When the United States Attorney Sued to Remove Half the Tennessee Supreme Court
Hanging in the courtroom of the Supreme Court building in Nashville is the portrait of a former chief justice of the Tennessee Supreme Court, Alfred Osborne Pope Nicholson. The portrait depicts Nicholson, a distinguished lawyer, legislator, newspaper editor and jurist, with an almost ridiculously long beard. In 1870, the now largely forgotten Nicholson was at the center of a controversy that resulted in the United States Attorney for the Eastern District of Tennessee filing suit in the District Court for his removal, as well as two other justices of the Supreme Court and the state attorney general.
On July 28, 1868, Secretary of State William Seward issued a proclamation announcing that the 14th Amendment to the United States Constitution had been ratified by the requisite number of states, and was therefore in effect. Passed in the aftermath of the Civil War, the 14th Amendment, like the 13th and the 15th Amendments, was a departure from previous amendments in that it limited, for the first time, the power of the states, and extended the obligation to render due process to the states. As a justice of the United States Supreme Court noted: “Fairly construed these amendments may be said to rise to the dignity of a new Magna Charta.” The sweeping scope of the 14th Amendment is well known to lawyers in our time. But few in our time are aware of Section 3 of the 14th Amendment, or the controversy it stirred in Tennessee in the early 1870s.
Section 3 states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Unlike the remedial aspects of the other portions of the amendment, Section 3 was meant to punish former Confederates, especially those who were in the rebel leadership during the Civil War. Section 3 also had the fairly obvious purpose of undermining political opposition to the Republican Party in the South.
Tennessee’s quick and somewhat dubious ratification of the 14th Amendment in July 1866 resulted in the state’s early readmission to the Union, thereby avoiding the military rule imposed on the rest of the former Confederacy by Congress in 1867. One of the two contending parties in the state at that time was the “Radicals,” the hard-core Unionist supporters of Gov. William G. “Parson” Brownlow, named as such because of their adherence to the so-called Radical Republicans in Congress who were intent on a hard Reconstruction policy. The other party was the “Conservatives,” which included Unionists of a mellower bent, and eventually most, if not effectively all, of the former Confederates. The former Confederates, disenfranchised by state law, grated at the inability to vote while the franchise was extended to the black former slaves.
A breakthrough occurred on Feb. 25, 1869, when the uncompromising Radical, Brownlow, resigned as governor to take a seat in the United States Senate. In his place the speaker of the senate, DeWitt C. Senter, became governor. It was at this point that the political disability of the 14th Amendment became an issue. Although a stout Unionist who was actually imprisoned by the Confederate government for six months, Senter was a member of the legislature when Tennessee became a Confederate state, and so technically held office under the Confederacy. Anticipating Brownlow’s resignation, in late 1868 a rival senator raised the issue of Senter’s potential disqualification. Fortunately for Senter’s political prospects, a bill was soon thereafter passed by Congress and signed by President Andrew Johnson removing Senter’s disability.
Brownlow deemed Senter a trusty Radical, although Senter proved to be not as hard a Radical as the Parson, as he lightened some of Brownlow’s harsher anti-ex-Confederate measures. Under the Constitution of 1834, however, Senter’s term would expire in October 1869, and he had significant opposition from another trusty Radical, General William B. Stokes. The enfranchisement of the ex-Confederates became the central issue of the campaign. Senter used his power over county election registrars to allow the former rebels to vote, and they came out, legally or illegally, in sufficient force to elect Senter for a full term. Furthermore, the new Conservative-controlled legislature removed the remaining franchise restrictions and submitted to the electorate a referendum on calling a constitutional convention. The convention was approved by a huge majority, and assembled in January 1870.
Before the convention assembled, the issue of Section 3 of the 14th Amendment again came to the forefront. A lengthy letter appeared in the Memphis Appeal in October penned by a Conservative who concluded that while the delegates would be “civil officers of the highest legislative character” subject to the disqualification of Section 3, that without a judicial determination that the facts giving rise to the disability (i.e., participation or aiding in the rebellion), there could be no disqualification.
There appears to have been little other discussion of the issue prior to or during the convention. Certainly, a number of former Confederate soldiers, politicians and sympathizers were delegates to the convention. And these men were aware that they were being watched. As the president of the convention, former Confederate General John C. Brown said when he accepted leadership of the convention, “We cannot, we must not, be unmindful of the great changes that have impressed themselves upon our history. Let us accept the situation, and not seek to alter circumstances which have passed beyond our control.” Brown’s reference was to black suffrage, which, over a strident minority report, was written into the new constitution. While Governor Brownlow’s regime shielded Tennessee from the hard hand of Congressional Reconstruction, there were elements both inside and outside the state who were not happy that the Conservatives had wrested control of Tennessee away from the Radicals. Indeed, when the convention concluded, Radicals went to Washington to urge deployment of federal troops, but President Ulysses S. Grant declined. For the time being, the federal government was not asserting Section 3 or any other basis for interference in Tennessee’s politics.
Although Section 3 had no early impact in Tennessee, it was litigated in Virginia in the months prior to the constitutional convention. One of the great historical ironies of the 14th Amendment is that while it was enacted in large part to protect the newly freed slaves, it provided a defense to former Confederate President Jefferson Davis in connection with his indictment for treason. In the view of Chief Justice Salmon P. Chase, a wartime Radical who moderated his views after the war, Section 3 constituted a punishment that invoked the double jeopardy clause of the United States Constitution. Davis’s disqualification under Section 3 meant that no further punishment for treason could be imposed. The matter was heard before a packed courtroom in Richmond on Dec. 4, 1868. Chase sat as the United States circuit judge for the District of Virginia and was of the opinion that the indictment should be quashed on double jeopardy grounds. United States District Judge John Underwood sat as the other circuit judge, and Underwood, a northern Radical of the strongest sort, disagreed, requiring that the issue be certified to the Supreme Court. On Dec. 25, 1868, however, the issue was mooted as to Davis when Andrew Johnson issued a general amnesty for acts of treason arising out of the rebellion.
Chase and Underwood also disagreed relative to another aspect of the operation of Section 3. A freed black, Caesar Griffin, was convicted in a Virginia court for “shooting with the intent to kill” by Judge Hugh Sheffy, who was disqualified by Section 3. In his capacity as district judge, Underwood granted a writ of habeus corpus, finding that Section 3 was self-executing and that Sheffy lacked the capacity to be judge when he convicted Griffin. In reviewing the case, Chase considered the problems created by the invalidation of many government actions prior to July 1868.
If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale — in short no official act — is of the least validity. It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.
In Chase’s view, legislation was necessary to put Section 3 into effect, noting that Section 5 of the 14th Amendment provided that Congress had the power to pass legislation to enforce the Amendment. Chase ruled:
The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections. And the final clause of the third section itself is significant. It gives to congress absolute control of the whole operation of the amendment. These are its words: “But congress may, by a vote of two-thirds of each house, remove such disability.” Taking the third section then, in its completeness with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislations of congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.
Griffin’s Case, 11 F. Cas. at 21. 
The fact that a Radical delegation from Tennessee visited Washington in the late winter of 1870 to urge military rule, including the United States attorney for the Eastern District of Tennessee, Eldad C. Camp, did not escape Conservative notice. While office seekers were doubtlessly encouraged by Chase’s decision in Griffin, the Radical Republicans in Congress were not necessarily required to respect it. Recognizing that the issue was still in play, a correspondent to the Union and American requested a list of prominent lawyers in Middle Tennessee who would have no disability under Section 3 for the Supreme Court elections scheduled under the new constitution for later that year.
Before the elections under the new constitution, however, the Radicals in Washington put teeth into Section 3 by eliminating Chase’s objection in Griffin. The Enforcement Act of 1870, passed on May 31, provided, in pertinent part:
Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.
Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.
Approximately six weeks later, the Conservatives held a convention to nominate six justices for the Supreme Court under the new constitution. Questions were raised as to at least two candidates, A. O. P. Nicholson, and Edwin Ewing. Ewing offered his opinion that since he took an oath of amnesty under a proclamation issued by President Lincoln, he had no disability. Nicholson claimed he was not disqualified because he was pardoned by Andrew Johnson prior to the adoption of the 14th Amendment. This opinion did not keep Nicholson’s friends from trying to have a bill passed in Congress to remove his disability, which failed because Senator Brownlow and Congressman Horace Maynard objected to it.
All six Conservative nominees were elected in August 1870. Two, Thomas L. Freeman and future governor and chief justice Peter Turney, formerly commanded Confederate regiments but had held no disqualifying prewar office. James W. Deaderick was an upper East Tennessee Unionist who maintained a low profile during the war. John Lewis Taylor Sneed had prewar service in the General Assembly and as state attorney general, and was a brigadier general in Gov. Isham G. Harris’s Provisional Army of Tennessee but was not accepted as a Confederate general when Harris turned the army over to the Confederate government. Nicholson had prewar service in the General Assembly and as United States senator, and clearly supported the Confederacy during the war. Like Deaderick, Thomas Amos Rogers Nelson was a Unionist. A prewar district attorney general and congressman, Nelson was elected to the United States Congress after Tennessee left the Union, but nevertheless went to Washington to take his seat in the Federal congress. Arrested by Confederate authorities, he gained his freedom by promising to go home and not stir up agitation against the Confederacy. He resumed his pro-Union activities when the Federal army occupied Knoxville in 1863.
On Aug. 17, 1870, soon after the election, Conservative papers in both Nashville and Memphis published a lengthy letter in the nature of a legal brief by Edwin Ewing, which argued Section 3 was inapplicable because it was not only ex post facto as to the actions giving rise to the disability, but also because it was effectively a bill of attainder. Ewing also argued that, in Nicholson’s case, the pardon issued by Andrew Johnson legally made him innocent of any offenses. Finally, Ewing argued, the governor could not refuse to commission the new justices, because a quo warranto proceeding was necessary to make the factual findings necessary to deny them office. A letter from attorney M. S. Frierson to Nicholson published several days later again argued that Nicholson’s pardon removed culpability for any acts prior to the amendment’s ratification, that it was ex post facto, and, for good measure, that Nicholson was not guilty of any acts proscribed by Section 3.
Federal authorities in the state were unimpressed. In Middle Tennessee, quo warranto writs were issued for a number of local officials in early October 1870. Eventually, as many as 180 cases were brought under Section 3 and the Enforcement Act. One application for a writ was quoted in the Nashville Union and American relative to T. K. Grigg, a Davidson County justice of the peace, reciting that Grigg, prior to the war had been a constable, had taken an oath to uphold the Constitution of the United States, that he had fought in the Rebel army, and that his disabilities had never been removed by Congress.
On Oct. 22, 1870, United States Attorney Eldad C. Camp, part of the Radical delegation that seven months before had urged armed federal intervention in Tennessee, filed informations against justices Nicholson, John L. T. Sneed, T. A. R. Nelson, and Tennessee Attorney General Joseph B. Heiskell, a former Confederate congressman and a notorious East Tennessee rebel. Conservatives claimed that the institution of the proceedings were a simple political ploy to put Radicals on the court, perhaps orchestrated by Horace Maynard, while the Radical organ Knoxville Weekly Chronicle indicated that the state of the law made it “obligatory” to institute the proceedings.
Tennessee’s United States District judge was Connally F. Trigg, a Virginian transplant to Tennessee who remained loyal to the Union and was appointed by President Lincoln when West Humphries was impeached and removed for Confederate allegiance. Trigg was of a conservative bent, and rapidly dismissed one of the cases brought in Middle Tennessee, on the basis that the oath a former soldier took was not an oath to uphold the Constitution as required by Section 3. At a hearing on one of the other Middle Tennessee cases two days later, Trigg did not seem impressed by the defense’s ex post facto argument, noting that the 14th Amendment itself allowed ex post facto laws on the subject of the Amendment. Trigg stated, at the close of the argument, “that he did not know as it was necessary to hasten a decision on the quo warranto cases, as a case involving the same principles had already gone up to the Supreme Court of the United States” from Louisville. Trigg’s approach was applauded by the members of the Memphis bar, as it was widely believed that action would eventually be taken by Congress to remove all disabilities. Attempting to bypass Trigg, the Radicals made a motion in the Supreme Court on Jan. 30, 1871, to advance the Tennessee quo warranto cases on the docket, but the Supreme Court refused to do so, stating “that the cases were not of sufficient importance to justify such a course.”
In February 1871, indictments were filed in the cases in Knoxville, one case each against Nicholson and Nelson, and an amazing 10 cases were filed against Sneed, alleging that each gave “aid and comfort” to the “traitorous organization known as the Confederate States of America.” It appears that at least four cases were filed against Heiskell, who was hated in East Tennessee as a virulent secessionist. While Sneed, Nicholson and Heiskell were unvarnished Confederates, it must have been particularly galling to Nelson, who was threatened with physical harm by secessionists after his efforts on the part of the Union in 1861 and imprisoned by the Confederate government, to be indicted for aiding the Confederacy.
In the end, Trigg’s decision to slow walk the cases allowed events in Washington to moot the issue. Another year and a half went by, during which time Justice Nelson resigned his office, to be replaced by Robert McFarland, another Confederate officer who held no office before the war, although Nelson’s resignation did not affect the pendency of his case. On May 22, 1872, Congress passed a wide amnesty that removed the disabilities from all but a few former Confederates, “except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.” President Grant issued a directive to the various United States Attorneys to dismiss the various quo warranto cases pending, except those not covered by the Amnesty Act. Given the fact that Nicholson was a Senator in the 36th and 37th Congresses, and Nelson technically a member of the 37th Congress, the Amnesty Act did not resolve their cases, although it did Sneed’s and presumably Heiskell’s.
The cases against Sneed and Nelson were dismissed on July 9, 1872. The case against Nicholson was dismissed on Sept. 16, 1872. While Grant may not have taken steps to cease the prosecution, his suspension of United States Attorney Camp at the insistance of Brownlow and Maynard resulted in Camp’s resignation late in 1871. Without this fiery Radical to push the case, it seems likely his successor looked at the facts of Nicholson’s pardon and Nelson’s resignation in 1871 and strong Unionism during the war to determine that pursuit of the quo warranto cases was no longer in the best interests of the government.
Nicholson served as chief justice until his death on March 23, 1876. Sneed served his eight year term on the supreme court, and later became vice-president of the American Bar Association, dying in 1901. T. A. R. Nelson died of cholera in 1873. Death came last to the fiercest of the contestants in this story. Hard-core secessionist Heiskell served out his term as attorney general and practiced law until 1892, and enjoyed his retirement until his death in 1913 at the ripe age of 89, having started a law firm that is one of the predecessors to today’s Baker, Donelson. His Radical antagonist, Eldad C. Camp, outlived even Heiskell, dying in 1920 after amassing quite a fortune in mining and other interests.
The quo warranto cases are so obscure that they never even became a footnote in Tennessee legal history. Whipped up by politics made all the more partisan because the contending parties were only a few years before literally shooting at one another, the cases were resolved as cases driven by politics often are, by the passage of time, the softening of passions, and a judge’s calm consideration of the best interests of the public.
- Statutes at Large, Proclamations and Treaties of the United States of America, December 1867, to March, 1869, Vol. 15 (Boston: Little, Brown & Company, 1869), 708.
- Slaughter-House Cases, 83 U.S. 36, 125 (1873) (Swayne, J., dissenting)
- Horace Edgar Flack, The Adoption of the 14th Amendment, (Baltimore: Johns Hopkins Press, 1908), 127-33.
- Robert E. Corlew, Tennessee: A Short History, 2nd ed. (Knoxville: University of Tennessee Press, 1990), 331-39.
- “Who Shall Be Governor,” Nashville Union and American, November 14, 1868; “A Radical Protest,” Nashville Union and American, March 3, 1869.
- Corlew, Tennessee: A Short History, 342-45, 349.
- Journal of the Proceedings of the Convention of Delegates Elected by the People of Tennessee to Amend, Revise, or to Reform or Make a New Constitution for the State, (Nashville: Jones, Purvis & Co., 1870), 8.
- “Who May be Members of a State Convention?” Memphis Appeal, October 3, 1869; Robert H. White, ed., Messages of the Governors of Tennessee, (Nashville: Tennessee Historical Commission, 1963) 6:84; Corlew, Tennessee: A Short History, 349-51.
- C. Ellen Connally, “The Use of the 14th Amendment by Salmon P. Chase in the Trial of Jefferson Davis,” 42 Akron L. Rev. 1165 (2009). This article provides a good synopsis of the legal and political issues surrounding Davis’s prosecution.
- Griffin’s Case, 11 F. Cas. 7, 15 (C.C.D. Va. 1869).
- Chase’s opinion in Griffin was printed on the front page of the Nashville Union and American, a Conservative organ. “Important Legal Decision,” Nashville Union and American, May 14, 1869.
- “Reconstruction,” Memphis Daily Appeal, March 16, 1870; “Supreme Judges — Who are Qualified,” Nashville Union and American, March 31, 1870.
- “To forstall squabbling about the initial makeup of the Court, a schedule to the Constitution provided that the Court should at first be composed of six judges, two from each grand division. The first judge to resign after January 1st, 1873 would not be replaced. This schedule left to chance the choice of which division would be underrepresented.” R. Ben Brown, “The Tennessee Supreme Court During Reconstruction and Redemption,” in James W. Ely, ed., A History of the Tennessee Supreme Court, (Knoxville: University of Tennessee Press, 2002), 121.
- “Judicial Convention,” Nashville Union and American, July 12, 1870; “Judge Nicholson’s Disabilities,” Nashville Union and American, July 13, 1870. The issue also affected the election for governor scheduled for November, 1870. The Conservatives had four potential nominees, John C. Brown, William B. Bate, William A. Quarles, and Arthur S. Colyar. Brown, Bate and Quarles were former Confederate generals, and Colyar was a Confederate congressman. Bate was clearly disqualified as a prewar member of the General Assembly. Quarles held judicial office of a temporary nature during the disability of the regular judge, and argued that as he held the office “locum tenens,” the disability did not apply. Brown and Colyar not only did not hold prewar office, but also received a pardon prior to the adoption of the 14th Amendment. All but Brown eventually dropped out and Brown was elected.
- Compiled from Ely, A History of the Tennessee Supreme Court, Oliver P. Temple, Notable Men of Tennessee (New York, 1912), The Tennessee Encyclopedia of History and Culture, and Caldwell, Sketches of the Bench and Bar of Tennessee, (Knoxville, 1898).
- “Political Disabilities,” Nashville Union and American, August 18, 1870; “The Fourteenth Amendment,” Memphis Appeal, August 18, 1870; “Political Disabilities,” Nashville Union and American, September 2, 1870. Some years later, the United States Attorney General agreed that a pardon prior to the ratification of the 14th Amendment neutralized a Section 3 disqualification. 18 Op. Att’y Gen. 149 (1885).
- “Quo Warranto,” Nashville Union and American, October 12, 1870; “Enforcing the Fourteenth Amendment,” Fayetteville Observer, October 13, 1870; “The Knoxville Press and Herald,” Nashville Union and American, July 11, 1872; “Political Disabilities — The Question in the Federal Court,” Nashville Union and American, October 20, 1870. In state court, the election of W. W. Ward to the post of chancellor for the 5th Chancery Division was challenged on the basis of Ward’s ineligibility under Section 3. The case was heard by Confederate veteran (and future governor) Chancellor A. S. Marks who denied an injunction on the basis of the ex post facto operation of the disability. “Political Disabilities,” Nashville Union and American, October 18, 1870.
- “Important Legal Proceedings,” Knoxville Chronicle, October 23, 1870; “The Supreme Court and the Fourteenth Amendment,” Knoxville Weekly Chronicle, November 2, 1870; “The Movement to Radicalize the Supreme Court,” Columbia Herald, November 2, 1870.
- Caldwell, Sketches of the Bench and Bar of Tennessee, 306-7; “The Quo Warranto Cases,” Nashville Union and American, November 6, 1870; “The City,” Nashville Union and American, November 8, 1870; “Trigg and Emmons,” Knoxville Daily Chronicle, February 14, 1871; “The Quo Warranto Cases,” Nashville Union and American, February 3, 1871.
- With the assistance of Eastern District historian Don Ferguson and Shane Bell of the National Archives, the author was able to review images of the docket book with entries copying the various indictments, bonds, and other entries. I am also indebted to Judge Curtis Collier and Deputy Clerk John Medearis for their assistance in accessing sources.
- Marvin Byrd, A Unionist in East Tennessee: Captain William K. Byrd and the Mysterious Raid of 1861, (Charleston: The History Press, 2011), 144.
- Nelson was also one of Andrew Johnson’s defense counsel during his impeachment trial.
- Caldwell, Sketches of the Bench and Bar of Tennessee, 311-14;” Resignation of Judge Nelson,” Knoxville Daily Chronicle, November 30, 1871; Act of May 22, 1872, 17 Stat. 142; Proclamation of June 1, 1872, Papers of Ulysses S. Grant, 23:155.
- “The Courts”, Knoxville Daily Chronicle, September 17, 1872. No reference to the disposition of Heiskell’s cases could be located, but he served as attorney general until 1878. The Act of May 22, 1872 presumably resolved his case.
- Camp to Grant, November 3, 1871, Papers of Ulysses S. Grant, 22:427.
- ”Death of Judge Nicholson,” Memphis Daily Appeal, March 24, 1876; “Death List of A Day,” New York Times, July 30, 1901; “A Tribute to the Memory of Hon. Joseph B. Heiskell,” 127 Tenn. 733; “Major Eldad C. Camp,” http://wate.net/wate/history/major-camp accessed April 9, 2013.
SAM D. ELLIOTT is a member of the Chattanooga firm of Gearhiser, Peters, Elliott and Cannon PLLC. He is a past president of the Tennessee Bar Association and the Chattanooga Bar Association, and the author or editor of several books and articles on Tennessee in the Civil War era. He dedicates this article to the memory of Charlie Gearhiser.