The English Common Law: Still Weighty After All These Years1

King James the First has a translation of the Bible named after him, but what relevance does he have to your law practice? More than you might think.

Nestled in Title 1 of the Arkansas Code among statutes about the state flower, insect, beverage, musical instrument, and dinosaur;2 resting alongside mesmerizing provisions about the Arkansas Code Revision Commission;3 and hidden near laws declaring holidays, memorial days, and observances, including the much-celebrated John R. “Johnny” Cash Day,4 is this gem,5 Arkansas’ reception statute:

The common law of England, so far as it is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defects of the common law made prior to March 24, 1606, which are applicable to our own form of government, of a general nature and not local to that kingdom, and not inconsistent with the United States Constitution and the laws of the United States or the Arkansas Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state.6

In modern terms: The English common law in effect before March 24, 1606, and any statutes amending it before then are the law of Arkansas, unless the General Assembly has amended the common law.

You may think, “Arkansas became a state almost 200 years ago. Our courts and the General Assembly have obliterated the common law that existed in 1606. It is long gone, irrelevant.” Think again.

In this article, we review the historical background of the reception statute, survey the statute’s role in Arkansas law, and offer questions and comments regarding its relevance and to help in your practice.

I. The Historical Background of the Reception Statute

When the land that is now Arkansas was still part of the Missouri Territory, an 1816 territorial act read similarly to Ark. Code Ann. § 1-2-119, the current reception statute.7 The act declared that English common law (not French law) would govern the Missouri Territory.8 Rather than March 24, 1606 (the date in the current statute), the 1816 act set the date as “prior to the fourth year of James the First.”9 When Arkansas became a state, the first General Assembly passed a similar law.10

The use of 1606 (the fourth year of James the First) coincides with the grant of the Virginia colony’s charter.11 A 1972 Arkansas case mistakenly says the fourth year of James the First began a year later in 1607 and thus incorrectly ties the date to the founding of Jamestown.12 Other states pick different years, say, 1620 or 1776. For example, Rhode Island’s benchmark is the Declaration of Independence.14 As for the selection of March 24, it was the last day of the calendar year under the Julian calendar—the calendar England used in 1606.15

II. The Reception Statute in Arkansas: 1836–1947

Our courts wasted no time before relying on the reception statute. Four years into statehood, the Arkansas Supreme Court found that setoff was not part of English law in 1606; setoff had been introduced in England later.16 But the territorial legislature had passed a statute allowing setoff in 1818, and, as Watkins notes, the 1837 General Assembly had passed a similar statute.17 As the reception statute envisioned, the common law had been “altered … by the General Assembly.”

In another early case, the Arkansas Supreme Court looked to “the ancient common law” to hold that the failure to allege venue in a complaint involving a transitory action was not fatal.18

To the chagrin of future law-school students, another case adopted the Rule in Shelley’s Case, which made the cut by 200plus years, having arisen during the reign of Edward III in the 14th Century.19

In 1921, the Arkansas Supreme Court considered an 1820 Massachusetts case that cited English cases from 1216, 1416, and 1422 to find that a tenancy by the entirety in personal property could exist under the common law.20 early English cases, and the early writers on the common law, such as Blackstone, Kent and Bracton. Cases from other American states are also persuasive as to what was the common law.”22 The State tried to force a company to disclose confidential information so the State could pursue recovery of certain monies.23 The Arkansas Supreme Court concluded that the State did not have the power at common law to force production of the information: “To allow the claimed right of the sovereign … through such a ‘fishing expedition’ … would be far in excess of the common law doctrine of bona vacantia.”24

III. The Reception Statute in Arkansas: 1948–Present

Although the General Assembly has modified it through the years, the English common law remains relevant. In 1989, the Arkansas Supreme Court found that Arkansas had adopted the English Statute of Uses via the reception statute.25

In 1994, the Arkansas Supreme Court, noting that Arkansas adopted English common law unless amended or repealed referred to as ‘owners or lessees of the real property’ in the posting laws,” particularly Ark. Code Ann. § 18-11-403(b).26

But not all efforts to apply the English common law succeed. A criminal defendant argued that rape could not occur between spouses under the common law, contending that consent to all sexual relations was part of the marriage contract and that the General Assembly had never said otherwise.27 The Arkansas Supreme Court rejected that argument: when defining “rape,” the General Assembly said only that the victim must be “another person” and did not exclude spouses. The General Assembly had thus changed the common law.28

For more Arkansas cases applying the English common law, see a 1998 law review article by Stephen J. Maddex.29

And finally, the General Assembly has not forgotten about the reception statute. From a 2019 act: “A statement of the law in the American Law Institute’s Restatement of the Law, Liability Insurance does not constitute the public policy of this state if the statement of the law is inconsistent or in conflict with, or otherwise not addressed by: (1) A statute of the State of Arkansas; (2) The common law and statute law of England as adopted in Arkansas under § 1-2-119; or (3) Arkansas case law precedent.”30

IV. The Reception Statute’s Continued Relevance

The English common law remains relevant. Although the General Assembly has amended the common law, Arkansas lawyers would be remiss if they were to overlook the continued vitality of the English common law. To that end, I offer some questions and comments.

Do Arkansas courts have authority to modify the common law? The text of § 1-2119 suggests not, and the Eighth Circuit, summarizing Arkansas law in 1993, said, “A common law doctrine remains in effect in Arkansas unless the legislature enacts a statute that manifests the legislature’s clear intent to supersede the common law.”31 Four years later, however, the Arkansas Supreme Court took a different view, one of judicial prerogative: “[T]he Court, not the Legislature, should extirpate those [common-law] rules of decision which are admittedly unjust …. [A]s a part of our common-law doctrine, this Court is free to amend the common law.… [W]e are not bound to adhere to outmoded holdings pending legislative action.”32 But if the General Assembly has adopted the English common law as substantive law and only the General Assembly may amend it, what authority do Arkansas courts have to amend the common law?33

And if Arkansas courts lack authority to amend the common law, should cases that have modified the common law be overruled? Or does stare decisis mean the “new” common law remains? Take a 2008 dissent by then Judge (eventually Justice) Hart in which she expressed frustration over what she viewed as unauthorized changes to the common law: “the common law concerning real property remained for more than a century and a half much the same as it existed in England on March 24, 1606 .… However, in the last decade, particularly where the common law regarding acquiescence is concerned, it has morphed into an unrecognizable state, courtesy of the Arkansas Court of Appeals.”34 If Judge Hart was correct that the Court of Appeals had changed the common law, an attorney might argue that those decisions should be overruled as violating § 1-2-119. But even if the attorney were right, would stare decisis preclude overruling the decisions?

One case in which the Arkansas Supreme Court amended the common law is Jackson v. Cadillac Cowboy, Inc., imposing for the first time “common-law liability for the negligence of vendors licensed by the state who sell alcoholic beverages to intoxicated persons who, in turn, cause injury to third persons.”35 Although the court cited a 1989 statute that created a “high duty of care” for those who hold a license to sell alcoholic beverages, the court conceded, “We have no doubt that the high duty of care established by [the act] was essentially for regulatory purposes [rather than to impose liability].”36 The court imposed the new liability anyway, which leads to the question: if the General Assembly sets a duty of care for regulatory purposes, is that an amendment of the common law sufficient to impose a new form of liability for tort purposes?

Another issue is that Arkansas courts do not conclude that the General Assembly intended to override the common law absent clear intent to do so.37 Does that rule apply to all the common law or only to English common law that existed in 1606? An appellee recently argued that the clearintent standard applies only to common law that existed in 1606.38 The Court of Appeals did not address the argument,39 so the question remains.

If you still think English common law is irrelevant, consider that the United States Supreme Court decided a case last year in which the English common law factored significantly.40 And this year, the Arkansas General Assembly cited the reception statute and the common law to support protecting life in the womb.41

You might not want to take up tea and crumpets or stroll over to your local pub for fish and chips, but you might consider adding some English common law to your repertoire. Common-law commentaries by Blackstone and others are online thanks to modern technology that King James could never have imagined.42

Endnotes:

1. Apologies to Paul Simon, Still Crazy After All These Years, on Still Crazy After All These Years (Columbia 1975), and Karen Carpenter, Still Crazy After All These Years, on Karen Carpenter (A&M 1996).

2. In order, the apple blossom, honeybee, milk, fiddle, and Arkansaurus fridayi. Ark. Code Ann. §§ 1-4-109 (flower), -110 (insect), -112 (beverage), -113 (musical instrument), -135 (dinosaur).

3. Ark. Code Ann. §§ 1-2-301 to -308.

4. Ark. Code Ann. § 1-5-120 (February 26). Okay, Johnny Cash Day is not much celebrated. But it should be.

5. The official state gem, by the way, is the diamond. Ark. Code Ann. § 1-4-111(a).

6. Ark. Code Ann. § 1-2-119.

7. 1816 Mo. Laws 32. See also Cox v. Morrow, 14 Ark. 603, 613 (1854) (discussing the 1816 act).

8. 1816 Mo. Laws 32. See also Joseph Fred Benson, Reception of the Common Law in Missouri: Section 1.010 as Interpreted by the Supreme Court of Missouri, 67 Mo. L. Rev. 595, 596 (2002) (discussing the dispute over whether English or French law would govern the former Louisiana Territory, from which the Missouri Territory, and later Arkansas, was formed).

9. 1816 Mo. Laws 32. See also John J. Watkins, The Right to Trial by Jury in Arkansas after Merger of Law and Equity, 24 U. Ark. Little Rock L. Rev. 649, 704 n.128 (2002).

10. Ark. Rev. Stat. ch. 28, § 1 (1837).

11. Glasgow’s Lessee v. Smith, 1 Tenn. 144, 154 (1805); Scott Llewellyn & Brian Hawkins, Taking the English Right to Counsel Seriously in American Civil Gideon Litigation, 45 U. Mich. J. L. Reform 635, 639 n.20 (2012).

12. Grimmett v. State, 251 Ark. 270-A, 272, 476 S.W.2d 217, 220 (1972). See also Llewellyn & Hawkins, supra note 11, at 639 n.20 (discussing states that have misdated James the First’s fourth year).

13. Jones v. Clinton, 869 F. Supp. 690, 692 (E.D. Ark. 1994), aff’d, 520 U.S. 681 (1997).

14. R.I. Gen. Laws § 43-3-1.

15. Benson, supra note 8, at 601–02, citing Chronology and Dating, at http://www. medievalgenealogy.org.uk/guide/chron. shtml. England switched to the Gregorian calendar in 1752. Id.

16. Small v. Strong, 2 Ark. 198, 206 (1840).

17. Watkins, supra note 9, at 704 (citing Ark. Rev. Stat. ch. 139, § 1 (1837)).

18. Pullen v. Chase, 4 Ark. 210, 212–13 (1842).

19. Hardage v. Stroope, 58 Ark. 303, 307–08, 24 S.W. 490, 491 (1893). Hardage noted that the General Assembly had modified the rule in one respect: abolishing estates tail. Id at 310, 24 S.W. at 492.

20. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 13–14, 227 S.W. 1, 3 (1921) (citing Draper v. Jackson, 16 Mass. 480 (1820)).

21. State v. Phillips Petroleum Co., 212 Ark. 530, 533–39, 206 S.W.2d 771, 773–76 (1947).

22. Id. at 535, 206 S.W.2d at 774.

23. Id. at 539, 206 S.W.2d at 776.

24. Id.

25. Smith v. Wright, 300 Ark. 416, 423, 779

S.W.2d 177, 181 (1989).

26. Nelson v. State, 318 Ark. 146, 152, 883 S.W.2d 839, 842 (1994).

27. Jones v. State, 348 Ark. 619, 625, 74 S.W.3d 663, 667 (2002).

28. Id. at 626, 74 S.W.3d at 667.

29. Steven J. Maddex, Propst v. McNeill: Arkansas Landlord-Tenant Law, A Time for Change, 51 Ark. L. Rev. 575, 602 n.189 (1998).

30. 2019 Ark. Acts 742, § 1 (codified at Ark. Code Ann. § 23-60-112).

31. Lusby v. Union Pac. R.R., 4 F.3d 639, 642 (8th Cir. 1993).

32. Shannon v. Wilson, 329 Ark. 143, 151, 947 S.W.2d 349, 353 (1997).

33. Before you cry “Amendment 80,” nothing in Amendment 80, at first glance, gives the Arkansas Supreme Court authority to amend the common law. In fact, the Supreme Court has drawn a distinction based on Section 3 of Amendment 80 between procedural law as the Supreme Court’s purview and substantive law as the General Assembly’s purview. See, e.g., Broussard v. St. Edward Mercy Health Sys., 2012 Ark. 14, at 5–6, 386 S.W.3d 385, 389. Some may say that the judicial power inherently includes the right to change the common law, but that idea is disputed. Shannon suggests it does; Ark. Code Ann. § 1-2-119 and other cases cited in this article suggest it does not.

34. Boyser v. Shoemake, 101 Ark. App. 148, 154, 272 S.W.3d 139, 144 (2008) (Hart, J. dissenting) (citation omitted).

35. 37 Ark. 24, 26, 986 S.W.2d 410, 411 (1999).

36. Id. at 32, 986 S.W.2d at 414.

37. See, e.g., Roeder v. United States, 2014 Ark. 156, at 11–12, 432 S.W.3d 627, 634–35; Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 344, 984 S.W.2d 812, 816 (1999).

38. See Appellee’s Br. at 19–20 in Taylor Family Ltd. P’ship “B” v. XTO Energy, Inc., No. CV-20-704, 2021 WL 9794335 (Ark. App., March 2, 2021).

39. Taylor Family Ltd. P’ship “B” v. XTO Energy, Inc., 2022 Ark. App. 521, 658 S.W.3d 455.

40. Dobbs v. Jackson Women’s Health Org., 597 U.S. ___, 142 S. Ct. 2228, 2235–51, 2253–54 (2022); id. at 2324 (Breyer, J., Sotomayor, J., and Kagan, J., dissenting).

41. 2023 Ark. Acts 310, § 1(a).

42. For example, Blackstone’s commentaries are online courtesy of Yale Law School. https://avalon.law.yale.edu/subject_menus/ blackstone.asp. ■

McMath Woods is proud to announce its newest partners – Sarah C. Jewell and Tim Giattina. For seventy years, McMath Woods attorneys have proudly represented injured and wronged Arkansans. Sarah and Tim will help the firm continue its mission of personal attention and proven results.