# Ex Parte Thompson > Supreme Court of Alabama · March 9, 1933 · 228 Ala. 113 URL: https://www.frixlaw.com/law-library/cases/3248317 ## Case - **Full name:** Ex Parte Thompson. - **Court:** Supreme Court of Alabama - **Decided:** March 9, 1933 - **Citations:** 228 Ala. 113; 152 So. 229; 107 A.L.R. 671; 1933 Ala. LEXIS 17 - **Precedential status:** Published - **Opinion:** Addendum by Brown - **Judges:** Knight, Brown, Anderson, Gardner, Bouldin, Foster, Thomas, Fite - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3248317 ## Opinion text BROWN, Justice. After more mature consideration of the question in this case, I am impelled to withdraw my concurrence in the original opinion and respectfully dissent from the holding of the majority. The majority opinion concedes that the right of trial by jury preserved by section 11 of the Constitution of 1901, inheres in the right involved, and not in the remedy affecting such right, and that this section of the Constitution preserves the’right of trial by jury where that right was provided and secured by the common law at the time the Constitution was adopted. So the solution of the question turns upon the source and what constituted the common law, within the purview of this section when this state was formed and that section was first written into the Constitution of Alabama in 1819. We find the answer to that question in the case of Ex parte Rhodes (Rhodes v. McWilson), 202 Ala. 68, 69 , 79 So. 462, 463 , 1 A. L. R. 568, in this language: “When the delegates to our first constitutional convention, who were the representatives of the people and not of the government to be created, were assembled in 1819, and were making our Constitution, there was then applicable in the Alabama territory a system of laws called ‘The Law of the Land,’ or ‘Due Process of Law.’ This consisted mainly of a great body of American laws, the American common law, together with some written laws, the acts of the Alabama and Mississippi territorial Leg islatures, the Constitution of the United States, and the acts of Congress. The various phrases and clauses used by the convention to describe the reserved rights, liberties, immunities, and privileges then had well-' known meanings; many of them are to be' found in the Magna Charta and other char-’ ters of liberties then claimed by our ancestors as a part of the law of the land; and many: of them were then imbedded in the Constituí tion of the United States and had been con-; strued by the Supreme Court of our country; to mean what they meant at common law. It; would be unreasonable to suppose that our Constitution makers used these phrases or clauses otherwise than as then defined by the common law or the law of the land. The first clause in the fifth section of the Bill of Rights, ‘That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches,’ then had a well-known meaning, and the same phrase had been often defined by the courts, state and federal. It must be presumed that the makers of the Constitution adopted it under its then construction. If it was not intended to prevent the government then being formed from authorizing or legalizing arrests like this, then the part which applies to the seizure of the person is worthless. If the arrest under consideration was lawful, or can be made so without amending the Constitution, then this guaranty of the Bill of Rights has failed of its purpose, to secure the people from unreasonable arrests.” (Italics supplied.) While the court, in that case, was dealing with section 5 of the Bill of Rights securing the person against unreasonable seizure, the principle stated is equally applicable here. Among other acts of the territorial Legislature constituting a part of the law of the land — the common law of Alabama — was the territorial act of 1807, securing to attorneys at law the right to trial by jury in disbarment proceedings, and when the Constitution makers wrote into the Constitution, “That the right of trial by jury shall remain inviolate,” they no doubt used this language in the light of the existing law — the law of the' land— and intended tb preserve this right to the; people out of the powers of the government which they were then forming. The .principle that the statutes enacted by the territorial Legislature, that were in force when the state of Alabama was established and its government was formed, were a part of the law of the land, is clearly recognized in State v. Cawood, 2 Stew. 360 , Carter & Wife v. Balfour’s Adm’r, 19 Ala. 814 , and Horton v. Sledge, 29 Ala. 478 . This principle is generally recognized, to quote from 5 Ruling Case Law, page 817, § 10: “It is well established that the common law includes not only the lex non scripta * * but so much of the written statute law of England as had been passed in aid of or to supply the defects of the common law, 'prior to its adoption in this country, and ‘which was not merely local in character or inapplicable to American institutions and conditions; but not those statutes passed subsequently.” Cases cited notes 8 and 9, p. 818. The Constitution of 1819 expressly adopted the existing laws in force in the territory at the time of its adoption, reserving in the Con *129 stitution the right to change the same by subsequent Legislatures, except as those laws which are preserved as “inviolate” by the Constitution -itself. This preserved the right of trial by jury to attorneys at law in disbarment proceedings. I, therefore, hold that the act entitled “An Act To provide for the organization, regulation and government of the State Bar including admissions and disbarments of lawyers” (Acts of 1923, page 100), authorizing the disbarment of attorneys at law by the bar commission, violative of section 11 of the Constitution. This act neither in its body nor title deals with the inherent power of this court, nor does it purport in any way to extend such inherent power to the subject-matter of the enactment through the “organized bar,” and in my judgment the discussion of the court’s inherent power is wholly beside the question. I therefore respectfully dissent on the question discussed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3248317. Public record. Not legal advice.