4.1.3 The Mountain South (1770-1831): Outposts of the American Legal Empire

Small v. Strong – Arkansas, 1840 (2 Ark. 98)

  • With the Louisiana Purchase (1803), the United States acquired territory in which the civil law system of continental Europe prevailed, not Anglo-American common law.  That changed quickly in some parts of the territory but not so quickly in other parts. 
  • The lower Louisiana territory (now the state of Louisiana), which had a substantial population and a well-developed economy in 1803, resisted American attempts to replace civil law which is still the basis for much of Louisiana’s legal system (see § ___).  In more remote, thinly-populated upper Louisiana, the common law conquered more quickly but traces of civil law survived for decades.
  • On the eve of the Purchase, upper Louisiana settlements consisted mainly of French merchants and French and Spanish settlers, governed by local military commanders who took instruction from New Orleans when needed.  Local law consisted of a mix of French codes including the Coutume de Paris (Parisian local law which prevailed in much of France); the Code Noir for slaves (first promulgated by Louis XIV in 1685); and Spanish law, notably the 17th-century Recopiliacion de las Indias; and informal local rules devised by local commanders to meet local conditions.
  • Americans who settled Missouri and Arkansas in the 1810s and 1820s had little use for civil law and explicitly and actively worked to replace it with American law.  This was particularly true of the Code Noir, which extended more rights to slaves and free blacks than did American slave codes. 
  • Eradication of civil law proved more difficult than the Americans expected, particularly with respect to land titles.  Missouri’s territorial legislature formally established common law as the prevailing system in 1816 [ck], but American officials concluded that abolishing property rights based on French and Spanish land grants would create political and legal chaos.  Missouri and Arkansas territorial and state courts universally applied French and Spanish property law to decide claims arising out of such grants,  but in Small, Arkansas’ supreme court signaled that civil law would be confined and eventually eradicated in that part of the United States. 

File:A new map of ye north parts of America claimed by France under ye names of Louisiana, Mississipi, Canada & new France with the adjooyning territories of England & Spain (4071874239).jpg

Map of French North America, 1732 - courtesy Wikimedia Commons

File:William Clark.jpg

William Clark, explorer and first governor of Upper Louisiana Territory (1810) (artist:  Thomas Sully) - courtesy Wikimedia Commons

 “We are endeavouring to establish the empire of the laws.” – Edward Bates (Missouri), ____

 “Ignorant of all the principles of our Government, they [French settlers] view things with an evil eye.” - __ (Missouri), ____

 “It is our wish to assimilate by insensible means, the habits and customs of the American and French inhabitants.” –Judge John Coburn (Louisiana Territory, including Arkansas) (1807)

 “Instead of preserving the civil law, as it existed in Louisiana … the Legislature … have entirely discarded the civil law, and adopted in its stead the common law.”  - Chief Justice Daniel Ringo, in Small