all personal chattles of the wife (are) vested in the husband ... during the coverture. While single. she could have sold and conveyed the slave to any other person. and by the marriage she conveyed to her husband." Both the sale and Lindsay's title were valid. In 1884. in Walker v. lessup" the court determined that Mrs. Walker. who had purchased land on credit for $1.280 and was later sued because the term of the credit had expired and nothing had been paid. was not in the first place able as a married woman to buy real estate on credit and bind herself personally for its payment. None of the laws passed recently had enlarged the wife's ability to contract generally. the court said. None of these cases is outstanding in itself. but together they all do relate to the common law as the common law applied to married women in the 19th Century. The common law simply relieved married
women
of
significant
rights. In a case similar to those described above. it is clear that even the justice involved questioned the justice of the law." but it is also clear that Arkansas courts in the 19th century acted to uphold tradition and to protect the established body of common law. Inequality before the law rested largely undisturbed. Indeed as late as 1912. married women were for some purposes still legally classified with children and incompetents. 2 •
The problems which these cases illustrate are no longer with us. They have been remedied by statute and constitution over a long period of years. But I do think it's worth remembering that these problems were felt by a large group of people and that reform of the law was a painfully slow process. The last case for reform concerns an issue which was never heard in any Arkansas court. but which affected countless lawyers from Arkansas and other Southern states after the Civil War. Arkansas attorney. Augustus Garland. found himself disqualified from appearing before any Federal Court because he had served in the Confederate Congress. The
U.S. Congress had passed laws requiring all government officers as well as attorneys to swear that they had never supported a government hostile to the U.S. This oath was required of attorneys in
order for them to practice in any U.S. Court and to falsely take the oath would be to perjure themselves. D Garland prepared an argument to present to the U.S. Supreme Court challenging the constitutionality of the Acts and making other points." Garland won his case24 by one vote. ~ It was a landmark case because it was seen to vindicate the rights of lawyers against legislative encroachments. it re-instated Garland. countless other southern lawyers. and brought about instant reform in the process.
Finally. the mystery case; the only case of the late 20th Century we have to consider . .. and it,
not a real case at all. Yet it has been much cited unofficially and has been used in Appellate ludges Seminars at New York University." This is. of course. the noted 1968. April I. opinion of lustice George Rose Smith in the suit of I. R. Poisson against Etienne d·Avril.~ You will recall that Poisson sued d'Avriito enforce an oral agreement by which d'Avrii sold Poisson 40 acres of bottom land in the Hot Springs Mountains. O'Avrii maintained that under the 1838 Statute of Frauds an oral contract for sale of land cannot be enforced. Poisson countered that the Omnibus Repealer of 1945. which repealed "all laws and parts of laws." had nullified the Statue of Frauds. The question then became what is the Law? Is it statute only or common law plus the digest of statues. annotated? The author of the opinion determined that it was beyond belief that the General Assembly would do away with Judge-made law saying "it is essential that the common law be preserved if we are to avoid anarchy. The statutory law is not equally essential." Thus the repealer was seen to apply only to statues. "leaving all judge-made law unmonkeyed with." The case itself called into question the nature of law and legislation generally. If we have reached the point of questioning the nature of law and
legislation. then that might call into question all that has been said thus far today. If we should throw out statutory law would we resurrect
married
women's
"rights" under common law? Can we imagine that such a situation
could arise at the Federal level? If so. what about the Little Rock land claims? Would any be legitimate? How could the court decide? Indeed. we might all be consumed wi th the burning question of who really does own Little Rock! The implications of all of this are staggering and frightening to contemplate. Having raised this weighty issue and having considered some Arkansas cases of note
and near note. I shall on that note conclude. leaving both judgemade and statutory laws unmonkeyed with. FOOTNOTES
Ira Don Richards. Story of a Rivertown. Little Rock in the Nineteenth Century ("·n.p.... 1969). pp. 6-7. 2 Margaret Ross. Arkansas Gazette. The I
Early Years 1819-1866 (Lillie Rock: Arkansas Gazette Foundation. 1969). p.
36. Ross, Arkansas Gazette. p. 37. 4 Russell v. Wheeler, Hemp. 3 (Super. Ct. of Ark. Terr. 1821). ~ Dallas T. Herndon. Why Little Rock Was Born (Little Rock. 1933). p. 141. & Herndon. Why Little Rock Was Born. p. 139-140. Herndon, for one, questions the accuracy of this colorful description. 7 Herndon. Why Little Rock Was Born. p. 3
152. Richards. Story of a River Town. p. 10. , Little Rock, Arkansas Gazette. Oct. 5. 8
t842. 10 II
Ross, Arkansas Gazette. p. 186. Little Rock. Arkansas Gazette Oct. 12.
t842. 14
Ross. Arkansas Gazette p. 186. Ross. Arkansas Gazette p. 186. Little Rock, Arkansas Gazette Aug. 21.
I~
Little Rock, Arkansas Gazette. Aug. 21,
16
Little Rock. Arkansas Gazette. Oct. 12.
17
Benjamin Moores and Ann Moores, his wife v. Lawrence F. Carter. Frederick Thomas, and William Clark, Hemp. (Super. Cl. of Ark. Terr. 1828). Lindsay v. Harrison. 8 Ark. 302. Walker v. Jessup, 43 Ark. 163. Harrison v. Trader and Wife. 27 Ark. 288. Deane v. Moore, 105 Ark. 309: lSI SW
12 13
t844. 1844. 1842.
18 I' :III 21
286. 22
Augustus Garland, "Argument in the United States Supreme Court, on His Application to be Permitted to Practice in Such Court Without Taking the Oath, As Prescribed by Act 01 Congress of July 2.
:l3
Garland, "Argument," p. 5. Garland, "Argument," p. 3-23. Augustus H. Garland. Experience in the Supreme Court of the United Stales, With Some Reflections and Suggestions as to that Tribunal (Wash .. D.C. 1898), p.
1862. and January 24. 1865." 08651. 24
25
p.
4.
20. 26
27
Robert A. Leflar, "Letter," Jan. 10, 1984. J. R. Poisson v. Etienne d'Avril. 244 Ark.
478·A.
Aprit 1985/Arkansas Lawyer/77