J.W. Looney - Distinguishing the Righteous from the Roguish: The Arkansas Supreme Court, 1836–1874

If, as suggested by Bertram Wyatt-Brown, one function of the law in the antebellum era was to distinguish the righteous from the roguish, the role of the Arkansas Supreme Court in that effort would seem important.

A more extensive study, Morris S. Arnolds Unequal Laws unto a Savage Race: European Legal Traditions in Arkansas, 16861836, traces the legal transformation in Upper Louisiana from the French civilian legal system to a fully functioning common law adversarial system. It was, Arnold says, as much a social and political change as a legal one.

These studies, focused on the territorial period, are complemented by an article dealing specifically with the Arkansas

In the 1836 statehood constitution the legislature was given the authority to establish separate courts of chancery. Chancery courts had a long and important period of growth and development in England, providing equitable relief in cases where an adequate remedy could not be found in the common law. The American colonies and early states began to merge law and equity. This was the model followed by most states. In Arkansas in the early 1850s, interest increased in having a separate chancery court to deal with controversies surrounding the unraveling of the two state banks. It is this story that is related in two articles by Morton Gitelman.

An important work that provides biographical information is C. R. Stevensons Arkansas TerritoryState and Its Highest Courts. This work contains brief sketches of those who served on the Arkansas Supreme Court and is an invaluable starting point for information on the justices.

As can be noted, attention to legal developments in Arkansas during the antebellum period is limited. With the exception of the single article by Stafford dealing with slavery, no analysis has occurred relating to the work of the Arkansas Supreme Court during this period. Even the general works on history of the state ignore legal developments and the court, except for the infrequent mention in the context of political controversies. For example, Walter Lee Brown, in his masterful work on the life of Albert Pike,

More general works, like Jeannie M. Whayne, Thomas A. DeBlack, George Sabo III, and Morris S. Arnold, Arkansas: A Narrative History, S. Charles Bolton, Arkansas, 18001860: Remote and Restless, and John Gould Fletcher, Arkansas, mention legal developments only in the context of social and political changes and then only in passing. The Arkansas Supreme Court is seldom mentioned.

The work of the Arkansas Supreme Court is the focus of this study. This study is an attempt to place the court and the role it played in the center of the states early economic and political development. The cases, controversies, and conflicts dealt with by the court mirror the greater society. While a cursory review of individual cases can in no way be considered a scientific study or provide much statistical data for objective analysis, such a review does provide a series of snapshots of the evolution of the law and, in a real sense, the economic, social, and political changes underway in the state. It also provides a glimpse of some of the major actors involved in law and in the states development.

The approach of this study is simple; the task, laborious. The states highest court, like all such courts, has, from the beginning, issued opinions written by one of the justices that reflect the decision of at least a majority of the members of the court. These decisions were originally compiled by reporters, who at first had their names associated with the case reports. The court later adopted a uniform system of citation for what are now called the Arkansas Reports. From 1837 through 1861, following the outbreak of the Civil War, the court issued 2,126 written opinions. From 1862 to the end of Reconstruction in 1873, the court issued 615 more. Each has been examined. The Superior Court of the Territory of Arkansas issued 123 written opinions during its existence, andthese are analyzed as well to provide a foundation for the future work of the state court.

Those cases that appear to have some particular legal significance are noted, along with those of some economic, social, or political import. This selection process, arbitrary at best, was sometimes easy because of attention given to the case at the time. Some were selected because they provide a picture of societal attitude (or that of the court) relating to a particular controversy. Others were noted only for amusement due to curious facts, interesting parties, or unusual results.

A content analysis of the cases reveals not only the detectable changes, over time, of the type of cases before the court but also the emphasis the court placed on specific issues during each time period.

A review of the major cases, conflicts, and controversies within seven categories is included: (1) land titles, (2) banks and banking, (3) transportation, (4) slaves as property, (5) family law and family property, (6) debt and contract, and (7) criminal law and procedure. This is followed by a more general discussion of the court during the Civil War years and during Reconstruction. In addition to this review of the primary sources, secondary sources were consulted to place the actions of the court in the context of the social, economic, and political climate of the new state. These sources also provide valuable information relating to members of the Arkansas Supreme Court and the role they played in the development of the law.