The Life of Alfred Pope Osborn Nicholson
Introduction
Alfred Osborne Pope Nicholson (frequently known as “A.O.P. Nicholson”) had a distinguished and varied political career, serving in the state legislature, United States Senate, and on the Tennessee Supreme Court. His professional career included many years of distinguished private legal practice, publication of a highly regarded compilation of the Tennessee statutes, authoring several books, and being the official printer for the state and U.S. Congress. He was a friend and confidante to three U.S. Presidents and numerous influential Tennesseans, and a comprehensive review of his life would more than fill a book. This paper, however, will focus on his service as Chief Justice of the Tennessee Supreme Court, and will examine events in his life that may have influenced his judicial philosophy and opinions.
Early Life
Alfred Osborne Pope Nicholson was born on August 13, 1808, in the Carter's Creek area northwest of present-day Spring Hill, Tennessee. The area was rural and sparsely populated, consisting mainly of large farms, and it remains much the same today. Like many first-generation Tennesseans, Nicholson's parents had migrated from North Carolina in search of cheap land and opportunity in Middle Tennessee, which was made possible after Cherokee claims to the area were resolved via treaty in 1806.
Osborne Pope Nicholson and Sackey Clark Hunter first came to Williamson County sometime in early 1808. His father had worked as a contractor and surveyor in Raleigh, where he owned a home that he sold in 1800 before moving west. Such work must have been plentiful in the rapidly growing region, and the family prospered in Tennessee. His mother was born on May 14, 1783, a third-generation native of North Carolina. A brother and sister preceded Alfred: Maria, born in 1802, and Calvin in 1805. The Nicholsons lived on a tract in northern Maury County called Sand Spring Place, and Osborne later settled his parents on an adjacent parcel.
Maury County had just been carved out of Williamson County on November 24, 1807, and Columbia was as the nascent county seat the same month that Nicholson was born. The town's location near the then-western-frontier of the southwest made Columbia's new clerk's office a natural place to file property deeds, and because the municipality was largely unscathed by the Civil War, Maury County's property records go back to the first day of its existence.
In 1809, Nicholson's father and a partner were hired for $6,990 to build Columbia's first courthouse on the town square. After its completion the following year, the pair sued the town for breach of contract in 1811. Although a jury eventually found for them, in 1815, the case was not finally resolved until a cash settlement in 1823. Young Nicholson was undoubtedly aware of the lawsuit as a child, and it may have had some influence upon his later decision to pursue a legal career.
Nicholson's father died in late 1812 from unknown causes, leaving the Sand Spring Place property to Sackey and the grandparents' tract to Alfred's brother Calvin, with Maria receiving the lots in Columbia. His father's will demonstrates the family's commitment to the education, dictating that “my children should receive a good English Education unless my Estate can afford it and my Executors see proper to give my two sons a Classical Education.” A voracious reader, Alfred showed early academic promise with tutors; it was reported that he was the local schoolmaster's favorite, who would have him recite whenever the school board would visit. There is no indication of Maria's level of education, but by 1821, she had married James Simpson Walker, who became A.O.P.'s guardian. Alfred moved in with the couple so that he could attend Old Brick (later renamed Woodward) Academy in Columbia, paying $5 each month for room and board. After Alfred exhausted the school of all that it could offer him academically, he graduated at fourteen years of age.
His father's will also indicates that the family owned at least 23 slaves that were divided among the children, with Alfred receiving six. It is not clear whether these slaves worked the land for the Nicholsons or were house servants, nor is the level of young Alfred's interaction with them revealed. Financial ledgers kept by his brother-in-law, however show that Alfred received $97 “By Hire of Negroes for 1823.” He would have been familiar with every type of enslavement at the time, including quasi-slaves, and perhaps even encountered freedmen in more cosmopolitan areas in Tennessee like Nashville or Memphis.
One incident from the young man's experience with the peculiar institution suggests that he was a typical southern slaveholder. In 1824, the sixteen-year-old Nicholson brought his slave Moses to Nashville to be sold, for $596. Assuming that Moses was one of the six slaves granted Alfred in his father's will, he would have been known Alfred for his entire life. There is no mention of whether Alfred had any reservations about the transaction, or his reaction to the sale of another human being, perhaps the most unequivocal expression of an institution that would be the dominant political issue of his lifetime. The only other reference to slaves or servants was the oft-repeated story of Alfred's return in 1829 from college, which suggests a level of informality and possibly a degree of affection between owners and slaves: he surprised his mother in the middle of the day, and “she took down the dinner horn and called the servants to the house to rejoice with the family and have a holiday.”
Education and Early Professional Life
In 1824, Nicholson was enrolled at the University of North Carolina in Chapel Hill, entering as a sophomore. At that time UNC was the best school in the South, so that attendance there required him to ride hundreds of miles on horseback. Time and financial constraints would not allow him to return home until he was graduated three years later. Nicholson studied medicine at UNC and graduated with honors, but he seemed ambivalent about a career as a physician. The year after earning his degree, he attended medical lectures in Jefferson Medical College Philadelphia, which only convinced him that he had little interest in being a doctor.
This change in career interests and his swift return to Tennessee was likely due to a budding romance with Carolyn Gordon Reilly. The couple first met when she took a shortcut walking to school in Columbia and encountered “a scholarly-looking boy, with books under his arm . . . his Leghorn hat, with a green band, struck my notice.” Carolyn was a similarly ambitious and intelligent woman who was forced to take over as the head of the household at fifteen, when her mother died. Her father was a prominent Maury County doctor, who was born in Dublin and had served as a surgeon in the British Navy. When Dr. Reilly's ship was wrecked in 1803, the survivors were brought to this country, and he ultimately settled in North Carolina. Like Alfred's parents, the O'Reillys migrated to the Columbia area around 1806.
Alfred pursued Carolyn with the same tenacity and diligence that he brought his academic studies. So regular were his visits to her home that Carolyn recounted of how when his horse wandered off while hunting squirrel, Alfred walked back into town and found it waiting under the apple tree at her home. For reasons known only to her, she helped persuade young A.O.P. to abandon a medical career and study law, perhaps having seen first-hand her father suffer through the long and unpredictable hours of the profession. We only know that within a year after returning from Philadelphia, he had married Carolyn, abandoned any effort to practice the healing arts, and threw himself fully into becoming an attorney.
On his return trip home from Philadelphia in March 1829, Alfred stopped in Washington, D.C. long enough to attend the inauguration of fellow-Tennessean Andrew Jackson. Such an experience must have expanding his horizons and stoked a previously dormant interest in law and politics. After his marriage in June 1829, Nicholson quickly set about the study of jurisprudence. At that time, one could 'read law' to become an attorney, which meant self-study (usually reading Blackstone's Commentaries), working in a law office, and demonstrating proficiency before the courts without attending a formal law school. In July 1830, a mere year after he began his legal studies, Nicholson was deemed “a man of honesty probity and good demeanor” and able to be licensed as a lawyer. It is reported that he was examined by Justice John Catron, would precede him on the Tennessee Supreme Court by four decades. Thus, Nicholson had completed both a medical and legal education by the time he was just 21.
Nicholson needed to establish himself as an attorney, so in in 1830, he opened a printing office with backing from his father-in-law. He also began editing a weekly Columbia newspaper, “The Western Mercury,” a practice he would repeat several times over his career. In just a few years of practicing law, however, Nicholson was regarded as a jurisprudential savant, and he was able to replenish the finances depleted by his many years of schooling. By 1834, he was able to sell the paper and pursue law full-time.
Alfred was also generously devoted to family and friends. When his sister Maria's husband died, it was discovered that Mr. Walker had been insolvent and Maria and her family would be forced from her home. Nicholson instead sold his own home and used the proceeds to purchase her property so that she could remain unhindered by debt.
Political Career
By 1831, Nicholson had became active in the local democratic party, and was an avid Jacksonian. He ran that year for the state house of representatives but was defeated in his first race. Undeterred by the setback, he ran again in 1833 with dramatically different results – “the crowd rushed to [his office], seized him and hoisted him to their shoulders [and] tore up his hat.” He again prevailed in the state house elections of 1835 and 1837.
Nicholson's law practice flourished despite, or perhaps because of, his political service. He won a seat as one of the 60 delegates to the 1834 constitutional convention, a body that made significant changes to Tennessee's governmental system. A product of populist principles of Jacksonian democracy, the new state constitution expanded citizen participation in government, while at the same time limiting the vote to white men – the original 1790 constitution had allowed freed slaves the franchise. It also established for the first time a state supreme court of three judges, one from each geographic “Grand Division” of the state, who held office for twelve-year terms. The revised constitution was ratified by over 70% of the electorate the next year.
Perhaps recognizing through his participation in the constitutional revision that Tennessee law was in need of logical organization, in 1836 Nicholson, in collaboration with Robert L. Carruthers of Lebanon, published A Compilation of the Tennessee Statutes. A near-Herculean undertaking, Nicholson worked long hours on the volumes and spurred on his partner with the prospect of fame and “six thousand copies at five dollars a copy.” Nicholson even declined the potentially lucrative office of Commissioner of Titles in Mississippi so that he could complete their compilation. His efforts were soon rewarded when the three members of the new state supreme court, William B. Turley, William B. Reese, and Nathan Green lauded it in 1837 as “the best work of the kind we've seen.”
During these years, Nicholson was no doubt aided in his legal and political success by his affiliation with fellow Columbia attorney James Knox Polk. A consummate party loyalist, Nicholson became a close friend and political advisor to the staunch Democrat and Jacksonian (Polk was nicknamed “Young Hickory”), who was elected Governor in 1839 by a slim 2% margin. Such was Nicholson's stature and reliability that in 1840, when longtime Senator Felix Grundy died in office, the new Governor appointed the 32-year-old Nicholson to finish out Grundy's term through February 7, 1842. In the era before the Seventeenth Amendment required the popular election of Senators, state legislatures selected its United States senators, and the partisan Nicholson did not fare well in that combative body, reflecting the bitter party politics in the state, Polk's splintered influence, and Nicholson's primarily Middle Tennessee political base. It has been claimed that Nicholson asked not to be considered for the post, although such humility would not technically prevent the legislature from re-appointing him and may have been done as a way to save face after the fact. Undaunted, Nicholson remained active in local Democratic politics, easily winning election to the Tennessee Senate in 1843, as well as to state and national Democratic conventions.
After returning from Washington, Nicholson went home to Columbia to earn money in his typical fashion: practicing law and editing newspapers. During the 1844 election, where the main issues were Texas, tariffs, and slavery, Nicholson rode throughout the state campaigning for his friend Polk. Even though Young Hickory won the presidency, he did so without winning his home state, a first. Nicholson is said to have been the person who told Polk of his electoral victory, riding to his friend's Columbia residence to provide the news in person. At only forty-nine, Polk was the youngest man to have won the Presidency, and he promised that he would serve only one term. Having achieved all four of his major goals in office, true to his word, Polk did not seek re-election in 1848. Sadly, weakened by his time in office, Polk died just 103 days after his term ended. Nicholson was selected by the legislature to deliver his friend's eulogy.
During Polk's presidency, Nicholson remained in Nashville and strengthened his Tennessee political ties, serving in the state senate from 1843 to 1845. The chivalrous Senator Nicholson introduced legislation securing for married women legal right to their own property, although the measure was defeated in the House. He returned to editing, this time leading the Nashville Union from 1844 to 1846, and also was appointed to the board of directors and later made the president of the Bank of Tennessee in 1846. The always-busy Nicholson also supplemented his compilation of the Tennessee statutes in 1846. Governor Brown appointed Nicholson in 1849 to be a special chancellor in Nashville, which appears to be his first time on the bench. In 1850, Nicholson was appointed to serve as Chancellor of the Middle Division, as well as Special Circuit Judge, but resigned those positions in 1851 so he could be a delegate to the Democratic National Convention.
When Franklin Pierce ran in 1952, Nicholson campaigned for him throughout the state, in a buggy drawn by a claybank gelding named Henry Clay (Polk's opponent in 1844). After Pierce was elected President, he tried to appoint Nicholson as Postmaster General and Minister to Spain, but he declined, preferring to stay in his native Tennessee. Nicholson did live in Washington for some of the Pierce administration, where from 1853 to 1855 he served in the lucrative position of printer for the United States House of Representatives. Pierce again asked him to serve in his cabinet as Postmaster General, but Nicholson preferred to edit the Washington Union from 1853 to 1856.
After three years away from Tennessee, Nicholson returned to Maury County in late 1857. He and Carolyn had been apart much of the time spent campaigning for Polk and Pierce, with her residing in their Maury County home built in 1850 on Little Bigby nicknamed “Hickory Hill,” while he politicked in Nashville. Distance nonetheless did not dampen their ardor – they had eight children between 1831and 1851, all but two who outlived their parents.
Nicholson was finally able to cobble together a sufficient base of statewide support to win election to the U.S. Senate in 1858, only to have that term abruptly cut short by the Civil War. An opponent of immediate secession on the grounds that all efforts to preserve the Union had not yet been tried, the rebel attack on Fort Sumter and Lincoln's declaration of war on the Confederate States decided the matter for him. Long an advocate of what is now known as “states rights,” Nicholson felt that the Constitution allowed each state to decide whether to allow slavery within its borders, a principle that in an 1848 letter he called “popular sovereignty,” a term that came into common use in the succeeding decades. Not satisfied that the south had exhausted every remedy short of secession, Nicholson opposed outright or pre-emptive rebellion.
He left Washington after serving as Senator for only one session of Congress. Once Tennessee had formally voted for succession, becoming the final state to join the Confederacy, he and the state's other Senator, Andrew Johnson, had to decide their roles. Nicholson reasoned that to hold his seat in Washington would make him guilty of open treason against the United States, making him irrelevant at best, and at worst a criminal, for trying to represent a state that made clear it no longer wished to remain in the Union. On July 11, 1861, he and the other southern Democrats from Confederate states were expelled from the Senate and labeled traitors, despite the conciliatory efforts of pro-Union Senators like Johnson, who remained in Washington during the initial hostilities. As a man with no military experience and presumably little interest in warfare, Nicholson quietly returned to his Maury County home.
Like many border states, Tennessee see-sawed between Union and Confederate control throughout the conflict – the state saw more battles than every state other than Virginia. Because Nashville was the seat of state government and was held by both Union and Rebel forces at various times in the conflict, there was virtually no legislative or judicial activity from 1861 to 1865. Consequently, by the time hostilities finally ceased after the Appomattox surrender, a considerable backlog of legal matters had built up, allowing practicing attorneys like Nicholson to rebuild their practices as well as their finances.
Nicholson's post-Civil War Activities
Once the Union gained control of middle Tennessee, Nicholson lived in Alabama with relatives for most of the war. Despite his presumed non-partisanship, Nicholson was twice captured while traveling near federal-occupied Nashville, and imprisoned by Generals Negley and Thomas. The first time his longtime friend Vice-President Andrew Johnson was able to quickly secure his release; the second, he was held in the Tennessee State Penitentiary until his political prominence was leveraged to ransom Confederate captives. Despite the relatively short duration of his stays in prison, his experience incarcerated would influence his legal perspective, and in turn the Tennessee Constitution.
After the war, Nicholson wrote a detailed letter to President Lincoln seeking a pardon (a hand-written copy of this request is attached, along with a type-written transcription). The letter amply reflects Nicholson's simple but elegant writing style, as well as his modesty, but it rubbed some commentators the wrong way – perhaps it was how he addressed it to “His Excellency Abraham Lincoln” or his impertinence in asking for his unpaid salary as a United States senator. As reported in the New York Times:
A.P. Nicholson, who withdrew from the United States Senate on the breaking out of the rebellion, has filed a petition with the president for pardon and amnesty. Mr. Nicholson pleads most piteously that his sins be forgiven. These sins, according to Mr. Nicholson, are rather of omission than commission. He says that he was not in favor of secession, nor did he take any active part in the rebellion. He argues, in effect, that his offense was more in failure to stand by the Union than in acts against the government. We are informed that Mr. Nicholson has actually applied for pay as Senator from Tennessee, during the remainder of time which he did not fill.
But Boothe's bullet denied Nicholson that reprieve from Lincoln, and fortuitously elevated his friend and fellow Tennessean Andrew Johnson to the presidency. Johnson quickly pardoned Nicholson, which allowed him to vote, practice law, and hold office again, unlike many who had supported the Confederacy but lacked his connections. Impoverished by the war, Nicholson spent several years rebuilding his finances by practicing law, where he swiftly rose to prominence. Such was his regard that when the Senate tried to impeach President Johnson (the first time such a step was taken against a sitting President until Clinton), Nicholson was one of several attorneys retained to defend Johnson in that proceeding.
As evidenced by Johnson's impeachment, the years directly after the war were ones of bitter partisan battling. Anti-confederacy politicians felt they had been unfairly suppressed until the Union victory, which they saw as a vindication of their causes and a rare opportunity for sweeping social change. Many of the dramatic changes and the influx of Northerners into the Confederacy that occurred right after the war are often painted cynically as motivated by selfish motives, but not every reform was the result of scalawags and carpetbaggers pursuing naked self-interest. Homegrown populists saw the end of the war as a long-delayed chance to help working people, of all colors. The administration of Governor Brownlow and his appointment of three anti-establishment attorneys to the state supreme court began a short-lived era of the Radical Court, which vindicated the rights of small farmers and the freemen, but at the expense of traditional white, wealthy, and landed interests.
The convoluted machinations that lead to the end of radicalism and the return to power of traditional economic interests is beyond the scope of this paper. Suffice it to say that shifting political winds led radical Governor Brownlow to resign his position in exchange for taking a Senate seat, and the battle between Democrats and Republicans over how to deal with the potential votes of freeman and ex-Confederates ultimately led to the latter's enfranchisement. With nearly 50,000 conservative voters returning to the polls in 1869, the radical revolution was over, and established interests sought a way to consolidate their gains and make sure they would never be politically impotent again.
The first step in this process was calling a state constitutional convention to memorialize key principles surrendered to the radicals. As a result of his legal intellect, Confederate sympathies, and high-esteem among his peers, in 1870 Nicholson was elected to help rewrite the state constitution. The convention's primary purpose was to address the wounds of the war, as well as dismantle five statutes rewritten by the victors. Having been a strong behind-the-scenes force in drafting the new document, it was no surprise when Nicholson was quickly elected to the state Supreme Court, with the understood purpose of re-establishing many conservative-friendly and pro-Confederate legal principles. The newly constituted supreme court grew from three to five judges, with a sixth judge added temporarily to address an expected flurry of appeals of lower court decisions, which tended to be more populist and 'radical.'
Nicholson's Impact on the Tennessee Supreme Court
A larger six-justice court may have placed a greater premium on diplomacy and persuasiveness, two qualities the new Chief Justice possessed in abundance. Although this section will primarily discuss decisions authored by Nicholson, it should be noted that which particular judge writes a legal opinion does not always reflect that person's leadership in reaching the decision. This is especially true in the early days of the Conservative court, when the majority was consciously dismantling the legacy of the Radical Court and crafting a jurisprudential return to antebellum times.
The first judicial shot across the bow was issued during the September term of 1870 with Justice Nelson's decision in Smith v. Brazelton. The case was a simple action seeking damages arising from a trespass to land in Jefferson County, specifically the value of timber and crops seized by Confederate soldiers in early 1864. Union-leaning Brazelton accused his neighbor and rebel Smith, of directing General Longstreet's men to use and take Brazelton's property in order to spare his own. Proof was offered at trial that Smith rode with the rebel forces when they had arrived at the farm, even pointing to a stand of trees that was soon felled. A small contingent of Longstreet's officers camped on Smith's land, while the main body of troops encamped on Brazelton's property, causing considerable damage. Despite obvious questions of relevance, the trial court allowed testimony as to each man's political sympathies, and Brazelton won below. Smith appealed.
The court reversed, on both factual and legal grounds. It first found that much of the testimony permitted at trial was inadmissible and, despite numerous witnesses, evidence that Smith had actually caused the soldiers' trespass was “so vague, indefinite and unsatisfactory, that we are constrained to hold that there is no evidence to sustain the verdict.” The court found that any inference of Smith's role was improper, noting that despite his pointing at Brazelton's trees and crops, there was no way to know what he was actually saying to the soldiers as he rode with them. In fact, the court noted that it was perfectly permissible for Smith to beseech the rebel troops to spare his land in favor of his neighbors, as doing so was a form of the defense of necessity, without Smith incurring “the slightest civil responsibility.” This re-trying of facts at the appellate level is unusual enough, and the court's finding of insufficient evidence was sufficient to overturn the verdict.
But the new Supreme Court was not merely satisfied with righting the purported wrong done to Brazelton. The decision proceeded to bemoan at length the injustice of the Union's actions during the war. The Court opined the because the yankees had pursued a policy of foraging, seizure, and scorched earth, then certainly the Confederacy, as an equally sovereign belligerent nation, had the right to act similarly during the conflict, and without compensation to the victims. The Court expressly denounced the claim that the Confederacy was an insurgency, not entitled to the rights under international law of a warring nation, and was therefore a legitimate, de facto government.
Smith v. Brazelton would be the foundation upon which many of the Court's, as well as Nicholson's opinions, would be built, and its full ramifications would only be realized over the next several years. In contrast to the Nelson's verbose fifteen-page opinion, most of Nicholson's decisions were terse and to-the-point. This may be attributed to Nicholson's desire as chief justice to make sure the docket kept moving, but it is equally likely to be a result of Nicholson's unassuming nature and the time pressures he felt as a solo attorney after the war, rebuilding his fortune and law practice.
For example, in Cummings v. Diggs (1870), Nicholson requires less than four pages to dispose of the claim by a widow for the value of her husband's five rifles seized by a rebel officer. Contrasted with the ruling that evidence of Union or Confederate sympathies was inadmissible as being inflammatory and irrelevant, Nicholson now reasoned that Brazelton's recognition of military necessity as defense made testimony that the seizing party was a Confederate colonel not only admissible, but essential. The opinion also demonstrates Nicholson's economy, in that when he cites the convoluted Brazelton as his primary authority, he reduces that decision to eight succinct propositions filling less than a page. But within a single appellate session, the Court has gone from excusing tortious conduct (trespass) that benefitted a Confederate by assuming that it arose from necessity to excusing the intentional seizure of property with neither a showing actual necessity nor that the rifles were ever used by troops.
During that same September 1870 term, Nicholson issued the first decision of the Conservative Court directly addressing the validity of pre-war and Confederate debts. The Radical Court, along with many juries and trial judges in pro-Union counties, would not enforce debts incurred for Confederate purposes. They often reasoned that debts that arose as part of an armed insurrection against the Union could not later be enforced in its states' courts. Other times, they reached the same result by ruling that loans made during the war were only now payable in worthless Confederate scrip. Since most of these debts were loans made by established banks or wealthy landowners to lower- or middle-class debtors, the populist thread running through these decisions worried the financial community and traditional powerbrokers. A seemingly purely legal issue concealed serious political and social undertones, and the Conservative Court used these decisions to re-establish the pre-war pecking order.
For instance, in the remarkably concise Marshall v. Dodson, the dispute concerned repayment of a $190 balance owed by Dodson for the pre-war purchase of a slave. Dodson resolved his arrearage to Marshall by giving him a note signed by a Mr. Creed promising to pay the balance in Confederate money, with Dodson liable as surety if this was not done. The trial court instructed the jury that because the promise was made to repay in defunct rebel currency, it created only a duty for Creed or Dodson to pay the balance in Confederate scrip, not U.S. Currency. Predictably, the jury ruled for the defendant and denied any current liability for the debt. Nicholson's court nonetheless reversed, holding that the trial court's instructions “invaded the province of the jury” by deciding the ultimate issue in dispute. Instead of remanding the case for retrial, the Supreme Court now took the mantle of the jury, noting “[t]he proof was explicit, that . . . [Dodson was] bound to pay the sum of $190” and ruled for Marshall. The jury box must have felt full indeed, with the six supreme court justices squeezing in there to render their opinion of the evidence.
Nicholson's two-page opinion removed any doubt that the good old days were back, at least for lenders. In this case, Nicholson's brevity was less an indication of his economy with words than his dogged evasiveness of key issues. The court completely ignored the question of whether a court should or could enforce a debt incurred from the now-illegal practice of human bondage, even though courts had long refused to honor contracts for illegal purposes, such as gambling debts. The idea that a slaveholder could enforce such a debt after fighting a bloody war that had the consequence, if not the primary intention, of ending human bondage, is astonishing. The Marshall decision appears to strongly reaffirm the sanctity of personal property rights, even if that property is slaves, but if that truly was the sacred principle being upheld, why not honor a widow's property rights in the value of five rifles in Cummings? Property rights under the Nicholson court seemed to be a one-way street, with that boulevard running into the past and toward the beloved Confederacy.
Other cases were similarly contradictory. Another decision from that 1870 term, Lay v. Huddleston, can almost be viewed as a sequel to Brazelton. Once again, a rebel sympathizer stood accused of directing Confederate troops to seize his neighbor's property, in this case a mare. When rebel soldiers told Mr. Lay that they needed to send a courier, he gestured toward Huddleston's stable. Lay later claimed that he was excitedly asking the troops if they had any word of his son, who had been reported captured by Union troops. The younger Lay confirmed at trial, in what must have been emotional testimony, that he had been taken prisoner by the federals at the time, and that his father must have been exuberantly inquiring as to his whereabouts. Other witnesses offered by Huddleston attested to Lay's pointing at the stable and the swift removal of the mare. Faced with these contrasting testimonies, the jury found Lay's version more credible and ruled in his favor.
In typically short order, Nicholson's five-page opinion reversed the jury's verdict and factual conclusions. It is an axiom of appellate law that higher courts should not merely substitute their opinions for that of the trier of fact, whose presence during a trial makes them infinitely better suited to gauge the demeanor and determine the credibility of witnesses. Only in extreme cases should a jury verdict be overturned for a lack of evidence to support the verdict; Nicholson's decision again did just that. It is notable that he did not exclude any trial evidence as being inadmissible, but rather scolded the jury for drawing the wrong inferences from the witnesses' accounts. In essence, Nicholson held that based on his paper review of the trial evidence, a jury could reach only one conclusion: Lay's state of agitation could only be a product of his concern for his missing rebel son, and had nothing to do with the horse. The tortured logic applied by Nicholson, on pages 172-73 especially, confirms that his decision to overrule a jury was, like the excited and gesticulating Mr. Lay, a product of emotion rather than reason.
There are a number of theories for Nicholson's abandoning conservative principles of judicial objectivity in Lay v. Huddleston to blatantly second-guess the jury's inferences. As a two-time captive of Union forces himself, as well as the father of a prisoner of war, he might have empathized too deeply with the plight of the worried father and been reluctant to hold him liable under the circumstances. Perhaps as a closet rebel, Nicholson may have been skeptical that the Confederate father had received a fair trial in a hostile jurisdiction. Moreover, in the absence of direct proof that Lay had aided or benefited from taking the mare, perhaps Nicholson wished to rein in a runaway jury settling old scores in a union county (in this case, literally, since the case arose in Union County in east Tennessee).
Contrast Lay with the state supreme court's 1870 decision in Branner v. Felkner, where the court reversed a verdict exonerating a Union soldier who was sued for confiscating during wartime a horse used by Confederate forces. The court relied on a hyper-technical standard: the soldier offered insufficient proof he was a Union soldier, he could not show that he was acting under direct orders, and the judge failed to instruct the jury that private soldiers were permitted to seize contraband. Certainly, the court had not asked similarly probing questions into the behavior of the rebel troops who had taken the mare out of Huddleston's stable, probably because that horse was of a different color – Union blue.
Although Nicholson did not author the Branner opinion, as one of six active judges on the court, as well as its chief justice, he and the other jurists were consciously crafting a consistent body of case law. The Conservative Court was gradually dismantling the changes made by the Radical Court before them, and they were not subtle about doing so:
The overtly political nature of the Conservative Court's opinions is also evidenced by the Court's treatment of Union defendants. Just as Confederates could do no wrong, or at least the evidence always failed to prove that they had done wrong, Union defendants were invariably liable. So while Confederates could seize rifles and horses, even if not under direct military orders, Federal agents acting under direct statutory authority were found to be acting wrongfully.
Nicholson's opinion in Dawson v. Susong again illustrates the hurdles a Union-allied litigant must surmount to win a case in 1870. Dawson's unbranded mule had been seized by Confederates in 1863, but two years later he saw the beast with Susong, who claimed he bought it at a government sale. The mule now carried brands, including that of “U.S.,” but the court held that neither a brand or its purchase at public sale was a sufficient to establish the Union or Dawson's claim of ownership – the brand and sale merely indicated possession, not lawful title. Nicholson ordered the case remanded for a new trial, and with instructions that the jury be told that they need not give credence to any outward signs of ownership of the government.
Nicholson and his fellow Conservatives used similarly tortured legal reasoning to revive the legitimacy of debts founded upon Confederate notes, which the Radicals had found an unenforceable contracts arising out of treason. In another 1870 decision, Coffin v. Hill, Nicholson would not enforce specific contractual language mandating repayment of $180 “but not in Confederate notes.” Instead, the court affirmed a trial court that allowed proof of the current, and much diminished, value of the debt. The following year, in Bond v. Perkins, Nicholson held that a lender could recover for a loan even if it knew the money was going to be used for an improper purpose, in this case, to pay taxes owed to the Confederate government. The real lesson from Bond was that financially supporting the Confederacy was not an improper purpose, and thus Tennessee courts would not hamper the enforcement of such contracts.
In 1872, the Nicholson court probed the outer limits of deference to the sincerity and innocence of war-related transactions in Burts v. Beard, a suit seeking compensation for 155 cords of wood harvested in May 1865 from Burt's land. Beard cut the timber under written authority of the superintendent of the U.S. Military Railroads, but the court derided this purported “military order” (quotes in original) as lacking any authority or necessity: “there can be no pretense . . . that any such thing as military compulsion exists in this case” because “no war actually existed within the borders of the State at that time.” Accordingly, the court denied Beard any defense for the taking and awarded judgment for the plaintiff. Such a ruling would negate every claim for property taken during the war, even when for the direct benefit of and use by the Union, and even if under written orders from military authorities. Recognizing the limitless breadth of this precedent, to stem the floodgates of revisionist litigation, the United States Supreme Court reversed Nicholson and his brethren in Beard v. Burts, 95 U.S. 434 (1877).
Nicholson and the other Conservatives did not limit their judicial activism to validating Confederate seizures and debts, but they also made sure that being a rebel would not result in punishment. The Tennessee legislature passed a law in 1868 barring any members of the Ku Klux Klan from serving as court officers, by requiring “all officers” of courts to swear an oath disavowing the organization. However, in the 1870 decision of Ingersoll v. Howard , Nicholson significantly weakened the law by allowing present or ex-Klansmen to practice as attorneys in court, arguing that they were not technically court officers (despite being 'officers of the court'). His narrow construction of the statute conflicted with its expansive language of the legislation, and Nicholson's reasoning might have been influenced by the memory of his difficulties earning money in the immediate aftermath of the war.
A reminder of the Conservatives' lingering battles with the remnants of the Radicals arose in the 1870 case Calloway v. Sturm, a decision reminiscent of a low-level Marbury v. Madison. In Calloway, a Judge Maynard was serving in Congress when Governor Brownlow appointed him to the state supreme court to fill the unexpired term of another Justice, who had resigned. The Governor did not make clear that it was an interim appointment or announce the date for an election. A disgruntled and unsuccessful litigant argued that his case should not have been dismissed by Maynard because he could not be both a justice and a Congressman, and therefore all of his judicial rulings were void.
Although affirming Maynard's acts as a judge to be valid, Nicholson deftly rebuked Brownlow and asserted the right of the judiciary to overrule executive branch excesses. He held that while one man could not be both Congressman and justice, it was not clear which of the two roles was in error, and the distinction mattered little for the question before the court: the validity of the judge's dismissal. Affirming the principle that actions taken under judicial auspices are valid even if collateral attack finds flaws in the judge's authority, Nicholson noted that the truly illegal act was committed by Brownlow, by regally deciding that Maynard could have the entire unexpired term rather than ordering an immediate election. (As a practical matter, the steady re-enfranchisement of Confederate soldiers skewed the electorate toward the Conservatives, so Brownlow's appointees were unlikely to win a contested the office.)
Dealing with the newly freed slaves presented challenges throughout the south, and eventually cases dealing with the scope of freedmens' rights came before the Tennessee courts, if not necessarily before Nicholson himself. In Lonas v. State, (1871), Justice Hall affirmed the conviction of a black man for violating a state law passed 1870 making marriage or cohabitation between the races a felony. Despite a vigorous defense that the past war and 14th and 15th Amendments prohibited such legislation, the court, in purple prose that belied the coarseness of the ruling and foreshadowed Plessy v. Ferguson, stated that abolishing slavery had not removed the “mark of degradation upon the race.” The 1872 opinion by Justice Turney in State v. Bell made clear that even a mixed marriage legally performed in Mississippi was no defense to a charge of illegal miscegenation and cohabitation in Tennessee. In language that foreshadows recent debate concerning the ramifications of legalizing gay marriage, the Turney court opined that under the Full Faith and Credit Clause of the U.S. Constitution, Tennessee was no more obligated to honor such a union as it would be to respect polygamy “practiced by the Mohammedans” or a marriage between father and daughter.
Two of Nicholson's most influential opinions helped solidify the legal foundation for the practice of sharecropping, by favoring the rights of landowners over those of the tenant farmers who worked the land. In Philips v. Maxwell, 60 Tenn. 25 (1872), the court allowed a landowner's lien in cotton take precedence over all other rights, even extending it retroactively to the time of the tenancy contract. The result was that because there was no practical way for a buyer to know whether a crop had a lien attached, the landlord's consent was required for any sale of crops, providing a landlord a right of set a price leveraged by their veto power.
In 1874, the priority of landowners and lenders was further strengthened in Polk v. Foster, where the court essentially converted a mortgagor back into an owner. The farmer had purchased the land for 500 bales of cotton, payable by 125 bales of cotton each of the first four years. Nicholson construed the land “sale” to be conditional, and therefore title did not pass until full payment was received, effectively making the transaction a lease-purchase arrangement, despite no actual language in the contract to that effect. As a consequence of these two decisions, buyers could never be wholly certain they owned crops they purchased, and tenants unsure whether they owned the crops that they grew until receiving the permission or express approval of the landowner. Essentially, any farmer who didn't own his land outright was for all intents and purposes a sharecropper.
The final jurisprudential topic of Nicholson's influence was the sacred institution of marriage. One would expect that a devoted husband and father of eight would strongly support the practice, but two of Nicholson's opinions on this topic stand out, especially since they seem to contradict each other in many respects. The 1870 case Coover v. Davenport may be most notable because it appears to be Nicholson's longest written decision. Lethia Coover was “poor, but of good character and respectable family,” sued D.E. Davenport for breach of marriage contract when he failed to divorce his wife, despite numerous promises to do so and frequent and lengthy affirmations of his love. Miss Coover did not initially know that her beau had a wife in Paducah, but after he assured her that divorce was impending, she withdrew from society to await its conclusion. Nicholson devotes several pages to reciting the details of their correspondence, and Miss Coover's virtuousness practically springs from the page. When she finally realizes that her beau has cruelly mislead her, Miss Coover sued, but the jury found that her failure to end the relationship immediately upon learning of his marriage barred recovery. Nicholson reversed, concluding that knowledge of Mr. Davenport’s prior marriage might be relevant as to the amount of damages, but did not preclude all legal liability. Whether Miss Coover had reasonably relied upon his assurances of an impending divorce was pertinent as to the extent of the hard of the breach, but did not wholly absolve Davenport of all responsibility.
Yet for all of Nicholson's seeming chivalry, he takes a sterner view of Narcissa Hollingsworth's similar lawsuit in Williams v. Hollingsworth (1873), reversing the jury award to her of $5,000 for breach of marriage contract. Most of this four-page opinion recounts a convoluted procedural history, but Nicholson provides two primary grounds for reversal: first, that Mr. Williams should have been allowed to raise Narcissa's seduction of him as a defense to her suit, and second, that the trial judge had excluded evidence of Miss Hollingsworth's bad character and “acts of sexual intercourse with other men.” While legally similar to Coover, a cynic might conclude that Nicholson's seeming endorsement of a sexist double standard is simply a reflection of his era. More generously, his decisions in Coover and Hollingsworth show a principled man, equally vigorous in protecting the marital contract from besmirchment, whether by a heartless cad or a brazen hussy.
Demise and Interment
Nicholson sat on the state supreme court for the six years leading up to his death. Although an extra justice was added to the court to assist in handling the large number of appeals, the court's work was never-ending, and there was speculation that the labor took a heavy toll on the jurist, who was sixty-two when he took the position. Nicholson passed away on March 23, 1876, the cause of death never determined.
The Nashville Banner ran a lengthy and glowing obituary the next day, citing his humble upbringing, many forms of public services, and powerful intellect. It is telling that the obituary ends with this description of his character: “In all the heated debates, in the legislative halls, on the hustings and elsewhere, in which he participated, he was never known to use an unkind word to his adversary, and it is said that he never treated anyone discourteously.” Few modern lawyers can hope for or expect such an epilogue to their life or career.
Nicholson was buried in the sprawling Rose Hill cemetery, a stone's throw from the Maury County Courthouse in his beloved Columbia. He rests next to his wife Caroline, who lived for another 18 years, as well as his Confederate sons A.O.P. Jr. and Andrew Jackson Nicholson, who died in a Union prison camp, as well as two namesakes born after his death, A.O.P. III and A.O.P. IV. (Photographs of the graves taken in October 2011 are included in the Appendix). Fittingly, their family plot is a simple one, with one large headstone with the name “Nicholson” and several smaller groundstones to mark the individual graves, as befits a man of such rare talents, achievement, and most of all, modesty.