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Toulmin & Hitchcock

Alabama Heritage, Summer 2006 by Beidler, Philip

Pioneering Jurists of the Alabama Frontier

Harry Toulmin and Henry Hitchcock wrote the law books of the Alabama frontier, revealing the raffish, freewheeling world of antebellum statehood.

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LOOK AT ANY ACCOUNT OF Alabama history during the territorial and early statehood eras, and you will find the names Harry Toulmin and Henry Hitchcock invariably yoked as pioneer jurists of early Alabama. Toulmin authored A Digest of the Laws of the State of Alabama, a landmark legal compendium; Hitchcock penned Alabama Justice of the Peace, a groundbreaking judicial guidebook and courts manual. These men wrote the laws that tamed the Alabama frontier out of two overlapping lifetimes that spanned an astonishingly vivid and complex period of change in Anglo-European and American history. Toulmin was born in 1766, when his radical, English, Unitarian father might easily have rubbed elbows with fellow sojourning American freethinker Benjamin Franklin. At the death of Henry Hitchcock in 1837, a new nation struggled to pull itself out of a bank crisis fomented by Andrew Jackson. Of the twinned lives and careers in between would come the stories and the texts bridging the gap between frontier anarchy and the rule of justice. Their paired volumes became the means whereby a new body politic simultaneously created its vision of legal governance and laid down the terms of its enactment.

Amidst an array of such dangerous freethinkers as Paine, Franklin, Adams, Jefferson, and others, Toulmin and Hitchcock prove yet another pair of notable religiointellectual amphibians. Albeit in their foundational assumptions, they were fairly typical participants in an evolving tradition of law synthesizing Judeo-Christian moral tradition and the new Enlightenment devotion to reason.

Ironically, they seem to have not had much biographical or historical connection; even in their authorial labors they seem to have had little to do with each other, save-as will be seen-one touching and generous moment of textual collaboration. Still, along the way, each wrote himself into history as the subject of a quintessential early Alabama story.

Aside from the odd anecdotal reference, Toulmin receives little biographical attention in historical accounts of the early statehood era. From accounts of his early ministerial career, nineteenth-century historian Albert Pickett finds him admirable as an apostle of religious freedom. From his role in statehood debates, twentieth-century historian Albert B. Moore styles him "a dyed-in-the-wool Tombigbean." In the territorial record, it is another story, where he takes up two full columns of index alone, documenting his long and influential career as a legal, political, and administrative functionary. But the fullest record, interestingly, comes from religious history.

HARRY TOULMIN WAS BORN IN England in 1766, the "son of noted theologian and dissenting minister Joshua Toulmin." He received early training and, from 1786 to 1793, employment in his native land as a Unitarian clergyman to several congregations. Along the way he became a supporter of the French Revolution and an intellectual disciple of the noted freethinker Joseph Priestley. Author of A History of the Corruptions of Christianity (1782) and History of the Early Opinions Concerning Jesus Christ (1786), Priestley's vocal and visible support of the French caused him to be drummed out of the English Royal Society. In these various connections, Toulmin found himself present for the culmination of a host of political and religious upheavals in England. Riots resulted in the destruction of Priestley's laboratory, home, and meeting house in Birmingham; an effigy of Thomas Paine burned at the Rev. Joshua Toulmin's door, and the menace and endangerment of Rev. Harry Toulmin's family. Accordingly, we do not find it odd to see the younger Toulmin, by then the author of an anonymous pamphlet, Thoughts on Emigration (1792), accepting the charge of his dissenting congregation to be sent ahead to the new United States of America to find a happier place where they all eventually might settle.

In America Toulmin seems to have lost his ministerial charge amidst the experience of finding even more head-turning political and intellectual company. Carrying a letter of recommendation from Priestley, who had likewise emigrated, he landed in Virginia and met Jefferson and Madison. Then, carrying a new letter from Jefferson, he moved west to Kentucky where he found appointment as president of Transylvania Seminary (1794-96). According to Toulmin's Unitarian biography, "his short tenure was troubled" as a result of "conflict between the Presbyterians who had begun the seminary and the more liberal board members who had elected Toulmin." Fortunately, he had made friends with a politically liberal Baptist minister and member of the Transylvania board named James Garrard. When Garrard was elected governor of Kentucky in 1796, he appointed Toulmin secretary of State.

During the two terms Toulmin served, one of his major projects was an unprecedented, large-scale attempt at legal compilation. This effort arose from a desire, as stated by his biographers, to democratize the state legal system in a way making it "accessible to all citizens." As important for our story, he also proved his libertarian credentials by signing, as attorney general, the 1798-99 Kentucky Resolutions, drafted by Jefferson, protesting the Alien and Sedition Acts passed by Congress at the insistence of Jefferson's then archenemy, President John Adams. Jefferson's appreciation was no doubt a factor in Toulmin's 1804 appointment as superior court judge for the Tombigbee District of the Mississippi Territory, now southwest Alabama.

Toulmin & Hitchcock

Alabama Heritage, Summer 2006 by Beidler, Philip

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