USA > Tennessee > Davidson County > Nashville > History of Nashville, Tenn. > Part 55
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" The powers of the government shall be divided into three distinct departments: the legislative, executive, and judicial. No person or per- sons belonging to one of these departments shall exercise any of the pow- ers properly belonging to either of the others, except in cases herein di- rected or permitted."
And the Supreme Court was provided for in the Constitution, the num- ber of its judges fixed, its jurisdiction defined, term of service given, and place of holding court. Before this constitutional organization of the Su- preme Court the Legislature was constantly adding to or subtracting from the number of members of which it was to be composed-as stated above, making the number three in 1809, but reducing it to two members in 1811 ; but in 1815 the number was again increased to three, and in 1823 a fourth was added, and the following year a fifth; but shortly thereafter the num- ber was reduced to four again.
In 1831 the Legislature created the office of chief-justice of the Su- preme Court, which office was filled by John Catron; but in 1834 this of- fice was abolished, and Judge Catron was not re-elected to the bench after the adoption of the new Constitution, Nathan Green being select- ed instead by the Legislature. The office of Chief-justice was not again provided for until 1870, when the amended Constitution required the court to select one of its body to fill this place. We have had but four chief-justices in Tennessee: John Catron, from 1831 to 1835; A. O. P. Nicholson, from 1870 to his death in 1878; James W. Deaderick, from the death of Nicholson to 1886; and Peter Turney, the present incum- bent.
In 1827 the Legislature provided for the existence of a separate Chan- cery Court. There were to be two chancellors in the State: Nathan Green, afterward one of the Supreme Court; and William Cooke, the other. In 1831 Chancellor Green was transferred to the supreme bench, and William B. Reese, of Knoxville, was made chancellor. After the
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new Constitution went into effect Judges Reese and Green, with Judge William B. Turley, constituted the new Supreme Court.
The Chancery Court for Davidson County, curiously enough, did not sit in Nashville from 1827 to 1846, but held its sessions in Franklin, Will- iamson County. The Nashville bar seemed to like having to vary the monotony of city practice by going twice a year, for a few weeks, to the pretty village of Franklin, to attend to their suits in chancery.
For many years a large number of the States of the Union had a sep- arate Chancery Court, but gradually this has been changed, and now Tennessee stands almost alone in maintaining a distinct and separate Court of Chancery. Indeed, such a preference has of late been felt for this system over the common law and jury trial for civil business, that the continued existence of Chancery Courts was provided for in the amended Constitution of 1870, since when the jurisdiction of this favorite court has been so enlarged that it now can take cognizance of all civil suits except those sounding purely in damages.
The consequence is that this court has now drawn to itself almost the whole civil litigation of the State; and the Circuit Courts, which former- ly tried every thing by jury, have been in effect turned into Chancery Courts, by dispensing with a jury, unless it is asked for in the pleadings by one of the litigating parties. As this demand is seldom made, it would seem absurd longer to keep up two sets of courts in the State. It would be simpler and less expensive to have but one court for civil business, and that the Chancery.
In criminal matters the jurisdiction, from the first settlement of the State to 1834, in misdemeanors, was in the County Court. Felonies have always been tried by the common law courts, called at first Superior Courts, and after 1809 Circuit Courts; which courts, with the aid of a grand and traverse jury, had exclusive jurisdiction, and continued to have with misdemeanors taken from County Courts since 1834, and given also to the Circuit Court to try and punish. In a few counties in the State a separate Criminal Court has of late been provided for-as in Da- vidson, Knox, Shelby, and Hamilton. In these counties the criminal ju- risdiction has been taken from the Circuit Courts, and conferred exclu- sively upon the Criminal Court. The Criminal Court for Davidson County and Nashville was created in 1842, and Judge W. K. Turn- er was made judge of this court. This position he continued to hold with great ability and firmness until his death.
During the period that this country constituted a part of North Caroli- na-and subsequently Tennessee-before 1829, when the penitentiary code was adopted, our way of punishing criminals consisted in the old
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primitive methods of hanging and branding with a hot iron; and in the lesser grades of offenses resort was had to the whipping-post and the pil- lory. Old people do insist that this way of dealing with crime was very effective. But since 1829 we send to the penitentiary and hang. Hang- ings until recently drew immense crowds of eager spectators-men, women, and children, white and black-to gaze on the horrid and de- moralizing sight of a fellow-being struggling with the death throes conse- quent upon this mode of execution. In the last few years, however, to the credit of the Legislature, executions are now required to be held.pri- vately in the jail or jail yard, concealed by a circumvallating fence.
The Federal Courts, from the beginning of the State in 1796 until now, have been District and Circuit Courts-the first presided over by one judge for the whole State; for, though Tennessee was divided into three districts, we had but one district judge until in 1877, when West Tennessee was given a separate district judge. John McNairy contin- ued district judge for Tennessee from 1797 to 1831; when he was suc- ceeded by Morgan Brown, who held until 1853 with distinguished abil- ity; when, upon his death, West H. Humphreys was appointed, who before was Attorney-general and Reporter of the State, and the author of " Humphreys' Reports." He continued until the Civil War severed the connection of Tennessee with the Union. In 1861 the Confederate Gov- ernment appointed Judge Humphreys Confederate district judge for Ten- nessee. Upon the restoration of Tennessee to Federal relation, Judge Connally F. Trigg was made district judge. Upon his death in 1878 he was succeeded by D. M. Key, the present incumbent. The Federal Circuit Courts were held by the judge of the Supreme Court of the United States, to whose circuit Tennessee was annexed until 1869, when separate Circuit Courts were provided for, and the Union divided into · nine circuits. In 1837 John Catron, who had been chief-justice of the State Court, and a resident of Nashville, was by General Jackson made a judge of the Supreme Court of the United States. From that time until his death in 1865 he continued to hold Circuit Courts in Nashville and in Tennessee, his circuit consisting of the States of Tennessee, Ken- tucky, and Missouri. But after the creation of the nine circuit judges these courts in Nashville have been held first by Judge H. H. Emmons, of Michigan, this circuit being then and now constituted of the States of Michigan, Ohio, Kentucky, and Tennessee. Judge John Baxter suc- ceeded Judge Emmons ; and Baxter, in 1886, was succeeded by Howell E. Jackson, who resides at Nashville. No three more able, industrious, and conscientious judges ever adorned the bench than Emmons, Baxter, and Jackson; and it would be difficult to find five judges who in their
33
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day gave greater satisfaction to bar and people than McNairy, Brown, Humphreys, Trigg, and Key.
During the Civil War the courts were closed; but at the end of the war the Federal circuit of John Catron, who died in 1865, was changed, and Tennessee was placed with Kentucky, Ohio, and Michigan, and Judge Swayne, of Ohio, Justice of the Supreme Court of the United States, was assigned to this circuit. Afterward Emmons was appointed circuit judge under Swayne. Trigg was appointed District Judge for Tennes- see instead of Judge Humphreys, who had been impeached for his adher- ence to the Confederate Government.
John Hugh Smith was appointed State criminal judge. Judge Frier- son continued to hold the office of chancellor until his death, when Horace H. Harrison was appointed chancellor. Judge John M. Lea was appointed Circuit Court judge, and gave great satisfaction to the bar and to the people. Governor Brownlow assumed that all the of- fices in the State were vacant, and proceeded to fill them by appoint- ment. He filled the supreme bench also, and made Mr. Coldwell Attorney-general and Reporter. While all this was irregular, per- haps it was the best and wisest way to get over the difficulty. Most of Governor Brownlow's appointments to judicial places were able and fair men, and upon the whole did better perhaps than would those who might have been selected by a vote of those then permitted to vote; for the Franchise Law as then made excluded all who had been engaged in the Confederate cause; and as this number em- braced in Middle and West Tennessee almost the whole white popu- lation, those entitled to vote by no means fairly represented the intel- ligence and property of the community. The courts finally came to the rescue of the people by holding unconstitutional the Amended Fran- chise Law of extreme exclusion from the right to vote. To Judge Hen- ry Cooper were the people of Tennessee indebted for this deliverance; to the credit of the Supreme Court be it said that this decision of Judge Cooper was sustained. To the Chancery Court Nashville also owed its deliverance from "carpet-bag" rule in its municipal affairs. The "Alden Administration," which was shamefully plundering the people of Nashville, was removed in a most anomalous manner. There was no way of voting them out as things stood, so to the bold and orig- inal idea of Colonel A. S. Colyar was the town indebted for its rescue and salvation by a bill in the Chancery Court, and by the appointment of a receiver to take charge of Nashville, and run it pendente lite! Think of a Chancery Court, by a receiver, running the fire depart- ment of a town, its police department, its water-works, its streets, its
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market-house-in short, the whole municipal machinery! That able and eminent citizen, John M. Bass, formerly President of the Bank of Tennessee, was made receiver of Nashville; and right well did he dis- charge his onerous duties. Judge Charles C. Smith, chancellor, of Clarksville, gave the unprecedented but necessary and righteous order displacing Alden, and appointing Bass receiver. To Colonel Colyar, Judge Smith, and Mr. John M. Bass do the people of Nashville owe an inestimable debt of gratitude. They rescued them from bankruptcy, and from having to resort to the lamp-post and mob violence to free themselves, as they were in imminent danger of being driven to do, in their desperate straits, as the only apparent remedy. The extreme vio- lence of party passions, as shown toward an able and conscientious judge in the case of the impeachment of Judge Frazier, has been detailed in another chapter of this work; and it is there told how, to reward this badly treated judge, who was impeached for doing as a judge that for which he ought to have been impeached had he refused to do, the Con- stitution was so amended in 1870 that the Legislature was empowered to remove the disability of holding office to one so impeached, as Judge Frazier had been; and then the people of Davidson County had the mag- nanimity to elect him again to the place he had so unrighteously been turned out of by his political friends for daring simply to do his official duty. It has not been stated in this chapter that the judiciary, which from 1796 to 1854 had been selected by the Legislature, by an amend- ment of the Constitution passed by the sanction of a popular vote upon the submission of this change for approval, having carried by a small ma- jority, all the judges in the State were turned out of office, and for the first time in our history our judges were selected as have always been the political officers of the State. Conservative people deprecated the change; but it must be confessed that it has been found in practice not · to be so dangerous as was apprehended. Certainly in regard to the su- preme judiciary of the State, where the best men are generally put out by party conventions of the whole State, the mode of election by a popu- lar vote has seemed to be equal if not superior to that of selecting by the Legislature; and in the more local elections of Chancery, Circuit, and Criminal judges, the men selected have been as fair, able, and efficient as those formerly chosen by the Legislature.
Having now pretty fully discussed our judicial system, it remains to speak briefly of a few of the very able men who have as lawyers and judges adorned the bench and bar of Nashville in times past. The bar of Nashville has always been one of the best in the nation. At the be- ginning of this century it was adorned by such men as Judge John Over-
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ton, Robert Whyte, George W. Campbell. Judge Campbell removed to Nashville from Knoxville in 1810. He was successively judge of the Su- preme Court of the State, member of Congress, Secretary of the Treas- ury of the United States, and Minister to Russia. Judge Overton came to Nashville in 1798, and, after meeting with great success at the bar (particularly in suits on land titles), he was put on the Supreme Court bench as the successor of Andrew Jackson. To Judge Overton the pro- fession is indebted for collecting and publishing the first volume of " Re- ports of the Decisions of the Supreme Court of Tennessee." Jenkin Whitesides followed Judge Overton as the great land lawyer of Nashville. Judge Felix Grundy resigned the position of chief-justice of Kentucky, and in 1807 removed to Nashville, the bar of which he continued to adorn until his death in 1840. He was confessedly the greatest criminal lawyer of the West. Soon after his removal to Tennessee he became a leader in Congress with Clay, Calhoun, and Webster, and was in Mr. Van Bu- ren's cabinet as Attorney-general of the United States.
Judge John Haywood, of the Supreme Court of North Carolina, also removed to Nashville in 1807, and, after a few years of brilliant service at the bar, was elevated to the Supreme Court bench of the State. His reports make him too well known to require at our hands any further mention of his great ability and learning.
Thomas H. Benton and Sam Houston also figured at the bar of Nash- ville; but as both went into politics, and are better known in that con- nection, it is only necessary to make this brief allusion to their connec- tion with our bar.
For the next fifty years the following group remained at the head of the profession in Nashville: The Fosters-Robert C. and Ephraim H .- Francis B. Fogg, Return J. Meigs, John Catron, and Thomas Washing- ton. The Fosters and Mr. Washington were great collecting and com- mercial lawyers. Francis B. Fogg became a citizen of Tennessee in 1818, and died in Nashville in 1880. At his death the bar of Nashville, in their resolutions of respect for Mr. Fogg, say: " Upon his settlement in Tennessee he commenced the practice of the law, which he pursued with unremitting diligence for half a century, until age and disease dis- qualified him for labor. It is no disparagement to his many distinguished contemporaries in the profession during that long and eventful period to say that he had few rivals and no superiors. His success was emi- nent. He commanded the confidence of the community in a remark- able degree. To a mind naturally strong and vigorous he united rare industry, and, with original scholarship of a high order, he was able to amass stores of learning on all subjects. He possessed a wonderful
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memory, by which he could recall cases and incidents that most others had forgotten. He was familiar not only with the history of the law, but with the history of this and other countries. Mr. Fogg was not ambi- tious for office, and never sought promotion; but in 1834, by the volun- tary action of the community, he was elected a member of the Constitu- tional Convention, and took a prominent part in its deliberations. In 1851-52 he was elected to the State Senate from Davidson County, and aided efficiently in inaugurating the system of internal improvements which has done so much for the State. Among the statutes which adorn our code and measure and regulate the rights of person and property, it is impossible now to tell of how many he was the author; for it was the habit of Legislatures to call upon him on all occasions for aid in the preparation of bills."
Mr. Fogg told the writer of this chapter a curious incident in the life of himself and James K. Polk. When Mr. Fogg, as a young lawyer, first came to Nashville, he and Mr. Polk (then also a young lawyer) oc- cupied an office in connection with Felix Grundy. Mr. Grundy seemed to take a great interest in him (Mr. Fogg), and remarked to him one day in the office, in the presence of Mr. Polk, that he thought it would be a good thing for him (Mr. Fogg) to go up to Murfreesboro, where the Leg- islature was about to meet, and offer himself for Clerk of the Senate. Mr. Grundy said it would extend his (Mr. Fogg's) acquaintance over the State by bringing him in contact with the leading men from all por- tions thereof, who from time to time would be in Murfreesboro during the session of the Legislature. Mr. Grundy said that he thought he could have influence enough to have Mr. Fogg elected Clerk of the Sen- ate if he wished the place. Mr. Fogg thanked Mr. Grundy for his kind suggestion, but said that he preferred to remain in the office studying law, even if he got no cases. After Mr. Grundy went out of the office, young Polk said: "Well, Fogg, as you refused Mr. Grundy's offer, I would be glad if you would tell him that I would like to have the place myself, if he will assist me to get it." Mr. Fogg told Mr. Grundy what Mr. Polk had said, and the result was that Mr. Polk went to Murfrees- boro, and was elected Clerk of the Senate. At the next session of the Legislature Mr. Polk was himself a member, and soon after was sent to Congress. While at Murfreesboro Mr. Polk met with the beautiful Miss Childress, whom he married, and who afterward so gracefully adorned the White House during the presidency of her husband, and who for for- ty years past has added such dignity and charm to the society of Nash- ville. That casual conversation threw Mr. Polk into the political arena, from which he never departed until his death twenty-five years or more
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afterward. Upon so slight things do our fates hinge-Clerk of the Sen- ate, member of the Legislature, member of Congress, Speaker of the House, Governor of Tennessee, President of the United States: the annexation of Texas, the Mexican war, the acquisition of California, the settlement of the Oregon boundary. Mr. Fogg stuck to his books, and soon was recognized as the most learned lawyer west of the Cumberland Mountains. Each young man found and continued in his chosen pur- suit. But how fateful that short morning's talk between them !
Mr. Return J. Meigs was for fifty years Mr. Fogg's only rival in legal knowledge and general scholarship. They were always fast friends, and Mr. Meigs still survives, having removed to Washington City during the Civil War. Since his residence in Washington Mr. Meigs has not prac- ticed his profession, but has held the office of Clerk of the Supreme Court of the District of Columbia. To Mr. Meigs the profession is in- debted for the best digest of the decisions of our Supreme Court that we have ever had. He also, in conjunction with Judge William F. Coop- er, compiled the digest of our statutory law which we call the code of Ten- nessee.
John Catron was first Attorney-general for the Circuit Court of the State, then a member of the Supreme Court, then chief-justice of the State, and then Associate Justice of the United States Supreme Court. For many years before his death the writer of this chapter looked upon Judge Catron as the strongest man on the supreme bench of the Union. He lived and died in Nashville. The next contemporary group of law- yers of Nashville were Thomas H. Fletcher, the eloquent criminal law- yer, Henry Crabb, William L. Brown, John Bell, and John Marshall, of Franklin (for though Mr. Marshall lived in the adjoining village, there Nashville's Chancery Court was held, and he constantly practiced in the other Nashville courts). It were hard to say which was the abler lawyer of the two cousins, John Bell or John Marshall. Mr. Bell, however, gave most of his time to politics, while Mr. Marshall devoted himself al- most wholly to his profession.
Then came George Yerger, David Craighead, Judge James Rucks, William E. Anderson; and then Edwin H. Ewing, and his brother, An- drew-one a Whig and the other a Democrat; the one going to Con- gress, and the other succeeding him. Two abler lawyers the bar of Nashville and the State of Tennessee have never had. Judge Edwin H. Ewing still survives, an example to the younger generation of lawyers of the profound and extensive knowledge of the law, graced by classical and belles-lettres scholarship, which in time past so adorned the bar of Nashville.
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But space fails us to allude to Russell Houston, Neill S. Brown, Judge Guild, Judge Nathaniel Baxter, John Trimble, John Reid, Chief-justice A. O. P. Nicholson, and Judge William F. Cooper, worthy successors of those of whom we have above spoken.
Judge William F. Cooper, though he has retired from the active pur- suit of his profession, still resides in Nashville, the friend and admiration of us all. Lawyer, chancellor, supreme judge, author, scholar, gentle- man, he may justly be called the Joseph Story of the West.
This brings us to those who are to-day in our courts so worthily filling the places of the illustrious men who have preceded them. Suffice it to say that no abler bar can be found anywhere in all this broad land of ours than that of Nashville. Speeches are constantly made in our court- house which, if made in New York, and reported as fully as the newspa- pers of that city do those of its local bar in all celebrated cases, would be read with admiration by the people of our whole country, and confer upon those delivering them deserved national reputation.
CHAPTER XVIII.
MEDICAL HISTORY.
Early Physicians-Felix Robertson-James Roane-James Overton-Attention to Vaccina- tion-Small-pox in 1832 and 1833-Attempts to Establish a Hospital-John Newnan- Charles K. Winston-Thomas R. Jennings-A. H. Buchanan-R. K. C. Martin-John Shelby-William P. Jones-W. L. Nichol -- T. A. Atchison-C. S. Briggs-George S. Blackie-W. K. Bowling-Paul Fitzsimmons Eve-John Berrien Lindsley-James D. Plunket-G. C. Savage-John Hill Callender-Other Physicians-The Medical Society of the State of Tennessee-The Nashville Academy of Medicine and Surgery-The Nashville Gynecological Society-Homeopathic Physicians-Philip Harsch-Henry Sheffield-R. M. Lytle-J. P. Dake-Herman Falk-Thomas E. Enloe-Clara C. Plimpton-J. H. Enloe -D. R. Overman-James T. Dicks-Homeopathic Societies-Meeting of the American Medical Association.
A LL the writers on the early history of the medical profession in Nash- ville make mention of the fact that the first physician in the place was Dr. John Sappington, "who compounded pills, covering them with mystery and a coat of sugar," calling them "Sappington's Pills," and state that these pills were regarded as a sort of cure-all and used exten- sively for many years.
Felix Robertson, M.D., who was the sixth child of General James Robertson, and who was born in Nashville January 11, 1781, received the degree of Doctor of Medicine in 1806 from the University of Penn- sylvania. He immediately returned to Nashville and entered upon the practice of medicine, secured a lucrative practice and retained it for forty years. His principal practice was in connection with the diseases of children. However, he did not confine his attention exclusively to the practice of medicine, being a public-spirited citizen, serving his fellow- citizens in various public stations. His death occurred July 8, 1865. While Dr. Robertson was absent in Philadelphia engaged in the further prosecution of his medical studies, Dr. J. R. Bedford took charge of his practice here in Nashville. Dr. F. May and Dr. R. B. Sappington were also engaged here in the practice of medicine at that time (1807).
At this early day the question of the value of vaccination began to at- tract the attention of the physicians of Nashville, and it will not be unin- teresting to note the facts upon which they based their estimate of its value as a preventive of that dread disease, small-pox. The Parliament of Great Britain had just granted to Dr. Jenner £200,000 as a further reward for his services to mankind, and a London paper published the following facts as the effects of vaccination in various cities, which were
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