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Abner Smith Lipscomb (1789-1856)

Associate Justice, Texas Supreme Court, 1846-1856

Abner Smith Lipscomb was born February 10, 1789 in the Abbeville District of South Carolina, where his parents had moved from Virginia. Like Thomas Jefferson Rusk, Lipscomb had close ties with John C. Calhoun, whose various political offices included Secretary of War, Secretary of State, U.S. Senator, and Vice-President of the United States. After taking his apprenticeship in Calhoun's Abbeville law office, Lipscomb was admitted to the bar in 1811 and began practicing law in the town of St. Stephens in the eastern part of Mississippi Territory, now part of Alabama.

When the War of 1812 broke out Lipscomb joined the Southern Army, fighting against Indians, probably the Muscogee, or "Upper Creek," who allied themselves with the British in their final attempt to resist white encroachment. Following the war he was elected to the Territorial Legislature of Mississippi. In 1819, when Alabama became a state, he was appointed a circuit judge, which automatically made him a justice of the Alabama Supreme Court. He was appointed chief justice in 1823, and held that post until his resignation in 1835.

Following his resignation from the Alabama court, Lipscomb practiced law in Mobile and in 1838 was elected to the Alabama state legislature, where he became chairman of the judiciary committee. He resigned the position the following year, and moved to Texas, setting up a successful law practice in Washington County.

In Texas Lipscomb was again called upon for public service, when President Mirabeau Lamar appointed him Secretary of State of the Republic. In that position he was a strong advocate of statehood. He was a member of the Convention of 1845, where he introduced the resolutions accepting annexation to the United States and helped to form the constitution. His chief contributions were said to have been in the construction of homestead exemptions and marital rights.

When the Texas constitution was adopted in 1846, Lipscomb was appointed by Gov. Henderson to the Texas Supreme Court and was then elected to the position in 1851 and 1856, serving as associate justice for eleven years. He died in Austin on November 30, 1856.

Notable opinions

Warnell v. Finch, 15 Texas reports 163 (Tex. 1855) (holding provision of Republic's Constitution allowing alien heirs of fallen soldiers to hold land directly granted by government was prospective and thus did not embrace plaintiff heir in present case since decedent died previous to adoption of the provision).

Bryant v. Kelton, 1 Texas reports 415 (Tex. 1846) (holding no per se fraud upon vender retention of sold property, although noting a deep historical legal split on the issue. Reversed in favor of plaintiff due to error in judge's charge that any valuable consideration sufficed to rebut fraud presumption).

Jones v. State, 13 Texas reports 168 (Tex. 1854) (holding bailiff's provision of alcohol for jury consumption at consideration stage of trial reversible error in murder conviction. Also held as judge error permitting jury to pass on case against nominal defendant before other defendants opened evidence. Denied defendant's request for rule that side with greater number of witnesses triumphs because rule would, "substitute a physical weight for the moral influence by which the jury should be governed." Declined as well defendant's request for rule allowing confession to be destroyed by denial, since "it would allow the accused to make evidence in his own defense).

Sources

Davenport, Jewette Harbert. The History of the Supreme Court of the State of Texas 30 (Austin, Texas: Southern Law Book Publishers, 1917).

Highsmith, Mary J. Lipscomb, Abner Smith, Handbook of Texas Online (June 5, 2006). http://www.tshaonline.org/handbook/online/articles/LL/fli14.html

Lynch, James Daniel. The Bench and Bar of Texas 85 (St. Louis, Missouri: Nixon-Jones Printing Co., 1885).

Memoir, 19 Texas reports iii (1858).

Extended bibliography

Fulmore, Zachary Taylor. The History and Geography of Texas as Told in County Names 201 (Austin, Texas: E. L. Steck, 1915).

Speer, Ocie. Texas Jurists 30 (Austin, Texas: the author, 1936).

Additional information available in Southwestern Historical Quarterly as follow:
Volume 1, page 103
Volume 2, page 144
Volume 5, page 53
Volume 18, page 387
Volume 19, page 162
Volume 20, page 229, 366
Volume 24, page 134, 135
Volume 25, page 32, 35, 48
Volume 40, page 117, 118
Volume 41, page 104n, 105
Volume 43, page 521
Volume 44, page 369
Volume 49, page 273, 378, 381n
Volume 53, page 396
Volume 57, page 27, 319, 446, 451
Volume 60, page 17
Volume 72, page 329
Volume 73, page 182
Volume 74, page 334
Volume 75, page 83

Memoir, 19 Texas reports iii (1858).