Hulbert Fellows Fairchild (1817–1866)

Hulbert F. Fairchild was a New York–born lawyer who moved to northeastern Arkansas to open a practice in the 1840s and found himself playing a precarious role as a trial judge and justice of the Arkansas Supreme Court during the calamitous days before and during the Civil War. Although Fairchild was put on the court by the secessionist governor, Elias N. Conway, and the court’s three justices had to flee Little Rock (Pulaski County) to the Confederate capital of Washington (Hempstead County) when Union forces controlled much of the state, Fairchild was privately uncomfortable with secession. While he capitulated to the secessionists and foes of emancipation on slavery matters before the court, his decisions resisted the curtailment of some civil rights at the hands of the Confederate government. He resigned from the Supreme Court at Washington in 1864 so that he could make his way safely as a non-Confederate through Union-occupied territory to be with his imperiled family in Batesville (Independence County).

Hulbert Fellows Fairchild was born on October 25, 1817, at New Lisbon, New York, to Reuben Walworth Fairchild and Mellona Fellows Fairchild. He was educated at the elite Williams College in Williamstown, Massachusetts, but left during his senior year before graduating. He studied law and was admitted to the bar in Louisville, Kentucky. In 1841, he married Clarissa Bulkley in Cuyahoga, Ohio.

He moved to Pocahontas (Randolph County) by 1842 and practiced law there for four years before moving to the larger city of Batesville. Among his noteworthy cases there was the 1854 case of Austin v. The State, in which Fairchild served as defense counsel for an enslaved man accused of murder. By 1855, the young lawyer had earned a reputation with the bar of the state, and, although he seemed to be a Whig, as were most Northerners who settled in the state, Governor Conway picked him to be the judge of the state’s first chancery court, which Conway had the Arkansas General Assembly create with the precise objective of shutting down the Real Estate Bank, the creation of which had roiled Arkansas politics since its creation soon after statehood. Conway wanted to put the hated bank into receivership. The governor had a lawsuit against the bank transferred from circuit court to Fairchild, the new judge. Fairchild first appointed his friend Charles Fenton Mercer Noland, a Whig, as receiver but soon had him step down, possibly to mollify the governor. Judge Fairchild eventually shuttered the bank. In 1859, he ran for a vacant seat on the Supreme Court and was defeated by Freeman W. Compton, who later would be his associate on the court.

In 1860, Supreme Court justice Henry Massie Rector resigned before taking office as governor and Governor Conway appointed Fairchild to the vacant seat until the new legislature could appoint one to serve until Rector’s term on the court ended. The legislature then appointed Justice Fairchild to finish the term. He was then elected to a full term in 1862.

Contemporary historians wrote glowing tributes to him after his death, telling of his humanity, fairness, and knowledge of and dedication to the law. One of them wrote: “In person, Judge Fairchild was of medium height, strongly built, with black hair and beard. He was a great student and a tireless worker, burning his lamp every night until long past midnight; and his studies were by no means confined to the law. He was pleasant in his manners, and of a kind and gentle disposition, but reserved rather than expansive. His mind was not oratorical or imaginative, but was clear, calm, analytical and strong. By the even balance of his intellect he was peculiarly suited to a place upon the bench. The opinions which he has left in our reports are models of strength and accuracy; and had he been permitted to hold the position longer he would have made for himself a great reputation. As it is, he will not be forgotten by the bar of his state, who feel, when they find one of his opinions, that they have found the law.”

Soon after he was sworn in as a justice, Arkansas seceded from the Union and joined the war against the United States, which went badly in Arkansas almost from the beginning. The changing divisions in the state influenced the flow of cases to the Supreme Court, altered the nature of them, and eventually affected the sanctuary where the court had to do its work—the southwestern corner of the state. The court of three justices produced no decisions for extended periods, especially after it was driven from Little Rock to Washington, north of the current city of Hope (Hempstead County). When Arkansas seceded, all judges had to take an oath of allegiance to the Confederacy and to the new constitution adopted by the legislature, while also forever renouncing allegiance to the United States or its constitution. Whatever ambivalence he may have felt, Fairchild signed the oath. A number of cases he took up involved slaves and free Blacks. In one of his first cases, Phebe v. Quillim (l860), the court’s three justices upheld a new statute that made it illegal to grant freedom to any slave. Fairchild wrote that “a change from the condition of servitude and protection, to that of being free negroes, is injurious to the community, and more unfortunate to the emancipated negro than to any one else.” Thus, he gave legal credence to the fiction, still abroad in the twenty-first century, that slavery was actually good for Black people.

He took a different view of a few other official acts of the government. By the middle of 1862, trial courts in Arkansas had almost ceased to function. The legislature passed an act in December of that year declaring that all lawsuits in either law or equity courts were to be put on hold until after the Confederacy and the United States had ratified a peace agreement. Fairchild, joined by another justice, ruled that the statute was unconstitutional on three grounds: It violated the constitution’s guarantee of a speedy trial to everyone charged with a crime; it impaired the obligation of contracts by delaying any remedy for breach of contracts; and it was a blatant attempt by the legislature to usurp judicial functions reserved by the constitution for courts.

In virtual solitude in what is now Historic Washington State Park, sometimes with one or the other of the justices, and with no communication with his wife and children in the opposite corner of the state, the deeply disturbed Fairchild resigned on November 25, 1863, to go back to his family. He wrote a letter to Governor Harris Flanagin assuring him that his resignation had nothing to do with politics but was entirely personal, related to his concern for his family, who was alone behind enemy lines and separated from neighbors by a stream that was often not fordable. The military objected to his resignation because his retiring behind enemy lines would have “an injurious moral effect upon the army and especially upon the preservation and increase of its members.” Once home, Fairchild traveled on to St. Louis in hopes of starting a law practice there, but it was prohibited by the new Missouri constitution—the so-called Drake Constitution—because to vote, teach, practice law, or hold any office in Missouri, he had take an oath that he had never sympathized in any way with the Confederacy.

He returned to Batesville and in 1865 took a voyage to Europe, for business or pleasure or both, and then settled in Memphis with his wife. In January of the next year, he started up the White River for Batesville but fell sick at Jacksonport (Jackson County) and died there on February 3, 1866. He is buried in Oakland Cemetery in Batesville. Three of his children preceded him in death.

For additional information:
Hempstead, Fay. Historical Review of Arkansas: Its Commerce, Industry and Modern Affairs, Vol. 1. Chicago: The Lewis Publishing Company, 1911.

Looney, Judge Jake. “Hulbert F. Fairchild, Chancellor and Justice.” Arkansas Lawyer 52, no. 1, (2017): 42.

Stafford, Logan Scott. “The Arkansas Supreme Court and the Civil War.” Journal of Southern Legal History 37 (1999): 37–114. Online at https://lawrepository.ualr.edu/faculty_scholarship/215/ (accessed March 1, 2023).

Ernest Dumas
Little Rock, Arkansas