TEXAS SUPREME COURT HISTORICAL SOCIETY

In Chapter 3 of The Texas Supreme Court (“A Functioning Judiciary”), Haley described how JohnHemphill preserved and expanded women’s rights to community property and homestead protection whileHemphill served as Chief Justice of the Supreme Court of Texas during the Republic:A second realm of law that presented Hemphill with an opportunity to preserve the Spanishinfluence in Texas law was in the rights of married women. Under the common law in effect in mostof the United States, wives were virtually the property of their husbands, with very little room tomaneuver into meaningful independent lives of their own. In Texas under Spain, wives had enjoyed thebenefits of community property: they entered a marriage with property of their own, and if the marriagedissolved they retained their original property, and moreover had a right to part of the wealth that theyhad created as a couple. Even as it adopted the common law as its default value, the Texas Congress,as it did with pleadings, carved out an exception in embracing the concept of community property. 2As Haley explains, Chief Justice Hemphill exercised his influence as a jurist and as a drafter of Texas’s 1845 stateconstitution to protect the elevated status women enjoyed under some aspects of Castilian Spanish law:2Ibid., 177-80.Mission Nuestra Señora de la Purisima Concepción de Acuña in San Antonio. Photo by David A. Furlow.It was inevitable that the two philosophies on the status of women would collide in Texas’sSupreme Court, and in Scott and Solomon v. Maynard, et ux., 3 Hemphill made clear his determinationthat counsel practicing before the Supreme Court had better acquire a working familiarity withSpanish law, because relationships entered into before Texas independence, whether contracts or3Dallam 548, 553 (Tex. 1843), cited in Haley, Texas Supreme Court, 39 and 261 nn. 31-32.23