TBA Law Blog

Posted by: Sam Elliott on Dec 1, 2017

Journal Issue Date: Dec 2017

Journal Name: December 2017 - Vol. 53, No. 12

You cannot get back … without some irregularity

On March 12, 1862, former Tennessee governor and United States Senator Andrew Johnson arrived in Nashville with the historically unprecedented task of facilitating the return of a seceded state back into the Union. Appointed military governor with the rank of brigadier general in the United States Army, Johnson was to serve during the pleasure of Abraham Lincoln, president of the United States, “or until the loyal inhabitants of that state shall organize a civil government in conformity with the Constitution of the United States.” As events would transpire, Johnson would serve in that capacity almost three years, leaving at the end of February 1865 to assume the vice-presidency of the United States. With the formal restoration of civilian government scheduled for six weeks from his departure for Washington, Johnson could justifiably proclaim that “a new era dawns upon the people of Tennessee.”[1]

Former Tenessee Governor and United States Senator Andrew Johnson was a Democrat who ran with Lincoln on the National Union ticket. He became the 17th president of the United States after Lincoln’s assassination in 1865.


Former Tennessee Governor and United States Senator Andrew Johnson was a Democrat who ran with Lincoln on the National Union ticket. He became the 17th president of the United States after Lincoln’s assassination in 1865.

Ultimately, it was Johnson’s job to execute Abraham Lincoln’s reconstruction policy. Both the president and his military governor were initially convinced that deep down, the masses in Tennessee and, for that matter, the rest of the seceded states were loyal to the Union but had been deluded by their fire-eating secessionist leaders. But by the start of the summer of 1862, Johnson at least realized that loyalty to the Confederacy ran deep in large parts of Middle and West Tennessee. Pre-war political alliances made a difference too, as most of Johnson’s fellow Democrats were secessionists, many of whom were in exile behind Confederate lines. Johnson also clashed with the federal army command, whose goals were sometimes at cross-purposes with those of the military governor.[2]

Then, there were the Rebels, too. One of Johnson’s bitterest prewar political rivals was his Confederate counterpart, Gov. Isham G. Harris, an enmity that was only intensified by their choosing different sides in 1861. Even though Harris’s Confederate state government’s control over Tennessee eroded until it vanished, for all practical purposes, after the Union victory at Chattanooga on Nov. 25, 1863, Rebel forces, large and small, prowled the state to the very end of the war, and Nashville itself was under threat in the Fall of 1862 and again in late 1864. Johnson later complained that “nearly every [effort to restore civil government] has been thwarted and arrested by the rebel forces.”[3]

Another significant question in the larger issue of the restoration of Tennessee’s civilian government was emancipation. Tennessee was a slave state and legally continued to be so. Lincoln started the war hoping that a policy of restraint toward the “peculiar institution” would pay dividends in the reconciliation of the South. But as the conflict progressed, he deemed an attack on slavery a means of winning the war, issuing the Preliminary Emancipation Proclamation in September 1862 to the effect that slaves in Confederate-controlled areas on Jan. 1, 1863, would be considered free. Johnson and seven other Tennessee Unionists asked Lincoln to exempt the state from the operation of the proclamation, arguing that the measure would have a negative effect on Unionist efforts in Tennessee. Even though Tennessee was exempt, occupation of the state by federal military forces naturally eroded the institution, as slaves fled to Union-occupied areas for food, shelter, work and most importantly, freedom.[4]

On Dec. 8, 1863, with only upper East Tennessee still under Confederate occupation, Lincoln issued a proclamation outlining a plan for returning seceded states to the Union. Former rebels (except some high ranking officers and officials) who took the following oath of allegiance to the United States would receive amnesty:

I, ___ __ ___ , do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified or held void by Congress, or by the decision of the Supreme Court; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the Supreme Court. So help me God.

Under Lincoln’s plan, whenever the number of persons in a state taking the oath reached 10 percent of the voters in that state in the 1860 presidential election, they could form a state government the president would recognize as legitimate.[5]

The new oath, however, was not enough for Johnson. The oath was available to rank and file Rebels without regard to their past activities during the rebellion or their current sympathy for the Confederacy. He feared that the leniency of Lincoln’s proclamation would enable his political opponents, a combination of former Rebels and Conservative Unionists, to gain control of the state. The military governor’s approach therefore was not amnesty, but the complete suppression of the still substantial Rebel sympathies of a large part of the population. In Johnson’s mind, the Rebel sympathizers were the source of the state’s troubles and should not get off so easily. One of the governor’s frequent themes was: “Treason must be made odious, [and] traitors must be punished and impoverished.”[6] Accordingly, he formulated his own, more severe oath, which thereafter became known as the “Damnesty Oath”:

I solemnly swear that I will henceforth support the Constitution of the United States and defend it against the assaults of all its enemies; that I will henceforth be and conduct myself as a true and faithful citizen of the United States, freely and voluntarily to be subject to all the duties and obligations, and entitled to all the rights and privileges of such citizenship; that I ardently desire suppression of the present insurrection and rebellion against the government of the United States, the success of its armies and the defeat of all those who oppose them, and that the Constitution of the United States, and all the laws and proclamations made in pursuance thereof, may be speedily and permanently established and enforced over all the people, states and territories thereof; and further, that I will hereafter aid and assist all loyal people in the accomplishment of all these results. So help me God.[7]

The new oath required the taker to “ardently desire suppression of … the rebellion,” a significant addition to the simple oath prescribed by Lincoln. The requirement caused both confusion and consternation in Tennessee. Would those who had already taken Lincoln’s oath now be required to take Johnson’s?[8]

Tennessee’s attorney general, Horace Maynard, published a letter distinguishing Lincoln’s oath as an amnesty oath as granting a “full pardon” and restoring property rights, except rights in slaves. Johnson’s oath, on the other hand, was an “oath of allegiance.”

By taking it, the disloyal man is made no better, surely, than one who had always been true to his Government. And if to keep treason from the ballot box it is found convenient to prescribe the oath of allegiance, even to the soldiers fighting and bleeding under the stars and stripes in defense of the country, before he shall be permitted to vote, shall not as much be required of one who, it may be, has been fighting under the Rebel flag for the destruction of his country, although by taking the oath of amnesty he has obtained full pardon for his crimes and has secured his property from confiscation. Should the pardoned Rebel be more favored at the polls than the loyal man who needs no pardon? This is the question, and it requires no answer.

The Amnesty Oath to the United States, as signed by General Robert E. Lee. — Courtesy of U.S. National Archives


The Amnesty Oath to the United States, as signed by General Robert E. Lee.

— Courtesy of U.S. National Archives

Maynard further complicated matters by asserting that state citizenship had been forfeited by support of the rebellion and that in fact the state constitution’s requirement of six months’ citizenship to vote meant that a formerly disloyal person had to wait six months after taking the “Damnesty Oath” to vote.[9]

Would President Lincoln consent to Johnson’s more stringent oath? Johnson went to Washington to meet with the president and received the chief executive’s endorsement, Lincoln writing that Johnson’s oath was “entirely satisfactory” to him and that there was, in his mind, “no conflict” between the two oaths. The president and his military governor were in agreement “that only unconditional Union men should have political power in Tennessee.”[10]

In March 1864, elections were held on the local level, and the turnout was spotty, as only 40,000 voters elected positions in about 2/3 of the state’s counties. Even though unsettled conditions in parts of the state could be blamed, the “Damnesty Oath” was blamed in some quarters for the lack of voter turnout. In some areas, low or no voter turnout allowed Johnson to install hard-line supporters in several offices. Johnson had prevailed both with the president and in the elections, but there was still much work to be done to cement unequivocal Conservative support for the Union.[11]

The federal war strategy changed with Lt. Gen. Ulysses S. Grant’s appointment as the new commander of all Union forces in the field. Efforts would be made on several fronts to exhaust the already reeling and overextended Confederacy. Chief among them were dual advances against Richmond and Atlanta, which resulted in weeks of grinding and bloody combat, costing both sides many casualties. Republicans began to despair of Lincoln’s chances in the election of 1864, especially as the Democrats nominated Gen. George B. McClellan, who ran on a platform of a negotiated peace. Part of the Republican answer was to put a hard-line Unionist Democrat on the ticket with Lincoln as a vice-presidential candidate. Johnson, who fit the bill in that regard, also had the advantage of southern origin, thus making the ticket that of the “National Union Party.” In June 1864, Johnson received the nomination.[12]

Isham Green Harris served as governor of Tennessee from 1857 to 1862. — Courtesy of Tennessee State Library and Archives


Isham Green Harris served as governor of Tennessee from 1857 to 1862.

— Courtesy of Tennessee State Library and Archives

Tennessee’s participation in the election would be an important step in resuming its place in the Union. Of course, it was crucial that the state support the Lincoln-Johnson ticket, which ran on the platform of emancipation. Conservative Unionists thought that went too far and noted, truthfully, that emancipation was against the will of the majority of the state’s voters. A convention of Unionists of all stripes in Nashville resulted in the Radicals drowning out Conservative speeches. When the Conservatives walked out, the remaining delegates resolved that voters in the election would be required to take an oath not only pledging support of the government but also opposing peace with the Rebels. Johnson formalized this requirement on Sept. 30 for all voters except those of “established loyalty” (as determined by Johnson’s poll workers). Those not fitting that description had to subscribe to an oath that contained a clause requiring the voter to “cordially oppose all armistices or negotiations for peace with rebels in arms,” effectively a repudiation of the McClellan platform. A Conservative delegation from Tennessee approached Lincoln, protesting that Johnson had imposed a qualification outside the statutory law of Tennessee. Lincoln, suspicious that the delegation was one of his opponent’s tricks, replied to their complaint “that I expect to let the friends of George B. McClellan manage their side of this contest in their own way, and that I will manage my side of it in my way.” Later, Lincoln more formally replied to the effect that as the national executive, he had no role in state matters of this nature and that Johnson’s requirement was “an independent movement of, at least, a portion of the loyal people of Tennessee.” Soon afterward, McClellan’s supporters in the state withdrew his name from the ballot in the state. Lincoln and Johnson won the state (and the election as a whole), but in the end Congress rejected the state’s vote as invalid.[13]

Soon after the election, the Union Executive Committee for East Tennessee called for a state convention to meet in Nashville on Dec. 19 for the purpose of choosing delegates for a state constitutional convention. On account of the Confederate incursion into the state in late 1864 that was defeated at Franklin and then Nashville, the date was changed to Jan. 8, 1865, the auspicious 50th anniversary of Andrew Jackson’s victory at New Orleans. The membership of the convention was suspect — in excess of half of the more than 500 delegates came from only 14 counties, and a number had a tenuous connection from long absence from their home counties, while others simply attended on a self-appointed basis. Accordingly, the initial business of the convention was to determine what individuals were to be credentialed as delegates, and what weight was to be given each county’s delegation. Eventually, a “one man one vote” system was adopted.[14]

From the very start of the convention on Monday, Jan. 9, 1865, two schools of thought contended as to its ultimate purpose. On the one hand, Conservatives advocated that the business of the convention should simply be to nominate delegates to a constitutional convention. Radicals, led by Andrew Johnson’s close ally, Judge Samuel Milligan, advocated that the convention proceed to offer amendments itself. As Milligan was the chief proponent of the proposal, it is almost certain that its source was Johnson himself, perhaps because it was feared that if there were an election for delegates, Conservatives would have more influence. The Nashville Union summarized Milligan’s argument as follows:

Two ways lay before us; either amend the constitution, as provided by that instrument, or make a direct appeal to the people. This last could be done by the present body. The action of this convention could have no effect, or will until its work had been ratified by the people; and if the people ratified it, all would be right. If this convention has no power to submit a constitution, it has no power to call a constitutional convention. By taking action now, both time and money would be saved. If people don't like the constitution presented, they can vote it down; if they adopt it, as they probably will, we shall speedily have a restoration of law.

After Milligan’s speech, there were a few short remarks by future governor William G. Brownlow, who observed that the East Tennesseans present had had their “time on the cross” and were now prepared to follow the “stars and stripes until the rebels had received their merited doom.” The day’s debate ended with the delegates issuing an invitation to Gov. Johnson to address the delegates.[15]

Debate on the issue of the proper role of the convention and possible changes to the state constitution continued until Johnson addressed the delegates on Thursday night, Jan. 12, 1865. At times, it appeared that the Conservatives would prevail and the convention limit itself to the selection of delegates for a formal constitutional convention. But the governor was intent on having Tennessee to make the minimum changes “necessary to the restoration of civil government.” To the charge of the irregular nature of the proceedings, Johnson was of the view that the times called for the same:

Now you cannot get back in the present chaos and disorder without some irregularity. Some say that if you are irregular the people will not sustain you. Are you not the people, or a portion of them? Is this not a primary meeting of the people? Talk of violating constitutional rules. Why how much law and constitution have you got now? In the absence of both, if you act irregularly, who dare say aught against it? Where is your law now? Lincoln may be charged with irregularity, but if he saves the Government by it who can find fault?

Johnson went on to describe the minimal actions required: the abolition of slavery and the repudiation of the state’s league with the Confederacy.[16]

Abraham Lincoln, 16th president of the United States. — Courtesy of the Library of Congress


Abraham Lincoln, 16th president of the United States. 

— Courtesy of the Library of Congress

The military governor’s influence carried the day. Ultimately, the convention proposed two amendments to the Constitution of 1834 and the adoption of a “schedule,” to be ratified by a vote on Feb. 22, 1865. The amendments addressed only the issue of slavery, providing that “[s]lavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are hereby forever abolished and prohibited throughout the state” and that “[t]he legislature shall make no law recognizing the right of property in man.” The schedule also provided that slavery was abolished, and then reversed, in several articles, the action taken by the state government in May 1861 to ally Tennessee with the Confederacy.[17]

The preamble to the resolution adopted by the convention invoked Article I, Section 1 of the Constitution of 1834, which provided “that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of those ends, they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.” Ironically, this was the same provision invoked by the Tennessee secessionists in declaring Tennessee’s “independence” from the Union, an irony not lost on one delegate, who denounced the convention’s invocation of the same rights as the “rebel legislature.” The language’s proponent, however, noted the difference between the Union convention’s legitimate use of the power and that of Confederate Gov. Isham G. Harris, who “had artfully so prostituted the language as to hoodwink the people then in Tennessee to believe that they had authority to set aside the supreme law of the land!”[18]

Indeed, it was the revocation of the secessionist legislature’s actions in May, 1861 that constituted a large portion of the schedule’s text. Section 2 invalidated the secessionist’s invocation of the right of revolution, as the “Declaration of Independence and Ordinance dissolving the federal relations between the State of Tennessee and the United States of America,” was declared “annulled and abrogated, was in like manner an act of treason and usurpation, unconstitutional, null and void.” Section 3 annulled the state’s military alliance with the Confederacy, which by that point in 1865 was rapidly coming to an end. Sections 4 through 6 were provisions concerning legal rights going forward as affected by the state’s Confederate interlude. Section 4 tolled the statute of limitations after May 6, 1861. Section 5 annulled the acts of the “usurped state government,” although judicial decisions made pursuant to law established before May 6, 1861 were valid. Section 6 invalidated the debt incurred by the state in support of the Confederacy. Section 7 ratified Johnson’s appointments as military governor to state office, and Section 8 set an election for February 22, 1865 for a referendum adopting the new provisions, and if passed, set an election for governor and legislature on March 4, 1865.[19]

To vote in the ratification election, an oath similar to that required to vote in the November election was prescribed, once again not only pledging loyalty to the United States, but adding in the new oath that the affiant was an “enemy of the so-called Confederate States.” Again, the oath-taker certified he did “sincerely rejoice in the triumph of the armies and navies of the United States and in the defeat and overthrow of the armies, navies, and all armed combinations in the interest of the so called Confederate States; that [he would] cordially oppose all armistices or negotiations for peace with rebels in arms.” Participation in the election therefore required an oath that significantly departed from Lincoln’s original amnesty oath of December 1863. As with the elections the previous fall, Lincoln did not intervene to invalidate the additional conditions.[20]

The ninth and final section was unusual, providing “[t]he qualification of voters and the limitation of the elective franchise may be determined by the general assembly, which shall first assemble under the amended constitution.” Effectively, the next legislature’s determination of the right to vote would be locked into the constitution. As with the issue of the constitutional convention, two viewpoints contended. On the one hand were Conservatives who relied upon Lincoln’s general program of amnesty, which granted full pardon and restoration of property rights (except as to slaves) to all that subscribed to an oath that only required abiding by the laws passed by Congress as to slaves and future loyalty to the United States, tempered, as seen above, by Johnson’s stricter oaths which pledged an “ardent desire” for the “suppression” of the “rebellion,” yet which left the door open for the restoration of the franchise to rank and file Confederate soldiers and secessionists. The Constitution of 1834 provided that a voter was eligible if he were a citizen of the United States and had been a citizen of Tennessee for six months prior to the election. The law that was passed, however, provided that for a voter to be eligible, it must have been “publicly known” that he had “entertained unconditional Union sentiments from the outbreak of the rebellion until the present time.” Relative to the former rebels themselves, the Act denied the privilege of the elective franchise, for 15 years, to diverse classes of persons who had committed certain acts in aid or countenance of the rebellion; and disqualified other classes implicated in the rebellion for five years.[21]

Federal Troops, the real reason the 1865 changes were accepted. — Courtesy of the Library of Congress


Federal Troops, the real reason the 1865 changes were accepted.

— Courtesy of the Library of Congress

Thus did the relatively easy amnesty oath prescribed by Abraham Lincoln in December 1863 evolve, first to Johnson’s “Damnesty Oath” in its various iterations, and then to a point where no person who could not prove their loyalty from the start of the war could constitutionally have the franchise in Tennessee. Andrew Johnson’s “irregular” convention provided the underlying basis for the legislature to severely limit the franchise, in contravention to the regularly adopted Constitution of 1834. Yet, the irregularity of the 1865 convention and its resulting severe curtailment of the franchise was never deemed invalid by the ultimate arbiter of state law, the Tennessee Supreme Court. The court agreed with Gov. (soon to be President) Johnson as to the necessity of starting somewhere to regain normalcy. In State v. Staten, 46 Tenn. 233, 271 (1869), Justice James O. Shackleford observed: “A change in the fundamental law, when not made in the form which the law has prescribed, must always be a work of the utmost delicacy. But we were in the midst of a revolution — the organization of the State government was broken up — the laws were suspended; a starting point was necessary.” Andrew Johnson himself might have written the court’s opinion in Ridley v. Sherbrook, 43 Tenn. 569 (1866):

In 1861, a large portion of the people of Tennessee, and other Southern States of the Union, attempted, by an armed rebellion, to throw off their allegiance to the Government of the United States, and to erect within the territory, a separate and independent government; and war followed, which continued until 1865. During its progress, the Governor, and many of the officers of the State, fled, carrying with them the archives and treasures of the State. Most of the Courts of justice were closed. The people of the State were without an organized State Government. A dismal anarchy overspread the land. Roving bands of banditti plundered the citizens with impunity. They were without protection of law, and there was no security for life or property. Fear had seized upon the hearts of the people. The land was drenched in blood, and anarchy reigned supreme.

While yet the smoke of battle lingered around, the loyal people of the State assembled in convention at the Capitol of the State, for the purpose of reorganizing the State Government under the authority of the Government of the United States, and to place the State in her ancient moorings, from which she had been so violently driven by the act of a portion of her people, and to restore the supremacy of the law, bringing order out of chaos, and thus secure to the people peace, safety and happiness. The convention recognized, to the fullest extent, the principle that all power is inherent in the people, and all free governments are founded on that authority, and instituted for their peace, safety and happiness. For the advancement of these ends, they have, at all times, an unalterable and indefeasible right to alter, reform or abolish the government, in such manner as they may think proper. The principles in this country are well recognized political truths, independent of any written constitution or laws.

The convention thus assembled proposed to the people, for their ratification or rejection, certain amendments to the constitution of the State, with a Schedule thereto annexed — all of which were ratified by the people at the ballot-box; whereby, upon the proclamation of Andrew Johnson, then Military Governor of the State, by the authority of the President of the United States, the said Amendment and Schedule were declared to have been adopted by the people of the State; and said Amendment became a part of the Constitution, and the provisions of said Schedule, for all the purposes for which they were designed, and had all the force of constitutional provisions.

Ridley v. Sherbrook, 43 Tenn. 569. 573-75 (1866).

Even though it must be conceded that most of the opinions were written by Unionist judges who would be closely allied with Johnson in 1865 and 1866, a strong streak of practicality is demonstrated in the court's opinions. In Smith v. Isenhour, 43 Tenn 214, 218 (1866), the court recognized the power of the people to alter or change their form of government, “but whether they have changed it or not, by abolishing the old government, and establishing a new one, is a question to be settled by the political power.” In the end, the “amended constitution of 1865, however informally and irregularly adopted, was recognized by the political department of the Government, viz: the President and Congress of the United States.” Andrews v. Page, 50 Tenn. 653, 659-60 (1870).[22]

Abraham Lincoln and Andrew Johnson represented the political power of which the Supreme Court spoke, ultimately in those times that of the bayonets wielded by the victorious Union armies. Because the political power of the time recognized the work of Andrew Johnson and the 1865 delegates as such, the work of the “irregular” convention had the force of law, which in turn restored civil government to Tennessee in 1865.[23]


  1. Paul H. Bergeron, Andrew Johnson’s Civil War and Reconstruction (Knoxville: University of Tennessee Press, 2011), 13-15, 22, 56-57; Robert H. White, Messages of the Governors of Tennessee (Nashville: Tennessee Historical Commission, 1959), 5:373 (hereafter, cited as Messages); Leroy P. Graf, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press, 1986), 7:490 (hereafter cited as PAJ).
  2. Jonathan M. Atkins, “The Failure of Restoration: Wartime Reconstruction in Tennessee, 1862-1865,” in Sister States, Enemy States: The Civil War in Kentucky and Tennessee, Kent H. Dollar, Larry H. Whiteaker and W. Calvin Dickinson, eds. (Lexington: University Press of Kentucky, 2009), 300-303; Bergeron, Andrew Johnson’s Civil War and Reconstruction, 15-22; Peter Maslowski, “From Reconciliation to Reconstruction: Lincoln, Johnson and Tennessee, Part I,” Tennessee Historical Quarterly 42 (Fall, 1983): 291, 298.
  3. Sam D. Elliott, Isham G. Harris of Tennessee: Confederate Governor and United States Senator (Baton Rouge: Louisiana State University Press, 2010), 33; Robert E. Corlew, Tennessee: A Short History, 2nd ed. (Knoxville: University of Tennessee Press, 1981), 319-23.
  4. Atkins, “The Failure of Restoration,” 304-5; Bergeron, Andrew Johnson’s Civil War and Reconstruction, 26-27.
  5. James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 698-99; John George Nicolay and John Hay, eds., Abraham Lincoln: Complete Works, Comprising His Speeches, Letters, State Papers, and Miscellaneous Writings (New York: Century Co., 1894), 2:442-44.
  6. Bergeron, Andrew Johnson’s Civil War and Reconstruction, 48-49; Atkins, “The Failure of Restoration,” 309; PAJ, 6:176, 336, 383, 670.
  7. White, Messages, 5:381; Proclamation Ordering Elections, January 26, 1864,. PAJ 6:595.
  8. Bergeron, Andrew Johnson’s Civil War and Reconstruction, 50-51; Atkins, “The Failure of Restoration,” 309-10.
  9. “Qualification of Voters — Letter from Attorney General Maynard,” Brownlow’s Knoxville Whig and Rebel Ventilator, February 20, 1864.
  10. Bergeron, Andrew Johnson’s Civil War and Reconstruction, 50; Maslowski, “From Reconciliation to Reconstruction, Lincoln, Johnson and Tennessee, Part II,” Tennessee Historical Quarterly, 42 (Winter, 1983): 343, 348 (quote).
  11. Bergeron, Andrew Johnson’s Civil War and Reconstruction, 51; PAJ 6:xliii.
  12. McPherson, Battle Cry of Freedom: The Civil War Era, 713-17, 771; PAJ 7:liv.
  13. Atkins, “The Failure of Restoration, 310-11; Henry Jarvis Raymond and Francis Bicknell Carpenter, The life and public services of Abraham Lincoln, sixteenth president of the United States, together with his state papers, including his speeches, addresses, messages and proclamations and closing scenes connected with his life and death (New York: Derby and Miller, 1865), 598-600; White, Messages, 5:384-86.
  14. White, Messages, 5:386-88; Atkins, “The Failure of Restoration,” 312; Bergeron, Andrew Johnson’s Civil War and Reconstruction, 55; “Union State Convention,” Nashville Union, January 11, 1865.
  15. Wilson D. Miscamble and William G. Miscamble, “Andrew Johnson and the Election of William G. (“Parson”) Brownlow as Governor or Tennessee,” Tennessee Historical Quarterly 37(Fall, 1978): 308, 317; “Union State Convention,” Nashville Union, January 10, 1865 (quote).
  16. “Union State Convention,” Nashville Union, January 11, 1865; “Union State Convention,” Nashville Union, January 12, 1865; “Union State Convention,” Nashville Union, January 13, 1865; White, Messages, 388-39; Atkins, “The Failure of Restoration,” 312-13; “Speech to the Union Convention,” PAJ 7:392-98 (quote on 394).
  17. “Union State Convention,” Nashville Union, January 15, 1865; “Amendments to the Constitution,” Brownlow's Knoxville Whig, and Rebel Ventilator, January 25, 1865.
  18. “Union State Convention,” Nashville Union, January 14, 1865. For a discussion of the secessionist use of the “right of revolution” clause of the state constitution, see Sam D. Elliott, “Tennessee’s Declaration of Independence: Armed Revolt and the Constitutional Right of Revolution,” Tennessee Bar Journal 44 (December 2008): 25. Still in effect in 1865, the Constitution of 1834 provided a mechanism for amendment that required approval by two successive terms of the General Assembly, with the proposed amendment having been initially approved by one term and published six months prior to the election for the next General Assembly, which then had to approve the amendment by a supermajority. As had the secessionists of 1861, the Radicals of 1865 viewed the power to change the constitution under Article I, Section 1 as “well recognized political truths, independent of any written constitution or laws.” Ridley v. Sherbrook, 43 Tenn. 569, 574 (1866).
  19. “Union State Convention,” Nashville Union, January 15, 1865; “Amendments to the Constitution,” Brownlow's Knoxville Whig, and Rebel Ventilator, January 25, 1865.
  20. “Election Notice,” Nashville Daily Union, February 26, 1865.
  21. “Union State Convention,” Nashville Union, January 15, 1865; “Amendments to the Constitution,” Brownlow's Knoxville Whig, and Rebel Ventilator, January 25, 1865; White, Messages, 436. An 1866 revision toughened the law even more, taking the determination of voter qualifications away from local officials and placing it in the hands of “Commissioners of Registration” appointed by the governor. White, Messages, 498-99.
  22. The only member of the Supreme Court to deem the 1865 convention illegal was Justice Peter Turney who wrote in an 1878 dissent: “It is very clear that in these several proceedings neither the convention nor Legislature observed the ordinances of the Constitution.” Nowhere is it recorded that Turney, an ardent secessionist and former Confederate officer, objected to the action of Governor Harris and the legislature in 1861.
  23. Our current constitution was adopted in 1870 by resurgent Conservatives. Reflecting their jaundiced view of the 1865 convention, the 1870 constitution contains Art. XI Section 1, which states: “All laws and ordinances now in force and use in this state, not inconsistent with this Constitution, shall continue in force and use until they shall expire or be altered or repealed by the Legislature; but ordinances contained in any former Constitution or schedule thereto are hereby abrogated.” The practical effect of that provision invalidating the schedule was essentially nil: by that time, the XIII and XIV Amendments to the United States Constitution were in effect, abolishing slavery and invalidating the Confederate debt, which were the most significant aspects of the 1865 schedules. Further, by that time the United States Supreme Court had ruled that secession was unconstitutional in Texas v. White, 74 U.S. 700 (1869). To be fair, the Conservatives of 1870 also recognized practicalities, as Article I, Section 33 of the 1870 Constitution abolished slavery, and the freedmen retained the electoral franchise granted by the Radicals. For more on the 1870 convention, see Sam D. Elliott, “‘In Ten Years from Now All This Must Be Done Again’: The Two ‘Great Issues’ of the Constitutional Convention of 1870,” Tennessee Bar Journal 51 (May 2015):20.

Sam D. Elliott 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, including a new biography of Governor John C. Brown. This article is derived from the author’s 2017 Gerald R. McMurtry Lecture given for The Abraham Lincoln Institute for the Study of Leadership and Public Affairs at the Lincoln Memorial University and its Duncan School of Law.