In Memory of

JUSTICE JOSEPH WARD HENRY om

eee eee ee ee

Tennessee Supreme Court ee eee eee

1974-1980 ee President, Bar Association

N-1971 esa — —

Remarks of To live honorably; To injure no other man; Tennessee Supreme To render every man his due.” Court Justice Because he believed and practiced those precepts, Joseph W. Henry of Ray L Brock, Jr. Pulaski will long be remembered. He left his mark! He will be remembered as an able, a distinguished jurist—one who believed in justice for every individual and had compassion for the unfortunate and We are shocked and deeply saddened underprivileged. by the sudden, unexpected death of our He sought to even the odds for brother, Mr. Justice Joe Henry. women, black people, children and the We who served with him on the Su- mentally ill. He had a commitment to preme Court had the highest respect and justice. warmest affection for Justice Henry. His His opinions were thoroughly re- passing has left a void on the bench and searched and carefully documented. at our conference table that will not soon They sparkled with his colorful langu- be filled. age. Often they were laced with his Centuries ago, Justinian wrote: wit— sometimes even a little humorous. He loved to write what he referred to as “Justice is the earnest and constant “definitive opinions” on issues of current will to render every man his due. interest, especially of criminal law. In The precepts of law are these: these he would go as far back as a cen- 8 TENNESSEE BAR JOURNAL

tury or more and give the historical stand in the years to come as a monu- development of the question, discussing ment to the vision, the energy, the dozens of relevant decisions, pro and determination and optimism of Justice me me con. He had a commitment to excellence. Henry. He had a commitment to reform. \RY On numerous occasions he filed dis- He thoroughly enjoyed his position as senting opinions—on principles which he a member of the court. He loved to joust regarded as fundamental. He would with counsel during the presentation of not—could not—compromise. He added oral argument—especially with attor- richly to the legal literature of this neys who were old friends of his. One of State. his delights was to state a conclusion in ee ee He painted with broad, sweeping opposition to the contention of the attor- strokes, sometimes causing some of us, ney and say: “Now, Counselor, how are his colleagues, to lodge a friendly com- you going to get around that?” plaint that he was saying more than was Joe Henry was a proud man—proud of

necessary to decide the case at hand— his profession, his country and Tennes- omy omy that he was running out of bounds to see. But, most of all, he was proud of his tion make a touchdown. If this resulted in his family, his dear wife and helpmate, removing some language from the opin- “Miss Marjorie,” his sons and daughters- ion, he would good naturedly assure us in-law, his grandchildren and _ his that the deleted material would go into a brothers and sisters and their families. collection of su¢h deletions to be pub- He was proud that his two sons, Joe, Jr. lished later under the title “The Best of and Bob, two of his brothers, Jim and Joe.” Jack, Jim’s son, Jim, Jr., and his wife, He left his mark not only upon the jur- Vanessa, all are . He relished his isprudence of this State, but, also upon role as the head of an illustrious family of the profession, the court system and its lawyers. A color photograph of all seven rules of practice and procedure. Henry lawyers, standing hand in hand at He was a principal architect of, and the Judicial Conference last year, was an; the driving force in putting into effect, hung in his office. One of them wore a his due.” many reforms. Just a few of these were: white suit, a Henry trademark, but it d and practiced was not Joe, it was Jim. I teased him— A new code of judicial conduct. that Jim had upstaged him. He replied, yh W. Henry of Rule 42—A statewide organized 1embered. with a grin, “You can’t win ’em all.” system for handling grievances Justice Henry was committed to hard against attorneys. work. He approached every task with red as an able, a New rules of practice and pro- me who believed the greatest urgency. The American cedure in criminal cases. dividual and had “work ethic” was deeply ingrained in New rules of appellate procedure. unfortunate and him. He seemed to live and work by a The Tennessee judicial informa- different time table. He was impati- tion system —a computer-based sys- ent—everything should have been done 1 the odds for tem for following a case from filing children and the yesterday —or, at the very least, today. to conclusion. 2 commitment to The court should decide an issue—even Establishment of a committee to if not ripe for decision by customary give advisory ethics opinions to thoroughly re- judicial standards. He seemed to fear members of the Bar. lly documented. that it might not return in time for him A advertising rule. is colorful langu- to “write on it.” He reminded me of the A commission to study and pro- 2 laced with his farmer in Robert Frost’s great poem, pose a plan for specialization by at-

. little humorous. mS “Stopping by Woods on a Snowy Eve- torneys. he referred to as ning,” who did not have time to watch _ issues of current Although many people contributed the woods fill up with snow in the beau- criminal law. In toward the accomplishment of these tiful New England twilight, but felt com- ar back as a cen- reforms, in a very real sense, they will pelled to push on, lamenting:

BAR JOURNAL AUGUST

“The woods are lovely, dark and deep, John F. Kennedy, in his Pulitzer-prize But [ have promises to keep winning book, Profiles in Courage, And miles to go before I sleep, wrote: “The courage of life is often a less And miles to go before I sleep.” dramatic spectacle than the courage of a Tennessee has lost a great leader— final moment; but it is no less a magnifi- A man with a record of solid achieve- cent mixture of triumph and tragedy. A ment —as a distinguished judge, man does what he must, in spite of per- ‘An illustrious lawyer, sonal consequences, in spite of obstacles A military leader, and dangers and pressures, and that is An adviser of governors, the basis of all human morality.” A gifted orator, Joe Henry encountered obstacles A colorful writer. throughout his life—and he hurdled We mourn his passing. them. Joe Henry met danger in his We salute his accomplishments! life— particularly on the battlefields of Tennesseans will long remember the Italy in World War II, and his gallantry name of Joseph W. Henry with the high- in action was rewarded by the medals he est respect and warmest affection. deservedly wore on the uniform of his country. Joe Henry knew pressures in his life—the pressures of defending the property rights, the liberty, and yes, Remarks of Jerome even the lives, of his clients—and the pressures of deciding the great issues of Abernathy, Pulaski Bar our day as a member of the Court of Last Association Resort of our state. He faced those. pres- sures—and he conquered them. Joe We come today to pay tribute to the Henry was, by every test, a moral man memory of a beloved friend, Mr. Justice of courage and character. Joe W. Henry, and it is meet and right I remember Joe Henry as a busy, that we do so in this place —in this his- involved lawyer, but one who was never toric chamber where he began his career too busy nor involved to offer his enthu- of public service to the people of Tennes- siastic encouragement to a younger see as the State Representative. from lawyer—one who was ever ready and Giles County to the General Assembly. eager to point young lawyers along the But the signal and unique achievements proper paths to professional advance- of Joe Henry's record of service to the ment. I remember a Judge Joe Henry, citizenry of his native Volunteer State— who, it seemed, was constantly on the which he loved so well—service as a go, speaking at law schools and seminars Legislator, as a soldier, as the Com- to further the cause of justice, and to manding General of the National Guard, enrich and ennoble the profession he and as a brilliant lawyer and, I believe, loved. an immortal jurist—all these have been And, I remember Joe Henry—my duly chronicled and each of you are fully friend and neighbor—a man of warmth cognizant of his contributions to our so- and wit. We all recall an assertive, ciety. aggressive Joe Henry. But I recall the So it is that I come today to speak of then Chief Justice of our state strolling Joe Henry—the man I knew, whose down the tree-lined street which runs by courage and character I respected and his home with a firm but gentle and lov- admired: Joe Henry—my brother law- ing grip on the small hand of his lovely yer, whose counsel and advice I fre- granddaughter, and delighting in every quently sought and freely received: and second of her company. I remember @ Joe Henry—the faithful friend and Joe Henry whose home was, and is, 4 neighbor I knew and loved. haven for his family and friends— both of

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| this Pulitzer-prize | which are legion. And I knew a Joe from the prophet Micah. But the Rev. les in Courage, Henry who could delight in telling tales Bill Moss could not possibly have known if life is often a less on himself. For example, he told me of that on May 14, 1974, when he was seek- an the courage of a the time on election night in 1970, when ing the nomination of his party as a Jus- 3 no less a magnifi- a staunch democratic friend of his, con- tice of the Supreme Court, Joe Henry ph and tragedy. A | cerned by early returns showing the closed his remarks to a Judicial Selection ist, in spite of per- | soon-to-be-elected governor Winfield Commission with these words: “I make a 1 spite of obstacles Dunn in the lead, called Joe for his as- solemn commitment to truth, justice and ssures, and that is | sessment. Joe reassured his friend by mercy. The language of the Holy Writ is morality.” saying, “Why, those returns have all got appropriate: intered obstacles to be coming out of East Tennessee. If I -and he hurdled | were you, I'd go down to Democratic “ “For what doth the Lord require of iet danger in his Headquarters, put up a sign on the win- thee but to do justice, the battlefields of dow saying ‘How sweet it is,’ and go on And to love mercy and to walk hum- , and his gallantry | home and go to bed.” bly with thy God.’ d by the medals he | Those of you who were at his funeral This is my commitment to you.” the uniform of his | will recall that the minister took as the knew pressures in text for his eulogy the familiar verse Joe Henry kept that commitment. 's of defending the | liberty, and yes, s clients—and the | the great issues of | of the Court of Last Joe Henry: A Memoir e faced those. pres- uered them. Joe test, a moral man ler. By FRED TRAVIS lenry as a busy, | one who was never | Retired Chief Political Writer Chattanooga Times to offer his enthu- nt to a younger | 'S ever ready and Joe W. Henry. The doctor said he had now Tennessee’s junior U. S. senator, lawyers along the a weak heart, damaged by disease and was chairman of the state Democratic fessional advance- abuse, and that it failed under stress. party at the time. He called me one day Judge Joe Henry, Joe Henry’s heart was never weak and and asked what I thought of establishing constantly on the it never failed. It beat strongly for the a blue ribbon screening committee to se- hools and seminars causes, principles and ideals in which he lect highly qualified candidates for the of justice, and to believed and the people he loved. It court. I knew four of the five incumbent the profession he beats on in the recorded opinions of what justices were planning to retire and that

ee. came to be known as the Henry court. a scramble for those places was immin- Joe Henry—my Lawyers sometimes called it Joe Henry ent. -a man of warmth & Co. call an assertive, I did so once, I think inadvertantly, in Sasser telephoned members of the y. But I recall the a piece I wrote for the Chattanooga state Democratic executive committee our state strolling Times. He complained that using those to sell them on the idea. He worked for reet which runs by words was a reflection on his colleagues, hours on end because many of the 36 but gentle and lov- all of whom had been elected to the Su- committee members were reluctant to hand of his lovely SS SS preme Court in 1974 in the first election allow outsiders to select the party nom- lelighting in every of its kind in Tennessee and the first inees for such high positions. I heard ny. I remember a time since 1910 that the state had an about this and just before the committee me was, and is, 2 almost totally new court of last resort. met I went to the Capitol to caution the id friends— both of , a Nashville lawyer and chairman. I told him what was afoot and

BAR JOURNAL AUGUST 11

cautioned that he would be confronted quainted when he was attending Middle with a motion to have the committee Tennessee State Teachers College at select as many qualifed lawyers for the Murfreesboro. It was a small school in court as could be found. those Depression years, only about 850 Ten lawyers and judges were listed as students, and getting to know other qualifed after hearings across the state people on the campus was easy. Later it by the panel headed by retired Dean was to become State John' Wade of the Vanderbilt Law University with 11,000 students full- and School. Among those on the list were part-time. Chief Justice Ross Dyer and Justice He took time out to get a quick law William H. D. Fones, a Democrat who degree at Cumberland University in had been appointed to the court by Gov. Lebanon. Many people did that just out . of high school and before completing The committee was reconvened and college because the American Bar Asso- agreed to vote by paper ballot, choosing ciation. was bringing increasing pressure one justice (the state Constitution refers to force law schools to require three to them only as judges) from each Grand years for a LL. B. degree. Cumberland Division and two at large with no more turned out many illustrious lawyers, than two from any division. Fones was jurists and statesmen: judges like nominated for the West Tennessee Grafton Green and A. B. Neal, who be- place, William J. Harbison for Middle came chief justices of the Tennessee Tennessee and Robert E. Cooper for Supreme Court, statesmen like Cordell East Tennessee. Hull and Albert Gore Sr., lawyers like Under the procedure adopted, on each John Jay Hooker Sr. and the great Seth ballot the lowest of the candidates in the Walker. The list is almost endless. vote count was eliminated until one On a visit with one great alumnus and received a majority of those present and former faculty member, Judge Albert voting. Williams, who had just passed his 92nd The panel then proceeded to vote on birthday, I asked him why his alma the at large candidates. Henry and Ray mater had such a distinguished alumni. L. Brock were the winners. In August “The students accounted for it,” he they faced only token opposition and said. “They came because they wanted easily won. They campaigned together to be lawyers. They wanted to get into across the state, holding press confer- practice and make money for they were ences to give their views on what the mostly poor and couldn’t afford the lux- “new” court should be. ury of three years in a law school. Henry campaigned as he did every- “Of course, they had good teachers. thing—with gusto. He was an alcoholic Judge Green and Judge Neal taught who gave up drink and turned into a there part time as I did. But I think most “workaholic,” driving himself and his of the credit goes to the students,” he law clerks to 12- and 14-hour days. He added. “A lot of them came from Texas long had wanted to climax his career as a because it was the nearest school still justice and, if possible, as chief justice. offering a one-year course. Once when I He was to achieve all of that and more, was in Austin, I went to the House of leaving an outstanding mark on Tennes- Representatives and asked all those who see judicial history through well- graduated from Cumberland to stand. reasoned and eloquent decisions, Half the House rose.” sometimes in dissent, sometimes speak- After his service in World War II, Joe ing for a three-judge majority and often returned to private practice in Pulaski for a unanimous court. and was elected to the Legislature, serv- Joe Henry and I first became ac- ing in the House in 1949. We renewed 12 TENNESSEE BAR JOURNAL

tere

is attending Middle our friendship then for I was the chief scholarship he exhibited. He was in- sachers College at political writer for The Times. When clined on occasion to use trite phrases; s a small school in Frank Clement ran for governor, Henry one of his favorites was out of President ars, only about 850 supported him and became his adjutant Kennedy’s inaugural address; it was the ng to know other general and one of his speech writers. phrase, “From this day forward .. .” 3 was easy. Later it He did not, as some have assumed, write Henry used it on several occasions to le Tennessee State that oratorical disaster, the “How Long, proclaim new principles of law and over- 0 students full- and O Lord, How Long” keynote speech turn old precedents. Clement delivered to the Democratic “From this day forward,” he wrote in 0 get a quick law national convention in 1956. one opinion, “entrapment is a defense in and University in Henry and Hilton Butler wrote drafts this state.” It had been one a long time in le did that just out and submitted them to Clement, but the every other jurisdiction in the country, before completing governor decided he could write as well he noted. .merican Bar Asso- as orate. It was a great mistake and he He was a great champion of the De- ncreasing pressure never mentioned the speech again until claration of Rights in the Tennessee ; to require three shortly before his death. By that time, Constitution, referring to it on more sgree. Cumberland he too had come to recognize it was his than one occasion as superior to the Bill lustrious lawyers, worst moment. of Rights. He and Judge Fones, the two nen: judges like During Clement’s third (1963-67) ad- “liberals” on the court, often were joined . B. Neal, who be- ministration, a vacancy occurred on the by Judge Brock in holding that convic- of the and Henry badly wanted tions which would withstand a Bill of esmen like Cordell it. Clement still had a burning ambition Rights test must be overturned because > Sr., lawyers like to continue his political career by run- the Declaration of Rights granted broad- and the great Seth ning for the U. S. Senate. He was, there- er protection to those accused in this 10st endless. fore, afraid to appoint Henry, who had state. great alumnus and become a controversial figure because of Henry, of course, was widely criti- yer, Judge Albert the Hinesville, Ga., incident in which cized for “legislating” new law and st passed his 92nd Henry, driving a jeep and in uniform establishing by case law principles the im why his alma with a swagger stick, was arrested for General Assembly refused to adopt. The nguished alumni. driving while under the influence of other judges joined him in the controver- unted for it,” he alcohol, public drunkenness and assault- sial rule requiring lawyers to pay an ‘ause they wanted ing with his swagger stick the police annual regulatory fee and establishing a wanted to get into officer who arrested him. disciplinary board to handle charges of mey for they were At his suggestion, Clement appointed unethical conduct by those practicing In’t afford the lux- a panel to investigate. As so often law in Tennessee. In doing so the court law school. happened, Henry took charge of the relied upon a statute which Henry per- id good teachers. commission, wrote its report and exon- suaded the Legislature to pass when he tdge Neal taught erated himself. All the reporters cover- was president of the Tennessee Bar As- |. But I think most ing the Capitol knew what had hap- sociation and which had gone largely the students,” he pened, though they couldn't prove it. unnoticed. He was an advocate of an came from Texas But the governor wasn’t taking a chance “integrated” bar but was unable to earest school still on the criticism he was likely to receive persuade the Legislature to go that far. irse. Once when I if he appointed his former adjutant gen- When “conservatives” in the General t to the House of eral to the state’s high court. Assembly found out about the require- sked all those who Their long friendship ended there and, ment that lawyers be subject to a disci- erland to stand. though they subsequently resumed a plinary board financed by a “tax” placed relationship of sorts, it was never the upon them, a movement to repeal the Vorld War II, Joe same again. statute gained momentum. ractice in Pulaski The late justice may be longest re- It passed the House but was bottled Legislature, serv- membered for his eloquence and humor up in the Senate judiciary committee, 149. We renewed in his opinions and certainly for the where it died despite heavy pressure

BAR JOURNAL AUGUST 13

from the chairman, Sen. Dan Oehmig, zenry capable of self-support and bear- R-Chattanooga. Lt. Gov. John S. ing arms and adding to the resources and Wilder, D-Somerville, was equally de- reserves of manpower. We, therefore, termined to keep the new disciplinary have a substantial and compelling state machinery and persuaded a majority of interest in the face of a clear and present the committee against repealing the law. danger... The effect of repeal, in any event, would “This holding is in no sense dependent have been minimal since the Henry court upon the way or manner in which snakes also had asserted its inherent right to re- are handled since it is not based upon the gulate the practice of law in Tennessee, snake-handling statute. Irrespective of and the Legislature had no way of abol- its import, we hold that those who pub- ishing that claim. licly handle snakes in the presence of Much credit belongs to Joe Henry for other persons and those who are present modernizing rules of civil procedure and aiding and abetting are guilty of creating rules of criminal procedure, making and maintaininga public nuisance... .” them uniform and in conformity with Then there is Dunn v. Palermo, 523 federal rules. One cherished goal which SW2d 679, in which the late justice in- eluded him was a restructuring of the cluded a scholarly dissertation on the judicial system to equalize case loads in history of family names and ruled that a trial courts and make judges and chan- wife isn’t required to take her husband's cellors try criminal, civil, and equity name if she doesn’t want to. cases. Trial judges were opposed to it, as A couple of weeks before he died, I were court clerks, who foresaw the pos- was visiting with him and brought up the sibility of their jobs being eliminated or subject of readable appellate court opin- reduced in number. They persuaded a ions in this and other jurisdictions. I House committee to sit on the bill, even discussed the possibility of compiling a though it had been approved in the Sen- number of them into a volume, editing ate. out unneeded citations so that the book Thumbing through the Southwestern could be easily read and understood by Reporter, one is impressed by the large laymen. He showed a quick interest in number of opinions authored by Henry the project and asked me if I had ever during his relatively brief tenure and by seen the “original” Palermo decision. the ease with which his clear statements “I didn’t know there was any except of the law can be absorbed. His col- the published opinion,” I said. leagues on the court had the same talent “T'll get you a copy of the first one,” he but Henry’s opinions often stand out for said. “It was short and, I think, rather a clever turn of a phrase which was entertaining. But the other judges unique to him. thought it beneath the dignity of this For example in State ex rel. Swann v. court. The court was new then.” Pack, 527 SW2nd 118, he delineated Shortly his secretary handed me a carefully between the right of religious copy of the first Palermo, which contains freedom spelled out in state and federal this: constitutions and the responsibility of ‘Rose Palermo, a Nashville lawyer, the state to protect its citizens from is by birth and by choice Rosary Theresa bodily harm by handling poisonous Palermo. snakes in religious services. “The theory of her lawsuit is that a “Tennessee,” he wrote, “has the right rose by any other name is not as sweet. to guard against the unnecessary crea- “Rose formed a partnership with tion of widows and orphans. Our state another Nashville lawyer, Denty and nation have an interest in having a Cheatham, practicing initially under the strong, healthy, robust, taxpaying citi- firm name of Palermo & Cheatham. By 14 TENNESSEE BAR JOURNAL

-support and bear. and by they further solidified their rela- haps they will ultimately remedy this o the resources and tionship by the exchange of marriage indiscretion... . or. We, therefore, vows. “We find nothing in the common law, id compelling state “Hach of the parties showed manifest the State or Federal Constitution or the a clear and present fairness to the other, and neither sug- statutory law which would require that gested that the other adopt his or her any individual automatically adopt the 0 sense dependent name. Rose continued to use the sur- name of the other spouse upon the event ler in which snakes name of Palermo; he the surname of of marriage... . not based upon the Cheatham. “Rose is right. Her name continues to ‘e. Irrespective of “When a child was born, Rose demon- be Rosary T. Palermo.” ‘at those who pub- strated her generosity and her consider- In the minds of many lawyers, though, 1 the presence of ation for her husband by agreeing that the all-time Henry classic was Metropoli- se who are present the child would bear his name. tan Government of Nashville and David- 2 guilty of creating son County v. Classic Cat II. That is a “All was well in the law firm of ic nuisance... nightclub which had its beer license ,” Palermo & Cheatham and in the domes- v. Palermo, revoked for allowing drunks to loiter 523 tic relation of Cheatham & Palermo, but he late justice about the place. Two soldiers came to in- alas, there came a day when Rose found ssertation Nashville to do “some serious drinking” on the herself between the two thorns of the s and ruled and fell unconscious while watching that a Davidson County election commission ake her husband’s naked women dance at the Classic Cat. and the Davidson County Registrar of it to. Henry discussed the situation as a man Elections. They insisted that Rose’s vefore he of experience and had this to say, died, I name be purged from its voter registra- nd brought up 584 SW2d 646: the tion list and that she be required to ellate court “About mid-afternoon they wended opin- register in the name of Cheatham. r jurisdictions. I their way to the Classic Cat II, where “This rankled Rose and she rose up in ty of compiling a they stayed several hours imbibing righteous rebellion to this blatant | volume, editing seven and sevens (Seagrams 7 Crown so that the book attempt to coerce her into changing her and 7 Up) ‘maybe 10 to 15.’ Thereafter name under the threat of disfranchising id understood by they left, bought a bottle of Seagrams V. quick interest in her.... QO. and settled down to some serious me if I had ever “The chancellor, being a man of drinking— ‘drinking out of the bottle.’ rmo decision. equity, erudition and_ enlightening, “Around 9:30 or 10 p.m. they returned was any except opined that Rose was right and refused to the Classic Cat and the seven and [ said. to decree that she be sacrificed upon the sevens. While he denies that his first the first one,” he altar of custom and convention. . . 10—15 drinks caused him to be , I think, rather ‘“The purgers perfected their appeal. ‘smashed,’ he admits that after his inter- » other judges The battle lines were drawn. Before the lude with Seagrams V. O. and after top- dignity of this bar of this court appeared the distin- ping it off with seven and sevens, he was v then.” guished advocate general of Tennessee drunk. ' handed me a to warn of the dire and disasterous “He says that every time he drinks , Which contains consequences of departure from the ‘hard liquor,’ he gets drunk or tries to. monopolistic right of a husband to im- .. . Of course, he denies that he has a ashville lawyer, press his own name upon his bride. In drinking problem; he says he just likes Rosary Theresa rambled Rose, represented by distin- to drink... . guished and delightful distaff members “We subject his conduct to the most wsuit is that a of the bar whose reasoning and logic liberal standard that has come to the s not as sweet. were extremely persuasive, if slightly attention of the author of this opinion: rtnership with tainted by the fact that they had bowed “Not drunk is he who from the floor wyer, Denty to custom and taken their husband’s Can rise alone and still drink more; tially under the name. However, a woman always enjoys But drunk is he, who prostrate lies, Cheatham. By the right to change her mind, and per- Without the power to drink or rise.

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“The soldier fails the test: He was and as night came, the protectors gath- drunk—openly, visibly, notoriously, ered on the courthouse lawn with their gloriously and uproariously drunk.” shotguns and rifles and the captain (Henry in a footnote said the verse passed out tear gas grenades. was from Thomas L. Peacock, “The Mis- Gov. Clement, Henry and Safety Com- fortunes of Elphin,” (1827), translated missioner Hilton Butler were monitoring from the Welsh.) the situation from the safety of the gov- No memoir of Joe Henry, however ernor’s mansion in Nashville. It was brief, would be complete without a getting meaner by the minute and finally mention of two other events. One is the Clement ordered the highway patrol to race riots at Clinton in 1956 and the take charge. Those of us at Clinton didn't other the late afternoon “coup d'etat,” as know this. We were in the courthouse we came to call it, when Henry swore in yard when the vigilantes released a tear Lamar Alexander as governor three gas barrage. The crowd tossed the gren- days before the planned inauguration, ades back into the courthouse yard and ousting from the governor’s one landed at my feet. An angry mob office and resulting in the Capitol being was about to charge the home guard placed under a police guard reminiscent troops when, like the cavalry in an old of storm trooper tactics. western movie, a convoy of highway A year later I went to Henry’s office patrol cars came screaming down the hill with a simple question, which has yet to into the business district, sirens blaring, be answered: why was it done? As usual red lights flashing. They circled the his answer was direct and to the point: courthouse like a wagon train and out- “All I did was administer the oath. It stepped Commander Greg O’Rear. He | was something which could have been had on a campaign hat and held a whistle done by any magistrate or notary public and nightstick. Behind him came a com- in the state. I was not passing on the pany of troopers carrying machineguns validity of what they were doing. I and riot guns at the ready. O’Rear blew happen to think that Ray Blanton was a his whistle as they advanced. Silence fell good governor. He was his own worst until it was possible to carry on a conver- enemy.” sation across the main street without He told Drue Smith about the same raising my voice. People were awed by time he would have voted for Blanton this display of force. had he rumfor a second term in 1978. I That was nothing compared to the am sure he would have. next day. Henry, Butler and Clement de- Clinton in September 1956 was a hot cided the patrol was needed on the high- bed of racial agitation. John Kasper and ways to handle the heavy traffic on other racists came to the Anderson Labor Day weekend. At 10 a.m. on a County seat to agitate against admitting Sunday morning, the National Guard a handful of black children to the Clinton moved in. Henry, wearing a shellacked public school. The incited a riot on Fri- helmet with two gleaming stars on the day evening with people marching up front, a pearl-handled .45 automatic and down the main street, stopping, strapped on a Gen. George Patton-style shaking and sometimes nearly overturn- belt and gleaming boots, rode into the ing automobiles hauling blacks on a public square, standing in a jeep and sur- Labor Day weekend holiday outing. For- veying the scene. Caesar had arrived. tunately no one was hurt. Saturday a Behind him stretched a line of tanks, kind of home guard was organized by a armored guns on mobile carriages, lum- former Army captain who claimed to bering supply trucks, jeeps and Guards- have extensive riot control experience in men with rifles. By afternoon O’Rear POW camps in Korea. He took command had turned the place over to Henry, who 16 TENNESSEE BAR JOURNAL the protectors gath- set up a command post. Trouble was at gards. He respected you more if you use lawn with their an end in Clinton for a while, though disagreed and even argued vigorously s and the captain after the Guard left, someone dynamited with him. If you agreed, the conversa- renades. the school and the Guard had to return. tion was likely to be over. ry and Safety Com- Henry’s last ambition, he told me in The last time I saw him was a couple of ler were monitoring one of our final conversations, was to days after the party. He and his brother e safety of the gov- write a judicial history of Tennessee. He Jim were enroute from the House Nashville. It was mentioned possible retirement from the Chamber, where the state Democratic e minute and finally court when his term expired and his executive committee was meeting, to a : highway patrol to desire to return to Pulaski. The book downtown hotel where the Tennessee ‘us at Clinton didn’t may never be written now, though it is a Bar Association was ending its annual -in the courthouse great loss to the history of Tennessee. convention. I was on my way to the com- ites released a tear He came to a retirement party for me mittee session when we met in a Legisla- vd tossed the gren- late in May. It had been arranged by two tive Plaza corridor. urthouse yard and of my closest friends and Henry directed “Travis,” he said bruskly. He always et. An angry mob it be held on a date when he would be called people by their last names, mili- > the home guard available. Eddie Jones, executive vice tary fashion. “What is the meaning of > cavalry in an old president of the Nashville Area Cham- this? We had a retirement party for you, mnvoy of highway ber of Commerce, introduced him. A few I made a speech bidding you farewell and ming down the hill days earlier Larry Daughtrey of the gave you a present. Here you are back ‘ict, sirens blaring, Tennessean had written a piece about working.” They circled the how the Henry court had imposed the “Joe,” I said, “someone has to stay yon train and out- state’s open meeting law on all other here and make sense out of that junk you Greg O’Rear. He boards and commissions but still held write over there in the Supreme Court.” and held a whistle closed conferences to decide cases. He laughed and went on his way. No 1 him came a com- “Judge Joe Henry,” Eddie said, “is one will ever be needed to interpret ying machineguns one of the few men to have served in all what Joe Henry said; he did it himself. sady. O’Rear blew three branches of state government— He had his enemies; his brusk manner anced. Silence fell the legislative, the executive and the irritated some. His treatment of women carry on a conver- judicial. He has a few remarks prepared was considerate and tender. “May fate in street without for him by Larry Daughtrey.” smile upon you,” was a favorite expres- ale were awed by i Joe began by reminding the au- sion to them. er er dience—Larry was present—that the Justice Joe W. Henry lives on in the ‘compared to the court on which his wife sits has closed memories of those of us who knew and r and Clement de- conferences. Then he recalled our friend- admired him. More importantly, he gave eded on the high- 5 ship and noted we had first become ac- new life to human dignity and protection heavy traffic on quainted 44 years earlier. He presented under the Tennessee Constitution. His At 10 a.m. on a me a beautiful, leather brief case to heart beats on in his opinions and in the National Guard which those who were present had con- history of the good he did for his state, ring a shellacked tributed. his country, his church and for the cause

ling stars on the He was an unusual man in many re- of justice. “ “ | .45 automatic rge Patton-style ‘Ss, rode into the in a jeep and sur- me

iar had arrived. —

a line of tanks, A, Be Be

: carriages, lum- a a eps and Guards- . ternoon O’Rear r to Henry, who ——

AR JOURNAL AUGUST 17