The years 2011-2015 mark the sesquicentennial of the Civil War. Numerous state and local governments, as well as private organizations, are commemorating the great events of 150 years ago with markers, books, and countless events. Lawyers, too, can look back on significant legal issues that arose out of the war, such as the suspension of habeus corpus, military trials, the Emancipation Proclamation and the passage of the Thirteenth and Fourteenth Amendments to the United States Constitution. The turmoil of an attempted revolution created new issues and forced the reexamination of others thought to be settled.
As Tennessee was in the front-line of the fighting for a good part of the war, the struggle saw the constitutional government of the state slowly grind to a halt, a process that started even before the first Federal gunboats sailed down the Tennessee River from Kentucky in early February 1862. Confederate Tennessee’s legislative branch, the General Assembly, fled Nashville as a result of that invasion and after a brief session in Memphis in March 1862, adjourned, not to meet again until called into session by Unionist Gov. William G. Brownlow in April 1865. The state’s chief executive, Gov. Isham G. Harris, began the war in April 1861 with a defiant message to the United States Government, and ended it in 1865 fleeing to Mexico with a price on his head.
While the various factors that contributed to the demise of the other branches of the Confederate state government eventually also caused the judicial branch to cease operations, there were unique challenges to the maintenance of the justice system in the face of not only invasion, but in many ways the transformation of society from a civil to a military footing. In the end, the strain and disruption caused by the war slowly eroded the ability of Confederate Tennessee’s judicial branch to keep the justice system functioning.
Under Tennessee’s Constitution of 1796, the Tennessee judicial system, including the Supreme Court, existed solely at the discretion of the General Assembly. But the Constitution of 1834 expressly established a three-judge supreme court, whose members were to be from each of the three grand divisions, who were to be at least 35 years of age, and who would serve 12-year terms. The legislature also was given the power to establish and provide for the lower courts. Judges of all the courts were elected by the General Assembly. A change, however, occurred when the Constitution was amended in 1853. The judges of all the courts were to be popularly elected, and the terms shortened to eight years.
The inferior courts that operated under the Constitution of 1834 are familiar institutions to lawyers today. In 1835, the General Assembly authorized three chancery divisions, one in each of the grand divisions, and 11 judicial circuits. By 1860, there were seven chancery divisions and 16 judicial districts. Chancellors enjoyed traditional equity jurisdiction, and circuit judges heard both civil and criminal cases. Additionally, justices of the peace heard certain probate matters and small claims. There was no court of appeals.
It is beyond the scope of this article to discuss the complex and varied reasons as to how and why Tennessee’s court system ceased to function within the United States of America and became one of 11 Confederate state systems. It is sufficient to note that Tennessee left the Union in May 1861, subject to a referendum that confirmed a fait accompli that June. And in joining the Confederate States of America, Tennessee joined its war against the United States and soon found itself in the front lines of that struggle.
In the months that followed, the challenges of mobilization, war and invasion affected the administration of justice in the state. To the credit of the judiciary, especially on the trial level, there was a fine effort to continue the normal judicial process until Federal invasion (or liberation, depending on one’s views) disrupted the functioning of the organs of the state and local government. That invasion, in addition to several other factors, combined to at first slow, and then finally stop the operation of the courts on all levels.
In the spring of 1861, the General Assembly took several steps that affected the functioning of the courts. First, it enacted a statute closing the courts of the state to “any citizen or citizens of either of the states of the late United States of America, except Kentucky, Missouri and Maryland now adhering to the government of which A. Lincoln claims to be President …” It prohibited northerners from being appointed administrators or executors of estates, and further prohibited their probating wills in Tennessee. The legislature also requested, but did not mandate, that the Supreme Court and the circuit and chancery courts of the state suspend hearing civil cases for a period of 12 months. Only criminal cases and cases where both parties wanted the court to proceed were approved. This appears to have been honored by the Courts. On Aug. 15, 1861, a notice appeared in the Nashville Union and American from Chancellor Bromfield Ridley of the Third Chancery Division in Middle Tennessee, notifying the public that in accordance with the request of the legislature, the chancellor would be hearing only cases that were ex parte in nature, and such cases that the parties on both sides might agree to try.
The General Assembly’s principal reason for requesting a voluntary suspension of legal proceedings was that conditions were too unsettled for civil litigation. As Tennessee had jumped squarely into the Civil War on the side of the South, the state government took immediate steps to place the state on a war footing, including raising, equipping and training a state army known as the Provisional Army of Tennessee.
The demand for manpower occasioned by such was also a significant factor in the operation of the trial courts.
Census records show there were 1,067 lawyers in Tennessee in 1860. Data from the Biographical Directory of the Tennessee General Assembly indicates that there were approximately 200 members of that body at one time or another who were both lawyers and of military age in 1861. Of that number, 166 went into the Confederate or, in some cases, the Federal army. By rough extrapolation, it is possible to estimate that at least 60 percent and perhaps as many as 85 percent of the lawyers in the state went into one of the two armies. As corroboration, a scholarly analysis of 100 East Tennessee Confederate leaders found that 22 were lawyers, and another four were law students. The field grade officers of the new volunteer armies were frequently lawyers. Peter Turney, future governor and chief justice of the Tennessee Supreme Court, commanded the 1st (Turney’s) Tennessee Regiment. George Maney, a lawyer, was the colonel of the 1st (Maney’s) Tennessee Regiment. Lawyer J. Knox Walker was the commander of one of Tennessee’s two 2nd Tennessee regiments, and lawyer, future governor and future United States Senator William B. Bate commanded the other. Lawyer John Calvin Brown, who in the future would be president of the 1870 Constitutional Convention and governor, commanded one of the two 3rd Tennessee Regiments. A review of other Tennessee officers in the Confederate army reveals that many other lawyers served.
Other lawyers of military age were unable to practice because of their political beliefs. For example, lawyer and future governor DeWitt Clinton Senter, a prewar member of the legislature, was a Unionist, and for that reason was imprisoned by the Confederate government for a period of six months. Lawyer and pre-war state senator Andrew Jackson Fletcher, the purported originator of the term “carpetbagger,” left the state and spent the war in Indiana, but returned to be Secretary of State for five years.
The lack of lawyers was not the only problem. The 1860 census indicates that there were approximately 400,000 white males of all ages in Tennessee. And military records show that about 187,000 served in the Confederate army, and another 51,000 served in the Union army. In the 1860s, most litigants were white men. Judges, clerks and jurors were white men. For the court system to run normally, it was necessary for there to be white men to participate. This is confirmed by an item in the May 16, 1862, Athens Post, which reported there were few attendees at a court date in Monroe County that week. “The truth is a large portion of the male population has gone to the wars. Nobody much account left at home except the womenfolk who are cultivating the fields in the absence of their husbands and brothers.”
Federal invasion had a profound effect on the functioning of the Confederate courts. In February 1862, the Union captured Fort Henry on the Tennessee River, and Fort Donelson on the Cumberland River. These initial defeats, and the failure of the Confederates to reverse them at the Battle of Shiloh, eventually resulted in the capture of Nashville, Memphis, Jackson, Clarksville, Murfreesboro and many other areas in Middle and West Tennessee. And areas that were not permanently occupied by the Federals had the elements of the Confederate state government disrupted.
The Confederate government reacted swiftly to these reverses. On April 8, 1862, even as rebel forces were retreating from the terrible field of Shiloh, Jefferson Davis suspended the writ of habeas corpus and all civil jurisdiction in East Tennessee, with the exception of a few minor matters. Doubtlessly, Davis’s action contributed to the slow court day in Monroe County noted above. East Tennessee, which ironically voted against secession, was where the government of Confederate Tennessee functioned the longest. The extant newspapers from the area, including the Knoxville Register, the Athens Post and the Chattanooga Daily Rebel, contain a number of routine items and advertisements relative to estate matters, attachments, sequestration sales, and notices by publication for those matters, and even one divorce, almost up to the very time in September 1863 when much of East Tennessee came under Federal control. In keeping with the request of the legislature and for a while, the order of President Davis, the lack of reference to the same in these newspapers strongly suggests that normal civil cases were at either a standstill or an extremely low level.
Criminal cases continued, although with many of the men in the army, the dockets were most likely somewhat lighter as well. The Nov. 5, 1861, Memphis Appeal, for example, reported on a number of mundane criminal cases, but they likely could not compare to the case that occurred across the state six months later. A reporter for the Athens Post sat in on a case tried in Benton, the county seat of Polk County, of a preacher charged with “yielding to the promptings of the world, the flesh and the devil and of being concerned with things below more than things above.” The reporter wrote that “the trial excited a great interest, and excited the grandest display of forensic eloquence as has been our good fortune to listen to.” When the correspondent left on his journey back to McMinn County, the jury was still debating the case under the shade of the locust trees outside the courthouse.
Prior to secession, Tennessee was divided into the three Federal court districts we know today, but all three districts were served by a single United States district judge. In 1861, the district judge was West H. Humphreys, a former state attorney general and reporter. A strong secessionist, in the heady days after the attack on Fort Sumter and President Abraham Lincoln’s call for troops, Judge Humphreys instructed the Federal grand jury charged the grand jury that Lincoln’s request for troops was unconstitutional, that Tennessee’s Gov. Isham G. Harris was right to refuse Lincoln, and that in the current state of the country, there was no such thing as treason.
Humphreys became the Confederate States district judge for Tennessee, without the formality of resigning his lifetime appointment to the Federal bench. Federal authorities took a dim view of this, and Humphreys was tried in absentia by the United States Senate on seven articles of impeachment, and removed from his Federal post in 1862. Undeterred, Confederate States District Judge Humphreys heard at least 300 cases involving anti-Confederate offenses, habeus corpus petitions, and sequestration of Unionist property. Somewhat as he was loathe to label pro-Confederate sentiments as treason to the Union, he proved to be quite lenient with Unionist suspects, to the irritation of Confederate military authorities.
The tumult of war also affected the operation of the state’s highest court. In 1861, the judges of the Tennessee Supreme Court were Robert J. McKinney, Robert L. Caruthers and Archibald Wright. The Irish-born McKinney practiced law in Knoxville and upper East Tennessee and was appointed to the bench in 1847. In early 1861, he served as one of three peace commissioners sent to Washington by Gov. Harris. When up for re-election in 1862, he protested the bona fides of his secessionist loyalties; but his support of the Confederate cause appears to have been lukewarm at best.
West Tennessee’s member on the court was large-bodied Archibald Wright, a close political ally of Gov. Harris. Wright was appointed to the court in 1858 when Justice William R. Harris, the governor’s brother, was killed in a steamboat explosion. Wright had two sons in the Confederate army and appears to have been much more interested in following them than in his judicial duties. He served as a volunteer aide to Maj. Gen. B. F. Cheatham at the Battle of Shiloh, and on at least one occasion in 1863 served as a sort of unofficial attorney general for Gov. Harris.
Robert L. Caruthers was Middle Tennessee’s representative on the court. 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, and quickly resigned his seat on the court to become a member of the provisional Confederate Congress.
While the end of April 1861 saw Gov. Harris and the General Assembly fomenting revolution in Nashville, the first of that month the Supreme Court was deciding cases in Jackson. The April 16 edition of the Memphis Appeal contains a letter reporting from the proceedings at Jackson that tells us that on April 13, “the supreme court is still in session, and the judges are deciding cases with their usual celerity. The stay law of the last legislature they have knocked into ‘pi,’ deciding it to be unconstitutional and void in every particular.” The April 23, 1861, edition of the Appeal indicates that while at Jackson, the court decided five cases relating to the claims of the heirs of General James Winchester dealing with the title to real estate in Memphis and its suburbs, at least relating to the original proprietors and their heirs.
Yet, once again reflecting the disruption caused by the war, neither of these important cases appears in Tennessee Reports. Indeed, for the entire year of 1861, only two cases are reported, one from the term in Jackson in April 1861, Jennings v. Joiner & Norris, 41 Tenn. 645, relating to the steamboat Naomi, and one from the September term in Knoxville, Taliaferro v. Wright, 1 Shannon 178, deciding an issue on the multifariousness of pleading. To add to the confusion, the Jennings case actually appears in the volume 1 Coldwell. Thomas H. Coldwell of Shelbyville was the first attorney general and reporter after the Civil War. And the Taliaferro case is indicated to have been decided at the September 1861 term in Knoxville, and its author Justice Caruthers, even though by that point Caruthers was a member of the provisional Confederate Congress. Service in the Confederate army appears to again have been the problem, as attorney general and reporter, John W. Head became the colonel of the 30th Tennessee Regiment. Indeed, his last volume of Tennessee Reports carries a note of apology: “Most of this volume was prepared during the excitement of the winter of 1861. The remainder has been prepared in the midst of professional engagements. This, I trust, will cause the errors it may contain to be overlooked by the profession.”
The September 1861 term in Knoxville was fairly short. Caruthers’ temporary replacement, Edwin H. Ewing, was sworn in by Judge McKinney, but served only one month, as William F. Cooper of Nashville was elected to that position in October 1861. An item in the Memphis Appeal noted: “The [Knoxville] Register understands that there is a general feeling among the members of the bar, and of the suitors in court, owing to the state of the country, and the absence of Judge Wright, to postpone all litigated cases to a future term.” The court met again in Nashville on Dec. 2, 1861, but there is little indication of what business it was able to accomplish.
As noted above, the disasters of February 1862 resulted in a Federal invasion of the state. Only Justice McKinney showed up for a special session in Knoxville in March of that year, and while Jackson was still unoccupied in April 1862, there is no indication that the court attempted to meet at a location that was essentially behind enemy lines. A deputy clerk opened court for a week from Sept. 8 to Sept. 13, 1862, in Confederate Knoxville, but no one showed up. And that was the end of the Tennessee Supreme Court until the spring of 1865.
What happened to the wartime justices of the Supreme Court? Notwithstanding some doubts about his devotion to the “Cause,” McKinney was re-elected in a Confederate election in 1862, after protesting his loyalty to the “Cause.” He died in 1875, having assembled a good-sized estate. Justice Wright had two sons in the Rebel army, but one was killed serving in his artillery battery at Murfreesboro. Notwithstanding this crushing loss, Wright stayed with the Confederate Army of Tennessee to the end. Having lost a good portion of his substantial wealth in the war, Wright died in 1884. His surviving son Luke Wright eventually became the United States secretary of war, governor of the Philippines, and ambassador to Japan. His oldest daughter married William C. Folkes, who himself became a justice of the Tennessee Supreme Court.
Justice Caruthers only served a term in the provisional Confederate Congress and was the choice of Confederate Tennesseans to succeed Gov. Harris in 1863, but he could not constitutionally take his seat because that could only occur while the General Assembly was in session. Caruthers was instrumental in starting Cumberland Law School and died at the age of 82, in the words of his memorial in Tennessee Reports, “without a ruffle to disturb his life, or an enemy to disturb its happiness and enjoyment.” And Justice William F. Cooper got a second chance. He was elected chancellor in 1872 and then elected back on the Supreme Court in 1878, serving six years. He later left the state, moving to New York City to enjoy the “scholarly advantages” of that metropolis. He eventually died at age 90 in 1909, having made regular payments to certain family members and a former slave prior to becoming incompetent two years or so before his death.
The story of Tennessee’s Confederate Courts is one where the norms and practices of the past could not keep up with an attempted revolution, invasion, and the disruption of society caused by war. But Tennessee’s Confederate experience did not significantly break the flow of the ongoing administration of justice in the state, and the actions of the Confederate courts were not all for naught. In 1865, the Unionist government passed various schedules to the Constitution intended to reverse the effect of the “rebellion,” one of which stated that “all laws, ordinances and resolutions, as well as all acts done in pursuance thereof, under the authority of the usurped State Government, after the declared Independence of the State of Tennessee, on or after the 6th day of May 1861, were unconstitutional, null and void from the beginning.” In September 1865, however, the restored Supreme Court ruled that even if a court acted under the authority of the (Confederate) state after the May 6, 1861 date, that as long as the courts acted under law existing before that date, their actions were valid, even though they acted under a state government that “may, at the time, have been in the hands of those who had usurped its authority.” The Supreme Court observed that the constitutional schedules were not:
intended to overthrow the judiciary of the country, and unsettle their adjudications for years, they were designed to give strength and efficiency to this great right arm of Justice, to which all, however high or low, may appeal, with equal confidence. They were designed to build up law and promote good order; to restore the State Government to its ancient moorings; to allay the storm of agitation, and to give confidence, peace and tranquility to the public mind, by a restoration of civil government, and throwing wide open all the avenues which lead to the temple of Justice, where all might demand and receive according to their merits, without sale, denial or delay; and it is the duty of the Courts of the country to construe them with reference to the objects for which they were designed.
This article is an adaptation of an address Sam D. Elliott gave to the Tennessee Supreme Court Historical Society on Oct. 4, 2011.
- Timothy S. Huebner, “Judicial Independence in an Age of Democracy, Sectionalism, and War, 1835-1865” in James W. Ely, Jr., ed., A History of the Tennessee Supreme Court, (Knoxville: University of Tennessee Press, 2002), 66, 88.
- Charles A. Miller, The Official and Political Manual of the State of Tennessee, (Nashville: Marshall & Bruce, 1890), 30-42.
- Tennessee did not secede, it asserted its constitutional right of revolution and declared its independence. See Sam D. Elliott, “Tennessee’s Declaration of Independence: Armed Revolt and the Constitutional Right of Revolution,” Tennessee Bar Journal, 44 (December 2009): 25.
- Public Acts of Tennessee, 33rd General Assembly, Extra Session (April 1861), ch. 23, sec. 1 and 2.
- Public Acts of Tennessee, 33rd General Assembly, Extra Session (April 1861), Resolution No. 31.
- “A Card from Chancellor Ridley”, Nashville Union and American, Aug. 15, 1861.
- For the purposes of this article, “military age” was considered to be 18-45.
- W. Todd Groce, Mountain Rebels: East Tennessee Confederates and the Civil War, 1860-1870 (Knoxville: University of Tennessee Press, 1999), 50-53.
- Dan M. Robison, Biographical Directory of the Tennessee General Assembly, vol. 1, 1796-1861 (Nashville: Tennessee State Library and Archives and Tennessee Historical Commission, 1975), 251, 656-57.
- Tennessee Secretary of State, Tennessee Blue Book 2009-10, 418; “Monroe County,” Athens Post, May 16, 1862. Of the figures relating to the Federal side, approximately 20,000 would have been U.S. Colored Troops.
- Frank Moore, ed., The Rebellion Record: A Diary of American Events (New York, 1861-68) 4:502. Davis’ decree lasted until October 1862.
- “Criminal Court,” Memphis Appeal, November 5, 1861; Athens Post, Sept. 19, 1862. Unfortunately, the author was unable to determine the outcome of the worldly preacher’s case.
- Act of April 29, 1802, 2 Stat. 165; Act of June 18, 1839, 5 Stat. 313.
- “Treason,” Nashville Union and American, April 17, 1861.
- “West W. Humphreys and the Crisis of the Union,” Tennessee Historical Quarterly, 34 (Spring 1974) 48, 56-68; see also (Knoxville) Holston Journal, Feb. 26, 1863. After the war, Humphreys practiced law and devoted his energies to the temperance movement.
- Huebner, “Judicial Independence in an Age of Democracy, Sectionalism and War,” 85; “Judge McKinney’s Position,” Nashville Republican Banner, Feb. 7, 1861; “Supreme Judge,” Athens Post, May 30, 1862; “Judge McKinney”, Athens Post, June 13, 1862.
- “Tribute to the Memory of Judge Archibald Wright,” 82 Tenn. 723 (1885); Isham Harris to J. E. R. Ray, April 9, 1863, Harris Papers, TSLA.
- Robison, Biographical Directory of the Tennessee General Assembly, 1:132-33.
- “Letter from Jackson,” Memphis Appeal, April 16, 1861; “The Winchester Cases,” Memphis Appeal, April 23, 1861.
- See, generally, volume 41 of Tennessee Reports, volume 1 of Shannon’s Reports, and Huebner, “Judicial Independence in an Age of Democracy, Sectionalism and War,” 95; “The Supreme Court Met at Knoxville,” Memphis Appeal, Sept. 12, 1861; 40 Tenn. (3 Head) vi (1861); see Andy Bennett, “Tennessee Attorney General’s Office,” Tennessee Bar Journal (April, 2000), p. 12.
- “The Supreme Court,” Memphis Appeal, Sept. 13, 1861; “The Supreme Court,” Nashville Union and American, Dec. 12, 1861; Huebner, “Judicial Independence in an Age of Democracy, Sectionalism and War,” 95.
- Ibid., 96.
- Joshua W. Caldwell, Sketches of the Bench and Bar of Tennessee (Knoxville: Ogden Bros. & Co., 1898), 157-58, 160-63, 367; “General Wright, Once Secretary of War, Is Dead,” New York Tribune, November 18, 1922.
- “Tribute of Respect to the Memory of R. L. Caruthers,” 77 Tenn. 757, 761 (1882); “An Ex-Justice Incompetent,” New York Times, April 22, 1909; “Ex-Slave’s Annuity Renewed by Court,” New York Times, July 12, 1907; “Judicial Son of Tennessee,” Nashville Banner, May 8, 1909.
- Section 5 of the Schedule to the Amendments of the Constitution of Tennessee, adopted Feb. 22, 1865.
- Parks v. Jones, 42 Tenn. 172, 176 (1865).
- Ibid., at 177.
SAM D. ELLIOTT is a member of the Chattanooga firm of Gearhiser, Peters, Cavett, Elliott & Cannon. He is a past president of the Tennessee Bar Association and a past president of the Chattanooga Bar Association. This article is an adaptation of an address he gave to the Tennessee Supreme Court Historical Society on Oct. 4, 2011.