors. During those Cahaba years, Crenshaw wrote the most majority opinions—48 in all. Saffold was next with 42, then Lipscomb with 38, Minor 28, Clay 25, Gayle 9, Ellis 8, Webb 1. Crenshaw, with 7 dissenting opinions, was also the leading dissenter. The only other dissenters were Clay, Minor, and Webb, with one dissenting opinion each. With three concurring opinions, Crenshaw also lead in that regard. Ellis, Lipscomb, and Gayle wrote one concurring opinion each. In one case, Henry and Winston v. Thompson, Minor 209 (1824), every judge wrote separately; there was no majority opinion. From this record, it can be seen that Crenshaw was clearly the most prolific opin- ion writer, even though he did not join the Court until a year and a half after its begin- “...major credit for establishing ning. His dissenting and concurring opinions also show him to be the most independent Alabama’s caselaw goes to minded of the judges, not infrequently taking a different view of the legal issues. If Clay Crenshaw, Lipscomb, and had remained on the bench, he might have rivaled Crenshaw, judging from his rate of Saffold. Clay and Minor are production during his two and a half years on the Court. Ellis is a puzzle. He was on the also due recognition, the latter Court throughout its six years in Cahaba, yet he wrote only eight majority opinions and not only for his opinions, but one dissent. Webb is even more puzzling. During his two and a half years on the bench, also for his collecting the he wrote only one majority and one dissenting opinion. Minor was a real producer, with Court’s decisions during its his 28 majority opinions during only two years on the Court. Cahaba years and publishing To sum up, based on the opinions in Minor’s Reports, major credit for establish- them as the first volume of ing Alabama’s caselaw goes to Crenshaw, Lipscomb, and Saffold.