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3 Early Alabama Law and Chancery Practice David I. Durham and Paul M. Pruitt Jr. By 1846,whenWilliamWeatherford Jr.filed a complaint in the state of Alabama chancery court against Charles Weatherford, Alexander Weatherford, William F. Howell, and Levitia L. Howell, the Alabama court sys­ tem had undergone significant changes since its earliest introduction into a wilderness territory. The sys­ tem had evolved from its early and quite primitive structure into an arrangement that by 1839 successfully liberated equity practice in the state through the separation of circuit and chancery courts.The latter were separate courts, modeled on English courts of chancery. In Alabama, chancery courts had their own rules and procedures, quite different from those of common law courts. Though chancery law (sometimes referred to as equity) could be applied to a broad range of situations, it was commonly used to remedy disputes over wills and estates.1 It was in this newly created sys­ tem that William Weatherford Jr. would seek an equitable ruling for his complaint against his half-­ siblings. Alabama’s legal sys­ tem was established in a frontier atmosphere of chaos and unrestrained immigration to the state.2 Prior to its creation in 1817, the Alabama Territory had been the east­ ern half of the Mississippi Territory, which was created in 1798 from lands disputed by the United States,the state of Georgia,and several Ameri­can Indian nations.3 Like the rest of the Mississippi Territory, the future state of Alabama was governed under a version of the Northwest Ordinance of 1787.4 During this period,a series of appointed governors and judges worked with elected legislators to form a government that, as historian Malcolm C. McMillan has pointed out, was modeled on the British sys­ tem of colonial administration.5 The Mississippi Territory was a huge administrative unit, and residents lived under primitive conditions. The sparsely populated and more inaccessible Tombigbee settlements to the east can be best described as an undeveloped frontier.6 Citizens of the east­ ern Mississippi Territory were isolated from the territorial center of government and law at Natchez to the extent that residents of this region of­ten com- Early Alabama Law and Chancery Practice / 47 plained of inadequate representation.This isolation, complicated by settlers’ long-­ running conflicts with the Spanish (in Mobile and Pensacola) and their uneasy coexistence with the Creek Nation, helped to establish white Alabamians ’ self-­ image as hardy and righteous people (Pickett 1962:488–502, 511–598;Jackson 2004:30–41;Rogers et al. 1994:44–53). In the territorial years, population growth was both a cause and effect of change. During this period the federal government facilitated settlement through the acquisition of Ameri­ can Indian lands to support what was becoming a rich cotton culture.Following the Creek land cessions at Fort Jack­ son in 1814, tremendous numbers of settlers poured into the area in what was soon characterized as “Alabama feaver.” By 1820 more than 130,000 migrants would occupy former Creek lands (Rogers et al.1994:54).Indian land cessions both before and after the Creek War, Congress’s belated settlement of the Yazoo land claims in 1814, and the revival of trade following the War of 1812 opened the Alabama frontier to a flood of immigration. Following a short two-­ year territorial period, the state of Alabama was created in 1819 and began to define its legal institutions according to traditions carried forward from its territorial experience as well as from the mandates of its new state constitution.7 Indian land cessions during the 1830s would eventually make even more land available to large numbers of migrants who flooded into the cheap, rich, newly acquired land. The judiciary article of the 1819 constitution established a supreme court, circuit courts that were organized according to county,and inferior courts of law and equity. In addition, a probate court was established in each county, which also served the function of the previous “orphans’ court.”8 McMillan best characterized the Alabama Constitution when he described it as both a “liberal” document (employing mid-­ twentieth-­ century usage) and a conservative one.The constitution was liberal in that it had no property, militia membership, or tax-­ paying restriction on voting or candidacy;the governor, sheriffs, and clerks of court were all elected by the people rather than by the legislature or by executive appointment. Moreover, the document contained very liberal clauses concerning the treatment and rights of slaves.9 It was conservative because within ten...

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