Benjamin F. Porter (1808-1868) was a prominent legal figure and state legislator in antebellum Alabama. He advocated for a more humane legal system and prison reform and briefly served as a circuit judge based in Mobile, Mobile County, and in Greenville, Butler County.
Porter was born in Charleston, South Carolina, on November 17, 1808. He was the son of Benjamin Richardson Porter and Eliza Seabrook Fickling. Born into a poor family, Porter was sent at age 14 to be a clerk in a counting house. Restless in that position, he was apprenticed to a physician and then to attorney William Craft. Admitted to the bar in 1825, Porter continued to study law and medicine on his own and to read works of literature, history, and philosophy.
In June 1828, Porter married Eliza T. Kidd. They would have ten children, one of whom, Ina Marie Porter Ockenden (1845-1919), would become a well-known journalist and poet. By the end of 1829, the Porters had moved to Monroe County, Alabama, where Benjamin wavered between practicing law or medicine until noted attorney James Dellet convinced him to commit to law and made him his partner.
During the economic depression that followed the Panic of 1837, Porter displayed his versatility. Moving to Tuscaloosa in 1835, he authored court reports on decisions from the Alabama Supreme Court (1834-1840), wrote legal treatises and textbooks, and proved to be a fine appellate advocate both in trial courts and before the state Supreme Court. He also entered politics, winning seats in the state House of Representatives from Monroe County (1832-1835) and Tuscaloosa County (1837-1840, 1842-1843, 1845-1848). His stance against Pres. Andrew Jackson’s role in the Nullification Crisis led him into the Whig Party and thereby into the legislative minority. Throughout these years, Porter was known for voting in support of public education and women’s rights.
Porter also advocated for the reform of Alabama’s penal laws and the construction of a state penitentiary. Many legal scholars of the time were critical of the harshness of typical legal punishments. In 1830s Alabama, serious crimes were punishable by hanging and lesser offenses by public whipping and branding. Confinement, if necessary, occurred in county jails. Porter and other progressive contemporary thinkers believed that most offenders could be reformed in penitentiaries like those in Pennsylvania and New York and returned to society as productive citizens. Alabama voters, however, believed in the Jacksonian ideology of limited government; as a result, many viewed a penitentiary as an expansion of government and thus a threat to the people’s liberty. As Alabama’s population grew, however, counties could not handle the volume of crime. In 1839, the state legislature passed a penitentiary act with bipartisan support.
In the meantime, Porter had become an opponent of the death penalty. Possessed of a sizeable personal library, he was influenced by the writings of such Enlightenment figures as Italian legal scholar Cesare Beccaria, who believed that “life” was a human rightone that the state could not rightfully terminate. Like Beccaria, Porter believed that the death penalty was a poor deterrent. Criminals, he argued, often killed witnesses to escape hanging, while juries sometimes were reluctant to impose the death penalty. Working with like-minded legislators, including Sumter County democrat William Marshall Inge, Porter was able by the early 1840s to restrict the use of capital punishment, at least where white men were concerned, and specifically hanging for theft, arson, or counterfeiting, or most of the lesser offenses for which people were hanged under common law. Convicted enslaved people were still liable to be hanged for a variety of offenses. Despite being a supporter of slavery, Porter supported the legal rights of the enslaved. In one instance, he successfully defended two young black men charged with burglary.
In 1840, Porter accepted an appointment as a judge in Mobile’s newly created tenth circuit. He cleared an overcrowded jail in his brief tenure but resigned his position the same year, after Attorney General Matthew W. Lindsay challenged his eligibility before the state’s Supreme Court. Porter had resigned his legislative post just prior to passage of the bill creating the circuit, yet the court ruled that Alabama’s constitution prohibited legislators from filling posts created during their terms of office.
Porter continued to work against capital punishment. In 1846, in an unsuccessful attempt to ban the death penalty, he convinced 15 other House members to join his cause, a considerable achievement at the time. That year also marked the beginning of another penal experiment, as the legislature approved, over Porter’s objection, the leasing of the penitentiary to private contractors. That decision began a long era of prison privatization, marked by the post-Civil War creation of the infamous convict lease system and the related system of debt peonage.
By the late 1840s, Porter had left Tuscaloosa to pursue careers in railroad development and journalism, traveling to northwest Georgia, Charleston, northeast Alabama, and finally Greenville, Butler County. There, like many former Whigs, he opposed secession but later supported the Confederacy. After the death of a son in battle, he published a broadside in which he denounced southern politicians, accusing them of being too concerned with political abstraction and bringing ruin upon the South. The paper was intended to announce his gubernatorial candidacy; he declared that he would never work with northern politicians, whom he held responsible for the death of his son. After the war, his hatred for northerners began to fade, and he assisted federal officials in relief efforts. By the spring of 1868, he had become a Republican and had accepted a judicial appointment as a circuit judge in Greenville. His service was cut short when he died of heart failure on June 4, 1868; he was most likely buried in Greenville.
Works by Porter
Address Delivered Before the Philomathic Society of the University of Alabama (1836)
The Office and Duties of Executors and Administrators (1842)
The Past and the Present: A Discourse Delivered Before the Erosophic Society of the University of Alabama (1845)
Argument of Benjamin F. Porter, in Support of a Bill . . . to Abrogate the Punishment of Death (1846)
Reminiscences of Men and Things in Alabama (1853)
Benjamin F. Porter Family Papers, Special Collections and Archives, Auburn University, Auburn, Alabama.
Dellet (James) Papers, Alabama Department of Archives and History, Montgomery, Alabama.
Paul M. Pruitt, Jr. Taming Alabama: Lawyers and Reformers, 1804-1929. Tuscaloosa: University of Alabama Press, 2010.