John Hemphill (1803-1862) was the first significant Chief Justice of Texas. He served both as Chief Justice of the Supreme Court of the Republic of Texas and later, after Texas was incorporated into the Union, as the Chief Justice of the Texas State Supreme Court.
Years in South Carolina
John Hemphill, born on December 18, 1803, in Chester District, South Carolina, near the small town of Blackstock, was the fifth child of John and Jane (Lind) Hemphill. His father immigrated to the United States from Londonderry County, Northern Ireland, in 1783. He attended Dickinson College in Pennsylvania, and, upon graduating, relocated to South Carolina, where he became a licensed minister of the Associate Reformed Church. Hemphill's mother, also of Scotch-Irish descent, was a native of Pennsylvania and the daughter of an Associate Reformed Church minister. She was related to Robert Fulton, the inventor. After his mother's death when Hemphill was still a young child, he was reared by his father and, after 1811, his stepmother, Mary Nixon.
Hemphill attended the local one-room school and then enrolled in Monticello Academy. After teaching school for one year, he entered Jefferson College (now Washington and Jefferson College) in Pennsylvania in 1823, graduating second in his class in 1825. Returning to South Carolina, he taught in classical academies in the Abbeville and Richland districts for the several years. Turning his attention to the legal profession, in 1829 he began his law studies under the tutelage of David J. McCord, a prominent attorney in Columbia, South Carolina. After being admitted to practice in the court of common pleas in November 1829, Hemphill opened a law office in Sumter district and began his practice. In 1831 he was admitted to practice in the equity courts.
In Sumter the young and zealous Hemphill became embroiled in the growing debate over slavery and nullification (i.e., the right of a state to nullify, or reject, federal laws). A staunch supporter of both slavery and nullification, Hemphill submitted regular essays to the local newspaper, the Sumter Gazette, expressing his views. In 1832 he engaged in a two-month debate with a reporter that was played out in the newspapers. Hostilities between the two men escalated into a brawl outside the Sumter courthouse. Hemphill eventually became editor of the Gazette and used his editorial power to spur the proslavery and nullification efforts. His opinions drew strong opposition, and in 1833 he actually entered into a duel with a local merchant over their differences. Played out with smooth-bore pistols, Hemphill was wounded in his hand, receiving a scar that stayed with him the remainder of his life.
Hemphill's law practice was interrupted in the beginning of 1836 when he volunteered to assist in putting down an insurrection of the Seminole Indians in Florida. He attempted to gather a company of volunteers from Sumter County, but failing to do so, he traveled to Columbia and enlisted as a second lieutenant. During his military expedition to Florida, Hemphill, like many of his comrades, contracted malaria, which necessitated his return to South Carolina after a just few months in ill health. Little else is known of Hemphill's seven years as a lawyer in Sumter County. His name appears in official court records in 1836 and 1838 as counsel in cases appealed to the court of last of resort.
In the summer of 1838 Hemphill moved to Texas, which at the time was the independent Republic of Texas. In September of the same year he was licensed to practice and subsequently established a law practice in the small, old town of Washington-on-the-Brazos in Washington County. Sometime before May 3, 1839, Hemphill relocated to the town of Bastrop, outside of Austin. Keenly aware of the importance of the Spanish language and Spanish civil law, which was still commonly practiced in Texas, Hemphill, according to legend, went into seclusion for a time while he mastered the language and the law books. His studies proved to be an important asset in his career and earned his significant respect for his learning and intellect.
Having declined a previous offer from President Mirabeau B. Lamar to become the Texas Secretary of the Treasury, on January 20, 1840, Hemphill was elected by the Texas Congress to serve as district judge of the Republic's fourth judicial district. According to the Texas constitution adopted in 1836, district judges filled the role as Associate-Justices on the Republic's Supreme Court. Therefore, Hemphill presided in district court as a trial judge and served as a member of the Supreme Court. Little is known of Hemphill's short term as a district judge, except for an oft-recorded incident that happened in San Antonio on March 19, 1840. Comanche chiefs had taken hostage a number of Texans. In response the military invited the chiefs to exchange the hostages for supplies and selected the council house as the location for the exchange. Negotiations took place with Hemphill as a mere bystander. When the chiefs only produced one hostage, however, the military decided to hold the chiefs in exchange for the remaining hostages. Violence quickly erupted, and Hemphill found himself in the midst of it.
The official report, registered by Colonel McLeod as recorded in David McWhirter's The Legal 100, stated: "John Hemphill … assailed in the council house by a chief and slightly wounded, felt reluctantly compelled (as he remarked to the writer afterwards) to disembowel his assailant with his bowie knife, but declared that he did so under a sense of duty, while he had no personal acquaintance with nor personal ill-will towards his antagonist." The episode sheds light on the nature of the dangerous and unsettled Texas territory. In the aftermath of the event, Hemphill was among the party that returned the sole remitted hostage, a young girl, to her family near Gonzales, Texas.
Became Chief Justice
On December 5, 1840, the Texas Congress elected Hemphill as Chief Justice. The first candidate, James Collingsworth, was elected in 1836, but died before the court ever convened. At the congressional session, Thomas J. Rusk was selected to replace Collingsworth, but he only served for a brief time before resigning in late 1840. As a result, Hemphill, who retained his place on the bench for eighteen years, is often considered the first chief justice of Texas. Hemphill's bid for the position was not unopposed; also on the ballot was James Webb, a former Attorney General. In a joint vote of Congress, the two candidates split the Senate with seven votes each, but Hemphill received twenty-one votes in the House of Representatives to Webb's nineteen. A false rumor circulating about Webb may have aided his defeat, but Hemphill, whose dignity was beyond reproach, was not associated with any plot to upend his opponent.
Despite his important position as Chief Justice, records indicate that Hemphill did not receive a regular salary. In at least two memorandums to Congress, Hemphill requested payment for his services and noted that he had exhausted his personal funds and even incurred debts in order to sustain the functions of the Supreme Court. In such a correspondence with Congress, Hemphill asked that he be paid his salary as district judge from March 20 to December 5, 1840, in the amount of $2,125 and as Chief Justice from December 5 to January 3, 1842, in the amount of $3,250.
Hemphill had not been fulfilling his new duties long before being interrupted by an eruption in the volatile relationship between Texas and Mexico. Mexico, still refusing to concede to Texas's independence and fearing the Republic's growing relationship with the United States, invaded in 1842. General Vasquez moved Mexican troops into the Republic and overtook San Antonio, causing a general panic in nearby Austin. The Congress was moved to Washington-on-the-Brazos and activity came to a near halt. Court records show that the Supreme Court did not convene between January 1942 and June 1843. During this extended break, Hemphill joined General Somervell's expedition to the Rio Grande to counter the Mexican attack, serving as Adjunct General. Upon arriving at the Texas-Mexico border, the mission was abandoned as it was decided the company lacked sufficient numbers to stage an invasion across the river.
In 1843 and 1844 Hemphill was encouraged to run for the presidency; however, both times he declined due to poor health. In 1845 Hemphill served as the Washington county delegate to the annexation convention, which convened on July 4. Hemphill, a strong proponent of Texas statehood, was appointed chair of the Judiciary Committee. On July 11 he presented the convention with a draft of the judiciary section of the new constitution. His plan, which called for the Supreme Court to consist of three judges appointed by the government and confirmed by the senate, was adopted with little debate, although he did fail to stop the passage of an amendment that allowed for jury trials in equity cases, a measure he opposed. Once Texas became a state, Hemphill was appointed by the Governor Lubbock as Chief Justice of the State Supreme Court and confirmed by unanimous vote in the Senate. Abner S. Lipscomb and Royall T. Wheeler were appointed to the two remaining seats.
The John Marshall of Texas
Hemphill has been called the John Marshall of Texas because, like U.S. Chief Justice Marshall, Hemphill was instrumental in laying the foundation for the judiciary system in its infancy. As James P. Hart noted in his essay "John Hemphill—Chief Justice of Texas:" "Living conditions in Texas generally and particularly in Austin were primitive; there was constant danger from Indian raids and Mexican invasions. Access to texts and decisions of other courts was limited, even in situations where helpful precedents might be expected to exist. In such an atmosphere and under such handicaps, it is truly remarkable that Hemphill and his colleagues turned out opinions whose general excellence has probably never been equaled by any other court in Texas history." Hemphill considered Spanish civil law to be superior to the common law standards adopted by Texas. As both a republic and a state, Texas adhered to common law in most matters, except issues of property, in which case Spanish property laws prevailed. Hemphill consistently referred to Spanish law in his opinions, drew on its precedents, and often made his comments in Spanish.
As a proponent of civil law, Hemphill, who never married, was a strong advocate for women's property rights. Hart reprints a portion of Hemphill's opinion in Wood v. Wheeler, brought before the Supreme Court in 1851: "Husband and wife are not one under our laws. The existence of a wife is not merged in that of her husband. Most certainly is this true, so far as the rights of property are concerned; they are distinct persons as to their estates. … They are co-equals in life; and at death the survivor, whether husband or wife, remains head of the family." Hemphill's opinions formed much of the common property system of Texas, which allowed married women to own property in their own names and gave a half-interest to wives in all property purchased as a married couple. Hemphill also continually advanced Spanish civil law principles in matters of debt, expanding the homestead exemption so that families were protected from forced sale of their property to settle a debt. He further liberalized the provision by applying it to all persons, not just heads of families and Texas citizens.
Final Years: Secession
Hemphill served as Chief Justice for eighteen years until he resigned at the end of 1847 when the Texas legislature selected him to replace Sam Houston in the U.S. Senate. He served in the Senate from 1859 to 1861. In that year he joined thirteen other Senators who met on January 6 to call for the secession of the Southern states from the Union. Expelled from the Senate in July for his support of secession, he traveled to Montgomery, Alabama, to serve as a Texas delegate to the Confederate constitutional convention where he helped formulate the judicial foundation for the Confederacy. During the second half of 1861, he turned down an offer to become a Confederate district judge for Texas, was elected as a member of the Confederate Congress, and lost a race for the Confederate Senate. He was fulfilling his duties in the Confederate Congress, which met in Richmond, Virginia, when he contracted pneumonia. He died on January 4, 1862; he was buried on February 10 in Austin at the Texas State Cemetery.
Garraty, John A., and Mark C. Carnes, eds. American National Biography. Oxford University Press, 1999.
Jacob, Kathryn Allamong, and Bruce A. Ragsdale, eds., Biographical Dictionary of the United States Congress, 1774-1989, Joint Committee on Printing, 1989.
Lewis, William Draper. Great American Lawyers, The John C. Winston Company, 1908
McWhirter, Darien A. The Legal 100: A Ranking of the Individuals Who Have Most Influenced the Law, Carol Publishing Group, 1998.
Hart, James P. "John Hemphill—Chief Justice of Texas." Southwestern Law Journal 3 (fall 1949): pp. 395-415.
"Hemphill, John." The Handbook of Texas Online. Available from http: //www.tsha.utexas.edu/handbook/online/articles/view/HH/fhe13.html .
"Hemphill, John." Hemphill County Texas. Available from http: //www.rootsweb.com/~txhemphi.
"John Hemphill." State Cemetery of Texas, Austin. Available from http: //www.cemetery.state.tx.us/pub/user-form.asp?step=1&pers-id=59.