CONSTITUTION OF 1819

OVERVIEW


In keeping with the provisions of the Congressional Enabling Act, of March 2, 1819, elections for forty-four delegates to a Constitutional Convention were held in May, and those elected convened at Huntsville, July 5th.

It was evident from the allotment of delegates, specified in the Congressional Enabling Act, that delegates from North Alabama would hold a 28-16 advantage over those of South Alabama. Certainly, North Alabama contained more citizens in 1819, and much of South and East Alabama was still nominally in the hands of Creek and Cherokee tribes.

John Williams Walker (Madison), Speaker of the 2nd Session of the Alabama Territorial Assembly, was elected President of the Convention. Walker was a logical choice, as Madison County was the most populous county in the Territory, and he was close to United States Senator Charles Tait, of Georgia, sponsor of the Congressional Enabling Act.

The composition of the Constitutional Convention of 1819 (July 5 - August 2) was remarkable, considering the brevity of Alabama's life as a Territory, and the overall frontier character of those portions under jurisdiction of the United States. In his comprehensive work, Constitutional Development in Alabama, 1798-1901, Dr. Malcolm McMillan offers some insight into the delegates who framed Alabama's first Constitution:

"Forty-four delegates were elected to the convention which assembled in Huntsville on July 5, 1819. Of this number there were at least eighteen lawyers, four physicians, two ministers, one surveyor, one merchant, and four planters or farmers...Nine of the forty-four had had prior legislative or judicial experience in the states from which they had come. Harry Toulmin of Baldwin County had been president of Transylvania University, Secretary of State for Kentucky, and an Alabama territorial judge since 1804. William Rufus King of Dallas County had served in Congress from North Carolina from 1810 to 1816 and after that was Secretary of the American Legation to St. Petersburg, Russia...Israel Pickens from Washington County had been a member of the North Carolina Senate and had represented that state in Congress from 1811 to 1817. Marmaduke Williams of Tuscaloosa County had been a member of the North Carolina Senate and had served that state in Congress from 1803 until 1817. John Leigh Townes had served in the Virginia legislature in 1815 and 1816. John Murphy of Monroe had been clerk of the South Carolina Senate for ten years and a trustee of South Carolina College, 1809-1818. Clement Comer Clay, Henry Hitchcock, Hugh McVay, James McGoffin, Gabriel Moore, Reuben Saffold, and John W. Walker had all been members of the Alabama territorial legislature and Samuel Garrow, Mayor of Mobile. At least eight of the men had had some college training. The potential ability of the delegates is best indicated by the fact that from them the state obtained six governors, six judges of the supreme court, and six United States senators."

From the outset of the Convention, the real power lay in the hands of the Committee of Fifteen, charged with writing the original draft of the Constitution. The Committee, composed of eight members from North Alabama and seven from South Alabama, was chaired by Clement Comer Clay, who would later serve as Speaker of the Alabama House of Representatives, the first Chief Justice of the Alabama Supreme Court, Governor and United States Senator. A strict comparison of the Committee's proposals, to the final Constitution, is too lengthy to be discussed in this Overview. While some of the Committee's recommendations were later amended by the full Convention, its draft served as the basic instrument by which the Constitution was framed.

The Constitution of 1819 provided the legislative branch with overwhelming powers, which clearly served as a counterpoint to the broad executive powers which characterized territorial governments. In addition to its normal law-making prerogative, the legislative branch was given the power of electing, in joint session, the Secretary of State, State Treasurer, Attorney General, Comptroller of Public Accounts, Circuit Court Judges (who assembled each year, to form the Supreme Court), and inferior judges.

As for the legislative branch itself, annual sessions, as well as annual elections, were provided.

Of the executive branch, only two officials, the Governor and Sheriffs, were to be elected by the people. Governors were limited to two, two-year terms in succession.

Of the judicial branch, only court clerks were to be popularly elected. While circuit judges were subject to election by joint session of both houses of the General Assembly, they were given life tenure, so as to remove them, once elected, from political pressures. This, however, proved unpopular, and in 1830, the first Amendment to be added to the Constitution placed definable terms on the circuit judges of the state.

Suffrage was extended to all white, male citizens who had attained the age of twenty-one years, without any property-holding provision.

The mode of amending the Constitution was a three-step process: 1) passage of a proposed amendment, by a two-thirds vote of each house of the General Assembly for submission to the people; 2) a majority vote of the people in the next general election; and 3) if approved by majority vote of the people, a two-thirds vote of each house of the General Assembly, during its next session, would provide final ratification.

One of the most hotly debated issues in the Convention was the question of locating the State Capital. While Huntsville had been designated as the meeting place for the Constitutional Convention, owing to its population, the fight over a permanent Capital for Alabama was deferred in the final Constitution. It was widely known that Territorial Governor William Wyatt Bibb, who would become Alabama's first state Governor, envisioned Cahawba (as it was then spelled), at the confluence of the Cahawba and Alabama Rivers in Dallas County, as a future metropolis. It was here that a bargain was struck between the North and South Alabama delegates. North Alabama was willing to designate Cahawba as the State Capital, for a limited time, in return for concessions from South Alabama delegates on apportionment of the General Assembly. The result was the provision in the Constitution, designating Cahawba as the Capital, beginning in 1820, and continuing to the year 1825, at which time the General Assembly would, by majority vote of each house, select a permanent Capital for Alabama. A special provision of this section, excluded the governor from formal concurrence or veto of such selection. Thus, Governor Bibb would be able to construct his city, which he was certain would eventually become the permanent Capital, while North Alabama delegates obtained an apportionment concession, favorable to that section. The North Alabama delegates rightly guessed that by 1825, their power in the Assembly would be such as to facilitate removal of the Capital to a more central permanent location. Thus, it was, that in that year, Tuskaloosa (as it was then spelled) became Alabama's first permanent Capital. It was not until the final removal of Creek and Cherokee tribes from South and East Alabama in the 1830's, that the population explosion of that region would shift the balance of power in the Assembly, paving the way for the Capital to be finally moved to Montgomery.

As Dr. McMillan states in Constitutional Development:

"The Alabama Constitution of 1819 was definitely a mixture of liberalism and conservatism, the product of the past as well as a forerunner of the future. It was liberal in several particulars. There were no property, tax-paying, or militia qualifications for voting or for office holding. The people were given participation in the amending process...The governor was made elective by the people instead of being elected by the legislature as in the old states, and sheriffs were made elective by the people instead of being appointed by the county court. The clerks of court were made elective by the people. Liberal clauses were included protecting the rights of slaves. On the other hand, the document was basically conservative, when judged by the standards of frontier democracy a decade later. One of the tenets of this democracy was the election by the people of all their public officials. In Alabama the people could elect the executive, the legislature, the sheriffs, and clerks of court, but all other officials were appointed by joint vote of the legislature. Under the Constitution of 1819, once the people elected the legislature, government passed to a great extent into the hands of that body."

On August 2nd, the Convention formally adopted the Constitution, then adjourned. The Constitution, thus, was considered ratified and operable as of that date. The Congressional Enabling Act did not specify submission of the Constitution to the people for ratification, nor was it the custom of the day for new states to do so. In 1857, Minnesota became the first state to submit its constitution to the people, for ratification.


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