A native of England and a long-time resident of Kentucky, Harry Toulmin (1766-1823) is best known in Alabama for his years as a territorial judge in the Mississippi Territory (1804-1817) and Alabama Territory (1817-1819). During this period, he was located at Fort Stoddert in what would become Baldwin County. Throughout his legal career, Toulmin compiled books of laws that proved to be so useful in emerging societies striving to achieve the rule of law that he was called a “frontier Justinian” by later literary historians, after the celebrated Roman emperor and codifier of laws.
Harry Toulmin Toulmin was born on April 7, 1766, at Taunton, England, to Joshua Toulmin, a Unitarian minister, and Jane Toulmin, who kept a bookstore. He received little formal education, but Harry Toulmin evolved a love of learning from family friends, among them scientist and clergyman Joseph Priestley, noted for his discovery of oxygen. The young Toulmin became a Unitarian minister, serving from 1786 to 1793 in Lancashire. Around 1787, Toulmin married Anne Tremlett, with whom he would have eight children.
The Toulmins were religious and political nonconformists at a time of great upheaval in England. They and their friends supported the French Revolution and its doctrines of republican equality, which were unpopular in monarchical Britain in the wake of the American Revolution. English authorities thus did little to protect such dissidents. Toulmin decided to move to the United States after a mob burned Priestley’s house in 1791 and a burning effigy of radical philosopher Thomas Paine was tossed onto his family’s doorstep.
Arriving in Virginia in 1793 with his family, Toulmin secured letters of recommendation from James Madison and Thomas Jefferson before traveling to the recently admitted state of Kentucky. In February 1794, Toulmin was elected president of Transylvania Seminary in Lexington (present-day Transylvania University), but he was too much the freethinker for the anti-Jefferson Federalists among school trustees and legislators. Toulmin resigned in April 1796 and was soon appointed Kentucky’s secretary of state, a post he would hold for eight years. In November 1798, he certified the Kentucky Resolutions, by which the state nullified the Federalist-inspired Alien and Sedition Acts. The resolutions, along with similar ones passed in Virginia and authored by Jefferson and Madison, laid the foundation for many future states’ rights arguments. While in Kentucky, he also read widely in law and was chosen by government officials there to revise the state’s code of criminal law. Toulmin, along with attorney James Blair, produced the three-volume Review of the Criminal Law of the Commonwealth of Kentucky (1804-1806), his first steps as a legal scholar.
After Jefferson was elected president, he appointed Toulmin judge of the Mississippi Territory in 1804, in recognition of his political support. By the summer of 1805, Toulmin had brought his family to Fort Stoddert, an American military post in the Mississippi Territory just north of the border between the United States and Spanish West Florida. Toulmin found that his new territory was sparsely populated by Native Americans; white settlers of Spanish, French, British, and American descent; and African Americans. Toulmin would live in this district for the rest of his life. At an unknown date, though likely in 1812, his wife Anne died. Shortly thereafter, he married Englishwoman Martha Johnson, with whom he had two additional children.
In 1806, he published the Clerk’s Magazine and American Conveyancer’s Assistant, which included 286 legal forms patterned on those used in England and in several states. Toulmin believed that Americans needed legal guides because property changed hands so rapidly in the United States that many citizens ended up in lawsuits to determine ownership. In 1807, Toulmin published a compilation of the Mississippi Territory’s laws. His activities also included operating a mail route and presiding over public functions. In addition, he represented American settlers in disputes with Spanish officials, who controlled shipping on the district’s river system and routinely charged fees as high as 12 percent of the value of cargoes, sometimes shutting off trade altogether.
Many white settlers viewed their Spanish neighbors with open hostility, and adventurers sought to stir up American resentment against the Spanish. One such adventurer, former Vice-Pres. Aaron Burr, was arrested for allegedly fomenting a revolution along the western frontier of the United States on a warrant issued by Toulmin; he was confined briefly at Ft. Stoddert in 1807. Another was Reuben Kemper, an agent for the Baton Rouge “Convention,” a group that had overthrown Spanish rule in the Florida parishes of the future state of Louisiana. Toulmin, acting on behalf of the federal government, which feared hostilities with Spain, had Kemper arrested in 1810 for mounting an unsuccessful expedition against Mobile, which was in Spanish hands at the time. In the aftermath, a Baldwin County grand jury charged Toulmin with supporting Spain, but he was cleared of these charges in May 1812 by a congressional investigation. He continued to play an active role in territorial affairs, reporting to federal officials in Washington on events of the Creek War.
Toulmin represented Baldwin County at the Alabama Constitutional Convention in July 1819. He also served on the Committee of Fifteen that drafted a constitution containing suffrage provisions similar to those of Kentucky and that was more democratic than those of older states. He also may have been pleased that the document allowed for the emancipation of slaves; like many Jeffersonians, he hoped that the institution of slavery would wither away naturally as reason advanced.
Toulmin was physically exhausted by December 1819 when Alabama officially became a state. The 1819 legislature did not keep him on as a judge, but the 1821 legislature commissioned him to write a digest of the state’s laws. By any standard, his 1823 Digest of the Laws of the State of Alabama is an impressive compilation. Nearly a thousand pages, it encompasses statutes of the Mississippi and Alabama territories as well as the acts of the Alabama state legislature. It is unmatched as a historical document of the Old Southwest and illustrates well how Toulmin shaped the public institutions of the wild frontier.
Toulmin died on December 11, 1823, in Millry, Washington County. A plaque honoring him was installed in December 2009 in front of the Baldwin County courthouse. Many pieces of his correspondence with President Madison are housed in the Library of Congress among Madison’s papers.
Works by Harry Toulmin
The Western Country in 1793: Reports on Kentucky and Virginia (1793)
A Review of the Criminal Law of the Commonwealth of Kentucky (with James Blair, 1804-1806)
The Clerk’s Magazine and American Conveyancer’s Assistant: Being a Collection Adopted to the United States, of the Most Approved Precedents of Affidavits, Agreements and Covenants [etc.] (1806)
A Digest of the Laws of the State of Alabama: Containing the Statutes and Resolutions in Force at the End of the General Assembly in January, 1823: To Which Is Added an Appendix (1823)
- Davis, William C. The Rogue Republic: How Would-be Patriots Waged the Shortest Revolution in American History. Boston: Houghton Mifflin Harcourt, 2011.
- McMillan, Malcolm Cook. Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism. Spartanburg, S.C. : Reprint Co., 1978 [c1955].
- Pruitt, Paul M., Jr. Taming Alabama: Lawyers and Reformers, 1804-1929. Tuscaloosa: University of Alabama Press, 2010.
- Toulmin, Harry. The Western Country in 1793: Reports on Kentucky and Virginia. Edited by Marion Tinling and Goodfrey Davis. San Marino, Calif.: Huntington Library, 1948.