The decade from 1861 to 1870 was a period of great upheaval in the state of Tennessee. The Constitution of 1834 strongly linked Tennessee to the Union and required a drawn-out process to effect any amendments to that document.
In 1861, however, after the attack on Fort Sumter made Tennesseans take sides, the majority secessionists bypassed the constitutional process and invoked Article I, Section 1, which gave the people of Tennessee “an unalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper,” i.e., a “right of revolution.” In 1865, asserting the same rights, a Unionist convention in Nashville resolved itself into a constitutional convention, empowering the radical Unionist legislature to not only enfranchise the freed slaves but also to disenfranchise the former Confederates.
In 1869, the “Conservatives” (moderate Unionists and moderate ex-Confederates) regained control of the legislature and deemed that a new constitutional convention was needed to resolve the issue of the franchise and other issues arising out of the Civil War. In November, the General Assembly authorized a referendum and provided for the election of delegates from each county and from districts of several counties.
The electorate approved the convention, and two delegates were chosen from this area. Of the two, the more well-known today was David M. Key, a native of Greeneville who had practiced law in Chattanooga since 1853. Key was a former Confederate officer, and friend of ex-President Andrew Johnson. Less known was Richard Henderson, who came to Chattanooga to practice law in 1838 and was the first recorder when the city government was organized. A Unionist, Henderson became the mayor of Chattanooga in 1865 when the Union Army turned the city back over to civilian control. Together, as a former Confederate and a Union man, they arbitrated several damage suits that arose out of the late civil strife. In 1870, Key was age 46, Henderson 53.
The convention began in January 1870. Most of the delegates recognized that their main task was to address the franchise in a way that recognized the results of the Civil War but restored the vote to ex-Confederates. Thus far, Tennessee had avoided the military reconstruction suffered by the other former Confederate states. As most of the delegates were Conservatives, they used the Constitution of 1834 as a departure point.
Re-enfranchising the former Confederates was taken for granted. But incredibly, even five years after Appomattox, whether the recently freed African Americans should retain the vote given them by the radical state government was hotly debated. The moderates of the convention were motivated by two primary considerations: the first being the practical thought that a rejection of black franchise would likely provoke the federal government to impose military rule on Tennessee, and the second, fundamental fairness, as many of the ex-Confederate whites had recently been unable to vote themselves.
Sanity prevailed, and by a 2-1 majority, the franchise was extended to all males over 21 years of age, both Key and Henderson voting for the same. Key was a member of the Committee on the Elective Franchise, supporting former Sen. A.O.P. Nicholson and former Gov. Neil S. Brown in shepherding universal male suffrage to approval. Henderson was on the Committee on the Legislative Department, offering an amendment to limit interest rates on guaranty contracts to 6%. His amendment was defeated.
Ultimately, the convention finished its work in late February, and about a month later, the new constitution was approved by the all-male electorate by a vote of 98,128 to 33,972. On May 5, 1870, the results of the referendum were certified.
Key famously went on to serve as state court chancellor, U.S. senator, postmaster general and eventually as U.S. district judge. He died in 1900. Henderson was known by family and friends as “old Uncle Dick,” who displayed a “genial smile, gentle manners, words of cheer, and assurance of the protection of law.” Henderson practiced law in Chattanooga until his death in 1878, then the oldest member of the local bar.
Although it was thought that another convention would be necessary within 10 years, the 1870 constitution was unamended until 1953, and is still our fundamental law, conferring on modern Tennesseans an impressive array of fundamental personal rights and a stable and historically highly functioning state government.
Sam D. Elliott, an attorney with Gearhiser, Peters, Elliott and Cannon, is the author of an award-winning biography of John C. Brown, who was president of the 1870 convention. For more information, visit Chattahistoricalassoc.org.