The judiciary of Arkansas comprises men and women in government who exercise or have exercised various forms of judicial power of the state and territory of Arkansas. The purpose of the judiciary is to decide cases and controversies between parties that come before it.
Judicial power has best been defined by Justice Oliver Wendell Holmes Jr. in the case of Prentiss v. Atlantic Coast Line as that power which “declares and enforces liabilities as they stand on present or past facts and under existing laws.” Judicial power is distinguished from legislative power in that the latter looks forward and tries to remedy problems growing out of changing societal conditions. The Arkansas Supreme Court has adopted the Prentiss definition of “judicial power.”
French and Spanish Civil Law System
There were almost certainly those exercises of judicial power well prior to the advent of European civilization in Arkansas. However, with no record of their proceedings, the early customs and usages applied to jurisprudence are lost. For all practical purposes, the legal system of Arkansas began with the arrival of the Europeans.
The first known European-style legal system to be utilized in the area that would become the state of Arkansas was that of colonial French Louisiana. France was (and remains) a “civil law” jurisdiction. This is in contrast to England and the English-speaking nations, including the United States, which are primarily “common law” jurisdictions.
Civil law generally derives from the Roman system of jurisprudence established under the Roman Emperor Justinian I, the Corpus Juris Civilus. Also known as the Code Justinian, this system of law provided the template upon which the legal systems of most nations on the European continent, including, significantly for the Louisiana Territory, both France and Spain. The primary difference between civil law and common law is that with civil law, the laws are written down (codified) and grouped by subject matter into “codes.” Civil law courts do not normally take case law and apply it to new situations as they arise. Rather, a civil law judge must consult the code to determine the jurisprudence constante and then apply the statutes and principles derived from them. Civil law judges will often also have the combined function of judging the merits of and investigating the cases before them, similar to the functions of a modern administrative law judge in many areas.
In August 1686, Henri de Tonti and his small band of followers founded Arkansas Post near the confluence of the Arkansas, White, and Mississippi rivers. Claiming the land for “Louis the Great, King of France and Navarre,” the French introduced the civil law system to Arkansas. However, as there were few Europeans in the area at the time, this system of law had not much initial impact.
Until well into the 1700s, the various land grants and charters given by French rulers specified how the law was to be administered. Disputes were handled on the local level by military and civilian leaders. Truly significant cases, usually criminal, were handled by French officials in New Orleans. In 1712, a Superior Council was established at New Orleans with original and exclusive jurisdiction to decide any case of controversy in any place within French Louisiana, which stretched west of the Mississippi River from New Orleans to what is now the northern boundary of the continental United States.
France ceded Louisiana to Spain in 1762. As both were civil law jurisdictions, not much changed, beyond the respective native languages of the judges and lawyers involved. Later, Napoleon Bonaparte caused a revision of the system of law into what became the Code Napoleon, but this change had little or no practical effect on the Louisiana Territory in general or Arkansas in particular, as Spain had ceded Louisiana back to France a mere twenty days before the purchase of Louisiana by the United States, a common law jurisdiction.
Arkansas Territorial Law
Shortly after the Louisiana Purchase of 1803, the judicial functions for Arkansas were transferred to Indiana Territory. In 1804, Indiana’s territorial governor, William Henry Harrison, appointed three territorial judges to hold court in the district capital of St. Louis. Their jurisdiction extended into Arkansas. After the district was changed to the District of Louisiana, President Thomas Jefferson made three appointments to the Superior Court of the Louisiana Territory.
On March 2, 1819, President James Monroe approved the creation of a separate Arkansas Territory from what had been a district of Missouri Territory; two days later, he appointed the first three judges to the Arkansas Superior Court. The court met and heard cases in November 1819 and January 1820 at Arkansas Post. In June 1821, the Superior Court moved, along with the rest of the territorial government, to Little Rock (Pulaski County). The first session of court was held in a Baptist church. In 1828, Congress approved the addition of a fourth Superior Court Judge.
Once the Louisiana Purchase was made, President Jefferson moved quickly to establish English common law as the rule for decisions in the various territorial and state courts. He succeeded in eradicating the civil law in every part of the Purchase except for what became the state of Louisiana. Thus did Arkansas become a common law jurisdiction.
The common law differs from the civil law in that it relies primarily on judicial precedent in similar cases to make decisions rather than on a jurisprudence constante. This procedure is called the rule of stare decisis. Common law was said to be found, created, and refined by judges in that a decision in any pending case is generally decided upon principles governed by decisions in previous cases. Statutes also play a large role, but the basic judicial mindset is to utilize precedents to fill in broad areas of the law.
This reliance upon common law for rules of decision is sanctioned by the Arkansas Code and its predecessors by an explicit statute thatadopts the common law and parliamentary acts of England as they existed during the fourth year of King James II, and judges are instructed to apply these principles until modified or repealed by the Arkansas General Assembly.
The Arkansas Constitution: 1836–Present
The Arkansas Constitution of 1836, Article III, separated the powers of Arkansas government into three distinct departments, each of which was to be confined to a “separate body of magistracy.” It was specified that all judicial power of Arkansas would be confined to the judicial department of state government. The subsequent constitutions of 1861, 1864, 1868, and the current constitution of 1874 have all had this specific separation and delegation of judicial power to the judicial department.
Types of Courts
Originally, the Arkansas constitution of 1836, Article VI, Section 1, vested the judicial power of the state in “one Supreme Court, in Circuit Courts, in County Courts and in Justices of the Peace.” Circuit courts were courts of record, and justices of the peace were inferior courts, handling smaller matters. Additionally, there was a county court to decide such things as paternity and estate matters. Section 2 specified that the Supreme Court was an appellate court only, not a trial court.
Originally, under the English common law, one could bring a case before the King’s Bench only if the cause of action fit one of several so-called “royal writs,” which touched upon such issues as breach of contract, intentional wrongs inflicted upon another (torts), and negligent infliction of injury upon another (negligence); similarly, there were several common law felony writs such as manslaughter and theft, all of which originally carried the death penalty. Every subject had the right to appeal his civil case to the king but might not get a hearing if his cause of action did not fall within the pigeonhole of a particular writ. Yet there were cases that defied this system and seemed to fall between the cracks. The king appointed the highest church official in the realm, the Lord Chancellor, to hear these matters. The various chancellors applied doctrines of equity and fairness to the decisions they made, thus creating the distinction between law on one hand and equity on the other. Arkansas recognized this distinction but originally had a unitary system of trial courts to deal with it—namely, circuit courts. In a case at law, the Arkansas constitutions provided trial by jury in both civil and criminal cases under the listing of fundamental rights in Article II. Matters of equity were heard, however, by the bench sitting as trier of fact.
The constitution of 1861 specified for the first time the creation of “corporation courts” and probate courts. The Arkansas General Assembly was also granted leave to create courts of chancery based upon the principles of equity, if it so chose. The document makes clear that the circuit court would exercise both law and equity jurisdiction until such time as chancery courts were established.
Corporation courts were courts within the city limits of various towns and cities. Their jurisdiction, along with that of the justices of the peace, extended throughout the county where they sat. Eventually, these were renamed as “municipal courts.” The probate court was the first court of limited jurisdiction added by the constitution. Probate courts deal with matters relating to a deceased person’s estates and guardianships—and nothing else. They have their own separate rules of operation known as the “probate code” and continue to fulfill these functions in the present day.
There was no significant change to the judiciary’s role in the 1868 or, indeed, the 1874 constitution. By Act 166 of 1903, the Arkansas General Assembly exercised its prerogatives and established separate courts of chancery. These courts were allowed to hear matters of equity without a jury. They were also tasked with various statutory duties, notably the adjudication of divorce suits.
Recognizing the need for differing standards of adjudication for matters involving minors and parental rights, as well as criminal acts perpetrated by minors, the Arkansas General Assembly established yet another court, the juvenile court system, by Act 215 of 1911. Subsequently, in 1987, the juvenile court system was found by the Arkansas Supreme Court to be unconstitutional, and its powers were transferred to special divisions of chancery.
Other modifications in the court system came by way of amendment to the constitution of 1874. For example, under the old constitutional formula, anyone charged with a serious felony had to be charged by a grand jury—that is, a gathering of a group of citizens of the county charged with determining if a crime occurred and how it should be prosecuted. Amendment 21, however, allowed the prosecuting attorney the option of filing “criminal information” instead of grand jury indictments. The vast majority of criminal cases find their way into circuit court by this regime, although the option of calling a grand jury remains available.
Amendment 58, approved by the voters in 1978, again changed the legal landscape by creating the Arkansas Court of Appeals, “subject to the general superintending control of the Arkansas Supreme Court.” The purpose generally was to take some of the case burden off the Arkansas Supreme Court. The first opinions of the Arkansas Court of Appeals were issued on August 8, 1979, and released for publication on August 29, 1979. Subsequently, in 1995, Act II of the Extraordinary Session doubled the size of the Court of Appeals.
The biggest change in the Arkansas judiciary in recent years occurred in July 2001, when constitutional Amendment 80 took effect. Amendment 80 superseded much of Article VII, the duties of the various courts and judges as outlined in the Arkansas Constitution, and made sweeping changes in the Arkansas judiciary. Chief among these were the abolition of courts of chancery as separate entities. Numerous cases showed that separate chancery courts caused confusion and, in some cases, a denial of redress, because one could not be sure in many cases as to which system should hear the matters. Juvenile matters are currently heard by the circuit courts utilizing a set of rules specific to those cases.
Another significant change by Amendment 80 was the abolition of partisan election of judges. Judges must now run without reference to their party preferences in an effort toward fairness and impartiality on the bench.
In the fall term of 2009, the Arkansas Supreme Court became the first court in the nation to do away with published reports altogether and allow access to its opinions via the Internet, thus saving the taxpayers of Arkansas several thousand dollars per year in publication costs. Similarly, as of 2009, the filing and management of cases by means of a common automated case management system is being considered and implemented on a trial basis, putting Arkansas near the forefront of judicial innovation in the state courts.
For additional information:
Arkansas Judiciary. https://www.arcourts.gov/(accessed March 9, 2022).
Arnold, Morris. “The Arkansas Colonial Legal System.” UALR Law Journal 6 (1984): 391–423
Foster, Lynn. “Courts and Lawyers on the Arkansas Frontier.” UALR Law Review 26 (Spring 2004): 543–572.
David O. Bowden
Little Rock, Arkansas
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