‘In 10 Years from Now All This Must Be Done Again’

In November 2014, the electorate finally settled the nagging issue of the constitutionality of the method by which Tennessee’s appellate judges are selected. With the passing of that modern milestone, it is worthwhile to revisit the reasoning, or the surprising lack thereof, behind the original constitutional provision as it was considered before its adoption in 1870, and to review the discussions relating to Tennessee’s court system in general. The men who wrote the Constitution of 1870 were convinced that their work was a temporary expedient that would have to be revisited in more settled times. A. O. P. Nicholson of Columbia, who was a former United States senator and would soon be the first chief justice of the Tennessee Supreme Court under the new constitution, reflected this sentiment when he said, “Let us be careful; let us do no more than is absolutely necessary. In 10 years from now all this must be done again.” Ironically, the language relating to the election of the Supreme Court remained unchanged for 144 years.[1]

A Decade of Constitutional Irregularity

The Constitutional Convention of 1870 was called as a result of nearly a decade of disruption of and irregularity in the interpretation and application of the Constitution of 1834. In May and June of 1861, under the leadership of Isham G. Harris, Tennessee’s secessionists ignored constitutional niceties in ramming through the dissolution of the state’s ties with the Union. Almost four years of the Civil War followed. At the beginning of 1865, a Unionist convention in Nashville resolved itself, with military Gov. Andrew Johnson’s urging, into a constitutional convention. This ersatz convention amended the Constitution of 1834 to reflect the results of the war. In doing so, Johnson brushed aside issues of constitutional legality as readily as had his long time enemy, Harris. One of those amendments of 1865 allowed the next legislature to establish voter qualifications. The state government at that time was in the control of the Radical Party, the uncompromising Unionists led during most of the state’s reconstruction by Governor William G. Brownlow. The Radical-controlled legislature promptly disenfranchised the former Rebels, and enfranchised the former slaves. The peculiar approach taken at that time meant Radical legislature’s definition of who was entitled to vote was deemed by most legal scholars of the day an actual part of the Constitution.

The Radicals were opposed by the Conservatives, a coalition of conservative Unionists and former Confederates. In 1869, thanks to an intra-party dispute among the Radicals, the Conservatives regained power in the General Assembly. But the election that put them in power might very well be seen as tainted, as many were arguably disenfranchised by the previous definition of voter qualifications. The only way to relatively quickly address this issue and restore the right of franchise to the former Rebels was to amend the Constitution of 1834 and with it the dubiously adopted 1865 amendments. On Nov. 15, 1869, a law was passed providing for an election on whether a constitutional convention should be called, which was authorized by the voters on Dec. 18, 1869.[2]

The Delegates and Their Task

The convention was called to order on Jan. 10, 1870. As might be expected, the majority of the delegates were lawyers. In the words of Tennessee constitutional historian and lawyer Joshua Caldwell, “[i]t was, probably, the most intellectual body of men that ever assembled in Tennessee for any purpose.” Among the great lawyers of the time participating were Nicholson; former Governor Neill S. Brown; John Netherland, an upper East Tennessee conservative who had run for governor against Harris in 1859; John Baxter of Knoxville; William H. Stephens and Joseph Heiskell of Shelby County; and rising younger men, such as Confederate veterans John C. Brown and James D. Porter, who would be the first two governors under the new constitution, and David M. Key of Chattanooga, who would serve as United States senator, postmaster general, and as a state and federal judge.

Netherland stated the task of the convention was to consider two great issues, “to enfranchise the people and reorganize the judiciary.” As most of the delegates were Conservatives, they would use the Constitution of 1834 as a departure point.[3]

Accepting the Result of the Civil War

While the convention was called to correct irregularity, there was an argument that it, too, was illegally approved. This is because all males over 21, including those disenfranchised by the Radicals, were allowed to vote on the issue of the convention and the delegates selected. Another consideration was that some of the men elected to the Convention were arguably ineligible to serve under Section 3 of the 14th Amendment, which disqualified certain former Rebels from state office. Relying on these factors, recently defeated Radical gubernatorial candidate William B. Stokes wrote a friend that he “would treat the whole thing as revolutionary and in violation of the laws of the State and the reconstruction acts of Congress.” Threats like these cast the cloud of federal military intervention over the proceedings. Unlike other former Confederate states, Tennessee had avoided, to that point, a Reconstruction military government. Convention President John C. Brown reminded his fellow delegates: “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.”[4]

Of Netherland’s “great issues,” the one issue that was really being watched from Washington should be touched upon first. The issue of the franchise was hotly debated — not on the issue of restoring the franchise to the former Confederates — that was a given. The issue was whether or not the recently freed African-Americans should retain the vote given them by the Radical state government. The moderates of the convention were convinced that a rejection of black franchise would likely provoke the Radical-led Congress in Washington to impose a military government on Tennessee. While not by any means advocates of equality between the races, the moderates were also motivated, at least in a secondary sense, by some concept of fairness. After all, many of the ex-Confederate whites had recently been unable to vote themselves. Accordingly, President Brown appointed the pragmatic Nicholson and his brother ex-Gov. Neill Brown, who had been a reluctant Confederate, to lead the Committee on Elections and Right of Suffrage. The majority of the committee recommended franchise for the blacks. The four hot-blooded rebels on the committee were led by James Fentress of Bolivar, an “ultra, radical and rampant” Confederate veteran. They issued a minority report that stated the blacks were “the lowest order of human beings” and not entitled to the vote, and that the “Convention should not be moved by fear of arbitrary power” in disenfranchising them. The Convention voted the minority report down by an over 2-1 vote. Tennessee’s black citizens were to keep the franchise, 127 years before the state adopted the Fifteenth Amendment.[5]

Electing the Supreme Court

Reorganizing the judiciary, Netherland’s second great issue, was a different prospect. Not only were there propositions to tinker with the court system as it then existed, there was the issue of the Radical judges who remained in office. While the former is of greater interest to current readers, the latter was of much more significance to the men of the convention. It was deemed by some of the delegates to be as rife with the prospect of federal “interference” as the issue of the enfranchisement of the blacks.

The Constitution of 1834 provided for three Supreme Court judges elected for a term of 12 years by a joint vote of both houses of the General Assembly. An amendment adopted in 1853 provided that the judges would be popularly elected for a term of eight years. During the 1870 debates, the Judiciary Committee of the Convention reported out a provision that the court would consist of five judges who would be nominated by the governor. The governor’s nominees would be confirmed by a two-thirds vote of the Senate, and serve for a term of 12 years. One alternate proposal was for a three-judge Court of Errors and Appeals, which would hear appeals from three Supreme Courts, each from one grand division. The proposal provided that one judge from each Supreme Court would be that grand division’s representative on the Court of Errors and Appeals. The debate began on Feb. 1, with former Gov. Neill Brown as the primary proponent of appointment and confirmation, while lawyer John W. Burton of Murfreesboro advocated direct election. Burton thought appointment placed too much power into the hands of the governor and legislature. Attorney W. B. Staley of Kingston, a member of the Judiciary Committee, lodged a minority report in the record to the effect that not only should the Supreme Court judges be appointed, but lower court judges as well. In his view, it was provident to insulate judges from popular pressure. Staley cited the example of the appointment of judges under the United States Constitution, to be emulated as a system approved by the Founding Fathers.[6]

The matter was taken up again on Feb. 2, and there were discussions about the reduction of a large backlog of cases left by the postwar Supreme Court. One proposal was made for extra judges who would sit for a limited period of time in each grand division to reduce the docket. Another was the addition of three extra judges per grand division who would work off the backlog of cases and submit their findings to the existing Supreme Court. Yet another proposal was to reduce the committee’s recommendation to three judges. Its proponent, identified in the newspaper as a Mr. Wharton (there was no such delegate) felt that three judges could do the same work as five, for less expense. An amendment was adopted prescribing that the court should meet at Nashville, Knoxville and Jackson. Thereafter, in “accordance with the expressed wish of the Convention,” Heiskell offered an amendment with the language that was recently replaced requiring direct election of the Supreme Court, which was adopted.[7]

Electing Court Clerks

Another issue considered by the convention was the selection or election of clerks. The Constitution of 1834 provided for the system that we know today — the clerks of the inferior courts were elected for a term of four years, the Supreme Court clerk and the several clerk and masters were appointed by their respective judges for a period of six years.

Proposals were made and discussed on Feb. 2 and 3 to provide for popular election of Supreme Court clerks and clerk and masters. Stephens of Memphis thought elections would result in “better men,” who “would be more respectful, industrious and prompt in their business. Under the present system a clerkship was a life estate.” But those who opposed the change thought that the system then in place worked, and were reluctant “to make any innovations except those which seemed to be demanded.” The latter prevailed, and the 1834 system remains the current system.[8]

The Attorney General Selected by the Supreme Court

Under the Constitution of 1834, the state attorney general was elected for a period of six years, and there was no “Reporter” provided for. The Judiciary Committee of the 1870 convention recommended appointment of “an Attorney General and Reporter” by the Supreme Court, for a term of 12 years. Given the controversy in our time over this provision, there was remarkably little debate. A quick amendment was offered and adopted reducing the term from 12 to eight years. Another amendment was offered by Gallatin lawyer James Turner providing for popular election. Stephens and former governor Brown spoke against the amendment, Stephens offering that he did not think the people “could judge properly the specifications for a good Reporter.” Columbia lawyer Vance Thompson agreed, considering “nothing [was] more important than the law reports of a State.” Without further ado, the amendment requiring popular election was laid on the table and the committee’s recommendation adopted.[9]

Throwing Out the Radical Judges

Of crucial importance to the delegates was the “Schedule” providing for the implementation of the new Constitution. The Judiciary Committee first introduced the Schedule on Jan. 22, 1870. As introduced, it provided that all elected civil officers of the state except for the judges and attorneys general, would serve until the end of their current elected term. Lower court judges would have their offices vacated immediately upon ratification of the Constitution, and Supreme Court justices would hold office until Nov. 1, 1871. Further, with the backlog of cases in mind, once the Constitution was ratified, the governor would appoint, and the Senate confirm, four additional Supreme Court justices who would serve through that same date.[10]

The Convention began discussion on the Schedule on Feb. 4. While only minor amendments were offered, there was much discussion on the concept of the Schedule. Future judge David Key of Chattanooga was opposed to “unseemly haste” in turning men out of office, and thought a short term after ratification was called for. In response, John Baxter of Knoxville cited the example of “a fellow who presided on the bench and pretended to dispense justice.” The need to get rid of these men was not a party issue, “but to do justice to the people of the State.”

William H. Stephens then embarked on a lengthy oration that the current members of the bench were elected “during a revolutionary period” or its immediate aftermath “when it was deemed necessary by those in power to confine the elective franchise to a small portion of the people, and that portion by no means the most intelligent.” In his view they did the best they could and should not be personally attacked, but they needed to go. Lawyer John Thompson of Nashville justified leaving the governor and members of the General Assembly in place while replacing the judges by claiming “we cannot confide the Constitution itself to custodians who are not elected under it, but under a system wholly in antagonism to its spirit.”

The president of the Convention, John C. Brown, a former Confederate major general, ironically led the opposition to the removal of the Radical judges. Brown feared it would set a precedent for partisanship in the future, when the convention they all expected would have to be called in the relatively near future might do the very same thing. The proposed action set a precedent that offices were being vacated “without any reason save that these men were elected under a different party.” Distinguishing what occurred in connection with the Constitution of 1834, where the removal of office holders was more gradual; Brown argued the action was unprecedented. In the view of Brown and a minority of others, the issue raised “questions of expediency and policy,” that is, the removal of Radical judges might be seen as a means for federal intervention.[11]

The Schedule was adopted in amended form. As such, it allowed the then-current governor, D. W. C. Senter, and the members of the General Assembly to finish their terms and set a limit on the terms of the secretary of state, comptroller and treasurer. “All other officers shall vacate their places thirty days after the day fixed for the election of their successors under this Constitution.” The Radical judges were to be turned out. Fortunately for the Tennessee Conservatives, the authorities in Washington did not react, and new judges were elected in August 1870.

With the political issue effectively dealt with, the practical issue of the backlog of cases was addressed. The new Supreme Court would consist of six justices, two from each grand division, until the first vacancy after Jan. 1, 1873, at which time the court would revert to five members. During the interval of six justices, the court could divide into two sections of three to hear and decide cases, which it was hoped would expedite clearing the backlog.[12]

The Constitution of 1870 Is Ratified

The delegates completed their work on Feb. 23, 1870, after 39 days. The delegates signed the document, with the exception of George W. Jones, who departed early in protest over a poll tax provision, and seven Radicals. The paper was then ceremoniously carried to the Capitol, where both houses were then in session. The official copy of the proposed constitution was transmitted to the governor, and a number of flowery speeches were made. The work of the convention was done. The state’s new organic law was ratified by a vote of 98,128 to 33,972 on March 26, 1870. Contrary to A. O. P. Nicholson’s prediction, the Constitution of 1870 remained unchanged until 1953.

The final version of the Constitution of 1870 contained few substantial departures from the Constitution of 1834. Instead of making a bold and updated departure from Tennessee’s organic law, the convention was ultimately called to cement Conservative control of the machinery of state government, which morphed into the Democratic Party’s control of the state government which lasted until well into the second half of the 20th century. As historian Caldwell observed, the convention “was really a political expedient” for that purpose, as well as giving the former Rebels “an opportunity to show that they accepted the results of the war.”[13]

Notes

1. Joshua W. Caldwell, Studies in the Constitutional History of Tennessee, 2nd ed. (Cincinatti: Robert Clarke, 1907), 300.
2. 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), 3-4 (hereafter, Convention Journal); Sam D. Elliott, “Tennessee’s Declaration of Independence: Armed Revolt and the Constitutional Right of Revolution,” Tennessee Bar Journal 44 (December 2008): 25-29; Paul H. Bergeron, Andrew Johnson’s Civil War and Reconstruction (Knoxville: University of Tennessee Press, 2011), 55-56; Robert E. Corlew, Tennessee: A Short History, (Knoxville: University of Tennessee Press, 1981), 322-23; Robert H. White, Messages of the Governors of Tennessee, 5:389-90, 6:52; Ridley v. Sherbrook, 43 Tenn. (3 Cold.) 569, 576 (1866); John C. Burch to A. Johnson, March 9, 1870, 16 Papers of Andrew Johnson 175.
3. Caldwell, Studies in the Constitutional History of Tennessee, 298-99; “The Convention,” Nashville Union and American, Feb. 6, 1870.
4. “The Efforts to ‘Legalize’ Tennessee,” Fayetteville Observer, Jan. 6, 1870; “Who May Be Members of a State Convention?” Memphis Appeal, Oct. 3, 1869 “How Tennessee Is Misrepresented,” Nashville Union and American, Jan. 5, 1870; “Invoking Federal Interference,” ibid., Jan. 8, 1870; Hart, “Redeemers, Bourbons and Populists,” 2-3; Convention Journal, 8; “The Convention,” Nashville Union and American, Jan. 11, 1870; see also Sam D. Elliott, “When the United States Attorney Sued to Remove Half the Tennessee Supreme Court: The Quo Warranto Cases of 1870,” Tennessee Bar Journal 49 (August 2013): 20.
5. Convention Journal, 42, 92, 97-98; “Constitutional Convention,” Memphis Daily Appeal, Jan. 15, 1870; Thomas B. Alexander, Political Reconstruction in Tennessee (Nashville: Vanderbilt University Press, 1950), 230-33; “A set of twelve young men,” Memphis Avalanche, Dec. 12, 1869. Tennessee ratified the 15th Amendment in April, 1997.
6. 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), 65-66, 87-88; Convention Journal, 123-24, 127-28; 163-64; “The Convention,” Nashville Union and American, Feb. 2, 1870.
7. “The Convention,” Nashville Union and American, Feb. 3, 1870.
8. Caldwell, Studies in the Constitutional History of Tennessee, 386; “The Convention,” Nashville Union and American, Feb. 5, 1870.
9. Caldwell, Studies in the Constitutional History of Tennessee, 383-84; “The Convention,” Nashville Union and American, Feb. 4, 1870.
10. Convention Journal, 126. “The Convention,” Nashville Union and American, Feb. 5, 1870.
11. “The Convention,” Nashville Union and American, Feb. 5 and 6, 1870.
12. Convention Journal, 438-39.
13. Convention Journal, 405-408; “The Convention,” Nashville Union and American, Feb. 24, 1870; Wallace McClure, “The Development of the Tennessee Constitution,” Tennessee Historical Magazine, 1 (December 1915): 292, 310; William H. Combs, “An Unamended State Constitution: The Tennessee Constitution of 1870,” The American Political Science Review, 32 (June 1938): 514, 515; Caldwell, Studies in the Constitutional History of Tennessee, 296.

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.