The Brief Operation of Tennessee's Confederate Courts - Articles

All Content

Posted by: Sam Elliott on Nov 16, 2010

Journal Issue Date: Dec 2010

Journal Name: December 2010 - Vol. 46, No. 12

In May and June of 1861, the Tennessee state government took the legal steps (or illegal steps, depending on one's point of view), to declare Tennessee independent of the United States of America and align the state with the Southern Confederacy. The General Assembly passed measures repealing all laws requiring attorneys, members of the legislature, and other public officials to take an oath to support the Constitution of the United States. Cases involving indebtedness and other money issues were declared suspended for 12 months, and with the exception of Kentucky, Missouri and Maryland (all slave states), no suit by any citizen of the "late United States" then "adhering to the Government of which A. Lincoln claims to be President" would be entertained in Tennessee courts. Further, the section of the criminal code relating to offenses that were treasonable to the United States was repealed.

At that time, the Tennessee Supreme Court was constituted of three judges, each representing one of the three Grand Divisions. The East Tennessee justice, Robert J. McKinney, had served on the court since 1847. An emigrant from Ireland who had practiced law in Rogersville, Greeneville and Knoxville, McKinney opposed secession and was a reluctant adherent to the rebel cause. Far more loyal to the Confederacy was large-bodied Archibald Wright of Memphis, a close ally of Gov. Isham G. Harris, who had appointed Wright to his seat on the court when Harris's brother, Justice William R. Harris, had vacated the seat by his death from injuries in a steamboat explosion in 1858. The Middle Tennessee representative on the court was one of the most illustrious names in Tennessee legal history, Robert L. Caruthers. On the bench since 1852, Caruthers had been clerk of the Tennessee House of Representatives, attorney general for his circuit, served in the legislature and in Congress, and took a leading role in founding Cumberland University in Lebanon, and a few years later, the Cumberland University School of Law. Caruthers was also pro-Confederate.

Tennessee's secession almost immediately disrupted the activities of the Supreme Court. Caruthers resigned his seat to take one in the Confederate congress and was replaced first by Edwin Ewing and then, after an election in October 1861, by William F. Cooper. The December 1861 term of the court was actually the only term of court where the justices sat together as the Supreme Court of Confederate Tennessee. In February 1862, Union forces won victories at Fort Henry and Fort Donelson, which in turn led to the dissolution of Confederate authority in much of Middle and West Tennessee. Judge McKinney showed for a special term in Knoxville in early March 1862 and adjourned the court after a week of his being the only justice present. None of the judges showed up for the April 1862 term in Jackson, which was by then behind federal lines. Again, none of the justices showed for the September 1862 term in Knoxville. A clerk opened court each day for a week, to no avail. There were no further efforts to conduct a Confederate Tennessee Supreme Court.

The inferior courts probably functioned on a very limited basis. In addition to the 12-month suspension in effect until May 1862 (when only a reluctant East Tennessee remained under Confederate control), in early April 1862, Confederate President Jefferson Davis suspended the writ of habeas corpus in East and Middle Tennessee, which severely curtailed civil and criminal jurisdiction in those areas. While a concerted effort was made in mid-1863 to keep the last vestiges of Confederate government intact in East and Middle Tennessee, Union military victory at Knoxville and Chattanooga later that year made all those efforts moot.

Of the three justices at secession, it appears McKinney kept a low profile until his death in Knoxville in 1875. Wright, like Gov. Harris, made his home with the Confederate army, and on at least one occasion served as a sort of unofficial attorney general. One of his sons was killed at Stones River, the other, Luke E. Wright, served in the rebel artillery and survived the war to himself become a prominent lawyer and public servant. Wright died in 1885, working to restore the fortune swept away in the war 20 years before. As for Caruthers, in 1863 a special convention was called in Winchester to elect a Confederate governor to replace Harris, who was term-limited. Caruthers was selected, but could not take office because the constitution of 1834 required that he do so in the presence of the General Assembly, which could not assemble because of the federal occupation. Caruthers focused his post-war energies on Cumberland University, which itself was left in a bad condition as a result of the war. He died in 1882, having once remarked to a friend that the "happiest moments of his life were those employed in legal practice when he had a large bundle of papers on his table, making up a chancery record to read and investigate and ascertain what were the principles that governed and controlled it."