Saturday, December 3, 2016

A Dollar's Worth of Arkansas Legal History

While my husband finished his coffee at Heidi's Ugly Cakes in Norfork, Arkansas, I walked down the street, passing by three ferocious dachshunds at one house, to the Terrapin Trading Company, a crafts and used bookstore. All of the books were on sale for $1.00 and I bought a history of colonial Arkansas focused on the administration of civil law during the French and Spanish period before Arkansas was included in Thomas Jefferson's Louisiana Purchase: Unequal Laws Unto a Savage Race: European Legal Traditions in Arkansas, 1686-1836 by Morris S. Arnold, published by the University of Arkansas Press in 1985. I finished the book while we were on vacation and found it fascinating.

Morris S. Arnold is a scholar, author, attorney, and marvelous writer. He describes how French law, specifically the Custom of Paris, was administered in colonial Arkansas by the commandants of the military installation at the Arkansas Post. This was civil law as opposed to English common law, mostly concerned with contracts, wills, and administrative justice enforcing such arrangements.

As the more remote part of the French Louisiana territory, Arkansas never quite developed as King Louis XIV and his successors hoped. There were some bourgeois and even noble pioneers, but the area was mostly inhabited by hunters and trappers, who had little regard for authority, either civil or religious. In fact, one of the Jesuits sent to serve in the area left because of the demonstrated irreligious and even blasphemous attitudes of its denizens. Although the Jesuits did not establish a very successful mission in the Arkansas Post, the Anglo-American colonists feared the influence of the Jesuits on the local Native American population, because they had seen how well the Jesuits, in other areas, had evangelized the Indians. In this case, neither the French, nor the Spanish ever invested the necessary effort to assist the growth of Catholicism in Arkansas--never building or consecrating a building as a chapel, for example, so that the Jesuit or sometimes Capuchin missionaries sent there were never able to make a firm foundation.

First the French and then the Spanish administered justice in the Louisiana Territory. Arnold really misses an opportunity when he mentions the first Spanish representative, named Alexandro O'Reilly. Oh really, O'Reilly? I knew that Irish surname meant he must have belonged to a family that fled Ireland in the Flight of the Earls. Sure enough, he was.

The last part of the book is about the conflict between French civil law and American/England common law once Jefferson purchased Louisiana. The French inhabitants did not want to adopt elements of the English Common Law like trial by jury or vive voce evidence, etc. They began to "drop out" of the legal system as established by the United States, and even language came between the two groups. The French were in the minority and the new Americans in the Louisiana Territory looked upon them as "backward European savages"! Arnold states that the Americans were rather glad the French opted to drop out of the new civil society and administration. The French mostly dealt with legal issues within their communities, looking to a "village elder" to make decisions.

Arnold is an expressive and impressive author. I enjoyed his clarity of thought and his way of demonstrating how the details of legal contracts and administrative processes exemplified the cultural and historic background of the French/Spanish colonial era in Arkansas. He makes the distinction between civil law and common law clear to the nonspecialist. I was just surprised that he let an opportunity like a man named O'Reilly representing the King of Spain to go without taking advantage of it. I look forward to  reading another of his books, Colonial Arkansas, 1686-1804: A Cultural and Social History. Perhaps he redressed this lapse in that book, of which I've ordered a copy--it will be more than a dollar's worth of history, however!

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