Tennessee's Earliest Lawyers

To the degree there is a consensus, it is agreed that Tennessee's first lawyer was probably Luke Bowyer, who was present in that area of North Carolina that was to become the State of Tennessee in the 1770s. Bowyer was the attorney for the Wautauga Association, and signed off on a petition to Provincial Congress in the Tarheel State in 1776. Little is known of Bowyer's ability as a lawyer, although his personal disposition was deemed "turbulent" and "litigious." On at least one occasion, he was confined to the stocks for profane swearing and contempt of court, vices to which, eminent Tennessee legal historian Joshua Caldwell observed, Bowyer "was somewhat addicted." Caldwell also noted that conditions on the early frontier were such that lawyers of eminence would not be attracted to practice there: "The frontier lawyer is likely to be of moderate fortune and capacity, and strenuously favorable to the increase of litigation."

Fortunately, things got better. Twenty years after Bowyer first appeared on the petition to the North Carolina Provincial Congress, delegates assembled in what was then the village of Knoxville in January 1796 to draft a constitution for the new state. Twelve dollars and sixty-two cents were expended to equip a building for the comfort of the convention's 55 members, who were a "who's who" of the top political and legal talent in Tennessee. Among the attorneys present was a young Andrew Jackson, who, by tradition, suggested the name of Tennessee for the new state. Names which are more familiar to the current generation by the counties named after them included John McNairy, who was Tennessee's first United States District Judge, Joseph Anderson, who, along with McNairy, was one of the three territorial judges, William Cocke, John Rhea and Archibald Roane. W. C. C. Claiborne went on to be a judge and congressman in Tennessee, the territorial governor of Mississippi and the governor of Louisiana at the time of Jackson's victory at New Orleans. The constitution they formulated was quite advanced for the time, providing for direct election of the governor, sufferage for all men regardless of color, and much the same Declaration of Rights that is in our current constitution.

The Constitution of 1796, however, did not establish the courts as an independent and equal branch of government, but left it to the legislature to "direct and establish" "superior and inferior courts of law and equity." The Superior Court of Law and Equity was the first iteration of our Supreme Court, and was originally constituted of three judges, and included at one time or another Jackson, McNairy, Roane, John Overton and Willie Blount. The three traveling Superior Court judges heard cases in Jonesboro (Washington District), Knoxville (Hamilton District), Carthage (Winchester District), Clarksville (Robertson District), and Nashville (Mero District). The courthouses they heard cases in often resembled the log-constructed replica of the State of Franklin's "capitol" building that can be seen today in Greeneville. Like the judges, the lawyers rode the circuit, tried cases against one another, stayed and ate in the same inns, and enjoyed the certain cameraderie that constant association of that nature tends to bring.

While there were exceptions such as Andrew Jackson, who built his fortune by taking acreage as fees, early lawyers did not earn large fees, and they were often paid in small promissory notes or in livestock. Some lawyers in fact carried a branding iron to mark cattle received as fees. They spoke in terms that are now arcane to us, such as nisi prius, and their flowery oratory and lengthy arguments were the source of entertainment for the public attending court proceedings. Historian Caldwell observed that in "the old time there were not many big cases, but in almost every case there were big speeches."[1]

Reflecting from the vantage point of the second decade of the 21st Century, these men accomplished a remarkable achievement. It is hard for us to imagine the challenges these early members of the bar had in pursuing their profession. Riding the circuit, Andrew Jackson foiled Indian attacks, faced down a mob in Jonesboro, and adjourned court to arrest the famous outlaw Russell Bean, who meekly surrendered to Old Hickory because he knew Jackson would have no compunction in shooting him. While few in our state's history have been as fearless or determined as Jackson, many of his compatriots must have faced similar challenges. Yet, these earliest lawyers carved from North Carolina antecedents, English common law and early Tennessee legislation a workable system of justice that formed the bedrock of our own.

Note

1. Writing near the turn of the last century, Caldwell deplored the fact that even then, the increase of business had made lawyers put aside eloquence, which was "now a lost and a despised art at the bar."