Tennessee’s ‘Free and Untrammeled Judiciary’ - Articles

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Posted by: Russell Fowler on May 23, 2019

Journal Issue Date: Jun 2019

Journal Name: Vol 55 No 6

The Turmoil over the Carmack Murder Case

Because of their indispensable duty to expound the law and resolve disputes, courts cannot avoid controversy. Therefore, throughout history Tennessee’s judiciary has had to overcome many challenges and unwarranted attacks. One of its greatest challenges was occasioned by the death of Edward Ward Carmack, a Tennessee political powerhouse of the early 20th century.

Edward Ward Carmack (1858-1908)

Carmack’s writing and speaking skills were second to none. A former U.S. Senator and Democratic candidate for governor, many considered him a potential presidential nominee. At his demise, he was editor of Nashville’s Tennessean newspaper and had previously been the editor of the Memphis Commercial Appeal and editor and founder of the Nashville Democrat.1
Carmack’s editorials were often vehemently racist and incited great violence against black Tennesseans across the state, including the 1892 burning of a newspaper owned and operated by civil rights pioneer Ida B. Well’s in Memphis.2 Carmack also assumed the mantle of a leader of the Prohibition movement in Tennessee and the chief opponent of the powerful political organization commanded by anti-Prohibition Democratic Governor Malcolm R. Patterson of Memphis.3

Carmack was born in 1850 in Sumner County and learned the law in Columbia law offices. He was admitted to the Tennessee bar at 21 and entered politics as a member of the Maury County Court. He was elected to the General Assembly in 1884. After relocating to Memphis, he defeated the incumbent congressman, Gov. Patterson’s father, and served in the U.S. House and later the U.S. Senate.4
Although losing a bitter race to unseat Gov. Patterson in the 1908 Democratic gubernatorial primary, which included a series of fiery debates, Carmack’s political future was undiminished as Prohibition forces gained strength. While pondering his next political move, Carmack launched an avalanche of anti-Patterson administration editorials in the Tennessean.5

Carmack’s Murder

However, on the afternoon of Nov. 9, 1908, Carmack’s life came to a sudden and bloody end on the corner of Union Street and Seventh Avenue in downtown Nashville as two bullets passed through his heart and another severed his spinal cord. Even more shocking was the arrest and indictment of Col. Duncan Cooper, a close friend and advisor of the governor, and Cooper’s son, Robin, a young lawyer, for the first degree murder of Carmack.6

Newspaper account of Duncan Cooper
(1844-1922), a friend and advisor of
Gov. Patterson, pictured with his son Robin, pardoned for the murder of Carmack.


Furthermore, it was discovered that the elder Cooper had warned Carmack that if his name appeared again in the Tennessean, “one or the other of them must die.”7 Carmack, undeterred, had published another stinging attack on Cooper the very day of the deadly encounter.8 Ironically, Col. Cooper had once employed Carmack as the editor of a newspaper he had owned, the Nashville American.9
The killing of Carmack enraged the press and public, and memorial services were held across Tennessee. In a eulogy, future U. S. Senator William R. Webb said, “Edward Ward Carmack was the largest asset Tennessee had. His blood was too precious to be wasted on the cobblestones of Nashville.”10 Methodist Bishop E. E. Hoss declared Carmack was silenced “not for what he had written, but for what they knew he would write.”11 The Tennessean pronounced it “murder premeditated, deliberately planned, and executed in cold blooded style” and a “dastardly crime without parallel in the annals of the state.”12 Future Gov. Ben Hooper later observed:

In fact, some of the circumstances preceding the killing of Senator Carmack led to the belief among the people that Governor Patterson himself had not been altogether blameless for the tragedy in that he knew its imminence and did not properly exert himself to prevent it. The murder, therefore, in the popular mind, bore many of the aspects of political assassination.13

Carmack was now a martyr, more powerful in death than in life. Accordingly, in his honor, the Prohibitionist General Assembly enacted measures over the governor’s vetoes outlawing the sale and manufacture of intoxicants in Tennessee, although widely ignored in the larger cities.14 These laws were subsequently upheld by Tennessee’s Supreme Court.15

 With several of Nashville’s leading lawyers taking part, the Coopers’ 1909 two-month jury trial in the Davidson County Circuit Court was followed “with breathless interest.”16 Evidence indicated Carmack fired first and wounded Robin Cooper in the shoulder and throat. Robin then responded with his fire.17 Yet there were allegations Robin fired first.18

It was clear Duncan Cooper, although armed, did not draw his gun, but he had purchased his pistol over the objections of his family in the event he encountered Carmack.19 Despite the supportive testimony of Gov. Patterson himself, both Coopers were found guilty of second-degree murder and sentenced to 20 years in prison.20

The Tennessee Supreme Court

An appeal of the convictions reached the Supreme Court as the 1910 judicial election approached. All five Democratic justices would be up for reelection. Yet to the outrage of the ever-growing ranks of the governor’s opponents, the Patterson-controlled Democratic state executive committee changed the method of selecting judicial nominees to an odd indirect primary system that potentially gave the governor the power to override the popular vote in each county. Justices Bennett Bell and William McAlister agreed to take part in the new process. Justices John Shields, M.M. Neil and Chief Justice William Dwight Beard of Memphis refused.21

After 10 weeks of consideration, the Supreme Court released its long-awaited three-to-two decision in the Cooper case on April 13, 1910. It upheld Duncan Cooper’s conviction and reversed and remanded Robin Cooper’s case due to evidentiary and jury instruction errors. Justices Shields, Neil and McAlister voted to uphold the conviction of Duncan Cooper, and Justices Beard, Bell and McAlister voted to reverse Robin Cooper’s conviction.

Gov. Malcolm R. Patterson of Memphis (1861-1935). During his life, he would be a leader on both sides of the Prohibition issue.

A few minutes after the court issued its opinion, Gov. Patterson executed a full pardon of Duncan Cooper.22 In doing so, the governor stated: “It took the Supreme Court seventy-two days to decide this case and it decided it the wrong way. It took me seventy-minutes and I decided it the right way.”23

Although a longtime friend of the governor’s father and having voted to overturn both convictions, Chief Justice Beard, along with Justices Neil and Shields, felt the electoral changes were related to the Cooper case, a charge denied by the governor.24 Moreover, right before the Cooper decision was announced, rumors were rampant that Patterson had tried to influence Beard’s decision and “control the courts.”25

The chief justice famously responded that he would only stand for a “free and untrammeled judiciary”26 and denounced Patterson. Beard also said he and Justices Neil and Shields would not run in the Democratic primary but would be Independent candidates.27

 Independent Democrats gathered in Nashville and nominated incumbents Beard, Shields and Neil along with Grafton Green and David Lansdon.28 They adopted the slogan: “A Free and Untrammeled Judiciary.”29 After conferring with GOP President William Howard Taft, the Republican Party determined not to field nominees and endorsed the Independent Democrats.

The Regular Democrats nominated incumbent Justices McAlister and Bell and three newcomers, but the Regulars attracted little notice from the press or public. Both factions also nominated candidates for the Tennessee Court of Appeals.30

In the campaign, the Independents focused on Patterson and his “machine.”31 The governor and the Regulars defended the pardon and alleged that Beard, Neil and Shields were using the Cooper case for political purposes. They further accused the Independent justices of playing politics in the appointment of the Tennessee attorney general and the court librarian.32 Yet on Election Day in August, the Independents carried Republican East Tennessee and won by 40,000 votes statewide.33

The Independent Democrats reciprocated by supporting the Republican nominee, the young and charismatic Ben W. Hooper of Newport, for the governorship in the fall campaign. Gov. Patterson, although re-nominated, withdrew from the hopeless contest and the Regular Democrats nominated U.S. Senator and former Gov. Robert Love Taylor.

Gov. Ben W. Hooper  (1870-1957)

Hooper, a former assistant U.S. attorney and a highly skilled lawyer, easily won the election and hence became Tennessee’s first Republican governor since the 1880s. He was reelected two years later still with strong Independent Democratic support.34 Hooper became one of Tennessee’s greatest governors and brought trust, stability, reform and bipartisanship during his two consequential terms from 1911 to 1915.

Gov. Patterson returned to Memphis and became a Circuit Court judge and surprised the state by switching positions on alcohol by becoming an advocate for Prohibition.35 Justice Beard relinquished the chief justiceship but stayed on the court. He was found dead of a heart attack in his Nashville hotel room five months after winning reelection, was to be remembered as a hero of Tennessee’s judiciary. At his second trial, Robin Cooper’s case was dismissed. Many years later, Robin was killed in a nighttime fracas under mysterious circumstances in Kentucky.36 A towering statute of Edward Ward Carmack was erected before the Tennessee Capitol Building. It still stands overlooking Nashville.

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET)and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal.


1. See Robert Corlew, Tennessee: A Short History 421 (1981).
2. See Lester C. Lamon, Blacks in Tennessee 1791-1970 69 (1981).
3. See Corlew at 424, 427.
4. See Kenneth McKellar, Tennessee Senators 461-73.
5. See Corlew at 427.
6. See id. at 427-28.
7. Ben Hooper, The Unwanted Boy 50 (1963), Gov. Ben W. Hooper (1870-1957) 5.
8. Id.
9. Corlew at 427.
10. McKellar at 479.
11. Hooper at 51.
12. Corlew at 428.
13. Hooper at 56.
14. See Corlew 429; A History of the Tennessee Supreme Court 194 (James Ely Jr., ed., 2002).
15. Ely at 200.
16. Hooper at 56.
17. Corlew at 428.
18. McKellar at 475.
19. See Corlew at 427-28.
20. Ely at 194.
21. See Id. at 195.
22. See Id.
23. Corlew at 428.
24. See Ely at 196.
25. Corlew at 430.
26. Id.
27. Id.
28. Ely at 196.
29. See Hooper at 57.
30. See Ely at 196-97.
31. Id. at 198.
32. Id.
33. Corlew at 430.
34. See id. at 431.
35. Hooper at 48.
36. Id. at 56.