PRIZE ESSAY NUMBER. i i ~ JUSTE, 1904 IY6L, XIII. HO. i GETTYSBURG COLLEGE GETTYSBURG, PA. i w. V N. C. UARBKMENH, OCTTTOBUflS II n w i HELP THOSE WHO HELP US. The Intercollegiate Bureau of Academic Costume. Chartered igoz. Cottrell & Leonrard Albany, N. Y. AAAAAAAAAAAAAAAAAAAAAAAA WWWWWWWWWWWW Makers of Caps, Gowns, Hoods AAAAAAAAAAAAAAAAAAAAAAAA A. B. BLACK, Gettysburg College Representative. Come and Have a Good Shave, E. A. Wright's or HAIR-CUT at Engraving House, Naffy B. SeftOll's 1108 Chestnut St. PHILADELPHIA We have our own photograph gallery for half-tone and photo engraving. Fashionable Engraving and Stationery. Leading house for College, School and Wedding Invitations, Dance Programs, Menus. Fine engraving of all kinds. Before ordering elsewhere com-pare samples and prices. New Tons:)rial Parlor's, 35 Baltimore St. BARKERS' SUPPLIES A SPECIALTY. Also, choice line of fine Cigars. Northwestern Mutual Life Insurance Company, *^ A, L, Menbeck, Agent, COLLEGE. IF YOU CALL ON C. 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Parties visiting quarries will leave cars at Brownstone Station, on the P. & R. R. R. DO YOU NEED PNEY TO GO TO COLLEGE ? [FROM COPYRIGHTED STEREOGRAFH BY UNDERWOOD AND UNDERWOOD] Happy Land of t :e R* staff Sun where Song Unceasing Flows. Stereoscopes * and * Stereographs K\ can furnish it fo.' you during the Summer Vacation, Many New Subjects for this season: Russian-Japanese War, Panama Canal, Balti-more Fire, President Roosevelt, Gettysburg Battlefield: New Comic Series; Stereo-scopic Tours, accompanied by patent maps and interesting descriptive books- Write for particulars- Underwood & Underwood 3 AND 5 W. NINETEENTH ST., COR. FIFTH AVE., NEW YORK. REPRESENTED AT PENN'A COL. BY E- G- HESS- The CDcFGury. The Literary Journal of Gettyburg College. VOL. XIII. GETTYSBURG, PA., JUNE, 1904. No. 4 CONTENTS "DE SAPIENTIAE PROFESSORIBUS "—POEM, . . 128 ANDROMACHE ET DECIDIANA. RUSSIAN AGGRESSION—Pen and Sword Prize Essay, . 130 PAUL B. DUNBAR, '04. A MODERN FAUST, 136 "X. Y. Z.'' SOCIALISM ,137 JOSEPH E. ROWE, '04. THE SABBATH AS A CIVILIZER, 144 Miss HELEN WAGNER, '06. THE COURSE OF THE U. S. GOVERNMENT IN CONNECTION WITH THE PANAMA REVOLUTION, . 146 CHAS. W. HEATHCOTE, '05. A HUNTER OF MEN—POEM, 148 "BRIDGET." .'THE PATH OF DUTY IS THE WAY TO GLORY," . 151 POEM, 154 EDITORIALS 155 EXCHANGES, . 157 w 128 . THE MERCURY. «DE SAPIENTIAE PROFESSORIBUS." ANDROMACHE ET DECIDIANA. HOW dear to our hearts are those days when at college We studied and wept o'er the classics of yore; The Latin, the Greek, and the terrible German, And brain-splitting ''Math" which we used to deplore. To-night as we sit in the glow of our fire-side, And think of those days and the pleasures of old, Our hearts fain would turn to our former professors, Who gave to us learning, much better than gold. The fire burns low in its smouldering ashes, The faces appear that we once knew so well, Some pleasant and jovial, and others more solemn, But of each, in his turn, we will .now try to tell. Oh Muse ! pray be kind and remain standing by us, And give to us freely and with no restraint, That much sought for gift, the true power of description, So each one may know whom we're trying to paint. The first who appears in the fast dying embers, Is one who made culprits shake clear to their toes ; He'd rap on the desk with a frowning expression, And quell all confusion, just how, no one knows. His eyes were as blue as the azure of Heaven, His hair was inclined to a faint auburn shade, His stature was tall, and this mighty Apollo Was reverenced alike by each man and each maid. And now we behold one so tall and so handsome, Who led our young minds 'round the fair walls of Troy, Who oft would propound his fav'rite assertion That 'there should be guardians for maidens so coy.' And next to him standing, a man of small stature, Whom feline protectors all look on with dread; He bears in his right hand a tight-covered basket, Just lift up the cover ! Out pops a cat's head. Our dear 'Roman Senator' now looms before us, As tall as a dignified 'senex' of old. He too bears a basket, but it's full of good things, And as a 'rear guard' he has 'Waggles,' the bold. The next that appears to our far-seeing vision Is one who seemed stern tho' at heart he was ki-nd. His friends the}' were num'rous, his travels were many, But ever to "Dutchland" his heart was inclined. THE MERCURY. 129 Scarce had his form disappeared in the ashes, When two more professors came into our sight. A halo of gas, (H2S), was around them, Which ever had been their fond joy and delight. How often we shivered when into their class-room We went in dread fear that we might not come out. A "fiss" and a "bang" and a "crash" would oft greet us; And then the stern question, "What are you about?" And now comes a face that so quietly greets us, He led 'little boys' in the way they should go. He taught them politeness as well as sound doctrine, And stirred to high ideals instead of to low. And last but not least comes that jolly, good "Sap'ens" Who once taught us "Math" and a great deal beside, For he used to tell all the jokes of the season, And solved weighty problems discussed far and wide. The fire dies out and we sit there reflecting On those pleasant days and our teachers of old, And we would not sell our fond recollections For all the rich treasures the deep sea could hold. And so let us close while the dark shadows gather, Which hide from our vision each loved noble face. We hope they still walk through those fair halls of learning, And for many years yet each may keep his old place. 130 THE MERCURY. " RUSSIAN AGGRESSION." [Pen and Sword Prize Essay.] PAUL B. DUNBAR, '04. THE discussion of a subject of world-wide importance can-not fail to be influenced by preconceived prejudices. It seems to be natural for Americans as a whole to entertain strongly such a prejudice against Russia. This is probably the result of our instinctive sympathy for the weak in a contest with the strong. The attempt will be made in this paper, how-ever, to set forth as impartially as possible the facts of the Rus-sian Advance. Having studied these carefully, Russia's motives will be discussed, and finally the probable results of these ag-gressive movements will be briefly summed up. A glance at the map of Russia, her possessions and spheres of influence, shows over how vast a region the Empire of the North holds sway. From the Baltic on the west to the Sea of Okhotsk and the Behring Sea on the east, the Russian territory extends in an unbroken stretch—five thousand miles of steppes and mountains, rivers and inland seas, burning deserts and bar-ren tundras. On the broad plains of Siberia are sections of wonderful fertility practically undeveloped and in its mountain ranges are untouched stores of boundless mineral wealth. This entire region is subject to the most diverse climatic conditions, seasons of extreme cold alternating with intervals of almost tor-rid heat. Such is the Empire of the Czar, embracing more than one seventh of the land surface of the globe and support-ing a population of one hundred and thirty millions. Today we see the Great Bear reaching out ready to seize in his powerful clutch territory after territory. The stress of pres-ent events draws our attention especially to the Far East. There we see the Muscovite pressing relentlessly upon the territory of China, and now by the test of battle it must be decided whether Korea also shall be Russian. The Far East is not the only object of Russia's advance. Slowly, silently, by stealth of di-plomacy, plans are being laid, forces set to work to widen Asi-atic Russia to the southward. During the last forty years; THE MERCURY. 131 , •% . — Britain has watched with apprehension the southward advance of the Bear toward her Indian border. Never for an instant dare she relax her vigilance against the encroachment of the Czar. Russian advisers ever ready to advance the interests of their master hold the ears of many of the native border princes. But yesterday came rumors of Russian influence in Tibet, of a treaty of that country with Russia, and the presence of envoys in the Tibetan capital whose purpose is to forward Russian in-terests in opposition to those of England. Turkey and the Balkan States feel this powerful hand and Sweden and Norway look with alarm toward the borders of Finland. What is the history of the growth of this giant among nations ? Three hundred and twenty years ago Russia was a small and semi barbarous state whose advance posts were scarcely eight hundred miles east of St. Petersburg. In the closing years of the sixteenth century, however, there came to the throne a ruler distinguished for severity even in that stern age. Ivan the Ter-rible, by the very cruelty of his rule, inaugurated the eastward movement of that Slavic invasion which now after three cen-turies of alternate advance and retreat is now approaching so terrible a crisis. Rebellious subjects of the Czar fleeing from pursuing troops were forced to take refuge in the unknown, frigid wilderness to the eastward. As they retreated, they easily overcame the scattered nomads who inhabited these regions. Then by turning over the conquered territory to Russia, they obtained the pardon of the Czar Ivan. This was the first step —the entering wedge—in Russia's eastward advance. The tide thus setting toward the Pacific flowed on slowly but resist-lessly, unopposed by rival nations, for the region was to them unknown. A century passed and another mighty figure ascended the Russian throne. Under Peter the Great came further aggres-sive expansion. The northern ocean presented an insurmount-able barrier but in other directions the advance continued. Southward the Muscovite ruler forced his way and to the west-ward Sweden and Poland felt the force of Russian aggression. Thus year after year, under ruler after ruler, the slow policy of 132 THE MERCURY. expansion has gone on. Wherever opportunity offered the Great Bear forced his entering wedge. West and south felt the advance, but it was toward the east that he moved most steadily. As has been said, Russia aims to follow the line of least re-sistance. The vast plains of Siberia, frozen in winter, parched in summer, were a part of the world's surface uncoveted by the earth-hunger of Europe. So while other nations fought and wrangled over other portions of the globe, the Empire of the Czar silently absorbed this mighty region. Thus by slow movements or sudden leaps, by treachery or by diplomacy, by fair means^or foul, Russia at last reached the Pacific—the ocean outlet which she has always desired. Here was encountered an unsurmountable difficulty. Russia, having apparently overcome all obstacles in her march to the sea, was now met and held by the strength of perpetual winter. The ice bound harbors of northern Asia were valueless. Warmer waters must be reached and, having come thus far, Russia was not to be baffled. By a sudden, bold move the Amur was made the southern boundary. Then in i860, subtle diplomacy obtained from China the strip of coast upon which is built the port of Vladivostok. It is significant that the name of this city is the Russian phrase for " Control of the East." As a seaport Vladivostok is a vast improvement over Petropaulovsk, the first Russian port in Kamtchatka, but still there is not en-tire freedom from the disadvantages of winter. Russia still hungered for a warm-water port. The Trans-Siberian Railway was built—five thousand miles of single track reducing the in-terval of transit between Moscow and Vladivostok to only fif-teen days. Events now began to move rapidly in the Far E^ast. In 1894, the close of the Chino-Japanese war left Japan in possession of the valuable harbor of Port Arthur. On the plea that the possession of this port by Japan threatened the in-tegrity of China, Russia forced the retrocession of Port Arthur to its original owner. Two years later, a Russian squadron entered this harbor ostensibly to winter there. Ere many months the world was startled to learn that Russia had leased Port Arthur from China. The integrity of the latter country THE MERCURY. 133 seemed no longer a consideration. Immediately came military occupation of the city and the erection of tremendous defensive works. Russia had obtained her warm-water harbor; but was she satisfied ? Between Port Arthur and the Siberian frontier lies the rich Chinese province of Manchuria. In it have settled many native Russians. What could be more natural than that the Great Bear should covet this prize also to make his possessions com-plete? Asa preliminary step, a Chinese concession was ob-tained for shortening the route of the Trans-Siberian Railway to Vladivostok by a line across Manchuria. Russia had at last obtained a foot-hold south of the Amur. The erection of branch lines to the borders of Korea and the very gates of Pe-kin was but a short stride. In every case the right of garri-soning the railroad was included in the concession. In 1900, came the Boxer Rebellion. Its close saw Manchuria held by an immense Russian army of occupation. In concert with the allies, Russia agreed to withdraw from Chinese territory, but months went by and the Manchurian'army lingered., The wily Muscovite concluded a treaty with China providing for the long-promised withdrawal, but it soon became evident that before this would be carried out new concessions were expected. The Russian representative in Pekin even went so far as to demand that all the Manchurian concessions be granted to Russians. This was but one of Russia's diplomatic attempts to gain a controlling voice in Chinese affairs. China, however, was al'ive to the true state of affairs and refused to commit herself to any further agreements. As a consequence, Russia is still in mili-tary possession of Manchuria. Nominally her troops were kept there solely in pursuance of the treaty-right of protecting her railroad interests. In reality, the whole line was turned into an armed camp by the establishment of forts garrisoned by all branches of the Russian army, and today Manchuria is practically a Russian province. • We now reach the final chapter in the history of Russian aggression—final because it brings us to the present time, cer-tainly not because it marks the end of the advance. With hr's 134 THE MERCURY. grip firmly fixed on Manchuria, the Bear now turned a longing eye to the little kingdom of Korea. The possession of this choice bit of the world was now his aim. Even before the Chino-Japanese war Russia was laying her subtle plans to this end. In 1893 or early in 1894, she made a generous present of rifles to the Korean army and even furnished a Russian drill-master to train Korea's seven thousand soldiers in European tactics. At the same time swarms of Russian agents entered the country. The fruit seemed almost ripe for plucking. But now an opponent faced Russia. Japan had long watched this onward march with jealous eye. In this move toward Korea she saw a positive menace to her existence. Nothing remained but to throw down the guage of battle and to begin the contest whose result is being awaited by the entire world. What are Russia's motives and what her ultimate policy ? Her statesmen would have us believe it is a simple one. Says M. Witte, the former chief of Russian finances and now presi-dent of the Committee ot Ministers : " History measures not by years, but by centuries ; and from this point of view, by the building of the Chinese Eastern Railway to Port Arthur and Dalny.a mighty work is completed, a historical problem is solved, and one of the last steps is taken in the advance of Russia to the Far East, in her effort to find an outlet to the open sea, to the ice-free shores of the Pacific ocean." This is indeed Russia's principal object, but its fulfillment means also the control of northern Asia. And since the de-velopment of her railroad policy has done so much already for the advance of Russian territory, there is no reason to believe that it will not be made the occasion of further advance. We have the word of M. Witte that Russia's object is to obtain a warm-water port. This is in the main a legitimate object and has been partly fulfilled by the acquirement of Port Arthur. But it must be remembered that Port Arthur is not wholly a Russian possession. It is, therefore, obvious that the Russian wishes will not be entirely satisfied until that port is Russian beyond a doubt. The same is equally true of the whole pro- THE MERCURV. 135 vince of Manchurfa. Then, too, it is more than probable that the desire is to reserve the acquired territory for Muscovite trade alone. It is true that Dalny is an open port, but Port Arthur is closed and foreign merchants find much difficulty in meeting Russian competition in Manchuria. As a recent writer puts it: The Russian motive may be viewed from two stand-points. Russia herself would have us believe that it is benevo-lent. She is building a railroad through unopened territory, erecting modern cities and valuable mills in the wilderness, and setting up an orderly government in the place of misrule. The outsider acknowledges all this, but what, lie a;ks, will Russia demand in return for these enormous expenditures? The an-swer is apparent. It has already been given. She has the right of protecting her interests and now demands a complete monopoly. Such are Russia's complex motives. What will the outcome be? If Russia be successful in the present contest, will her aggressive plans be concluded without opposition ? Will the world witness the spectacle of Korea and China absorbed or will the Powers step in to fix a limit to further expansion ? If they do so, will their strength be sufficient to restrain the Bear already flushed with victory ? If Russia be vanquished, will the settlement thus arrived at be permanent ? Will little Japan continue to be an efficient barrier, or will returning strength again put in motion the tide setting toward the Orient with overwhelming volume ? Will the gallant Island Kingdom perish or may it look for help to Europe and America? Time alone can bring an answer. Here prophecy has often failed and will fail again, for as has been well said: "Russia's state-craft is not of the months or of the years; it is of the ages. It is not of monarchs, but of a dynasty, and it is less the policy of the dynasty than it is the need of a people and of a land." 136 THE MERCURY. "A MODERN FAUST." (BEING A BIT OF TRUTH MASQUERADING AS NONSENSE.) ONCE upon a time—during the twentieth century—there lived a young man who had been but three years out of college. Having entered the greater University of the World, he had been hailed by his fellow Freshmen as a comrade, had been hazed by Sophomores, patronized by condescending Juniors, and deluged with advice by venerable Seniors, even as he had been in college. But he was a restless and adventure-some youth. The monotony of the office palled upon him, and, for relief, he experimented in Mysticism and Christian Science. One momentous evening he conceived the idea of putting his knowledge to the supreme test, by summoning be-fore him the Prince of Darkness. Thereupon he took down his LeConte and. his Mary Baker Eddy from the shelf and set to work. And in very truth, gentle reader, in less than half the run-ning of an hour glass, Mephistopheles himself stood before him. faultlessly attired in evening clothes—for the red cap and mantle had succumbed to the spirit of progress in Hades even as the simple sins of our forefathers have given place to the more delicately refined and ingenious vices of to-day. But in this one respect was the Devil unchanged. For no sooner had the usual conventionalities been exchanged than lie attempted to purchase the soul of the youth in the most approved man-ner. He showed him visions of fair women, even as he had shown them to the Faust of old. But the youth was unmoved; he smiled and shook his head, for he was a wise youth. And the Devil promised him great riches and power. But the youth, for he was wise, replied, "If these things were worth while, O Lucifer, I could attain at a lesser price, even hard work. It is not enough." T,hen did the Devil promise a most miraculous thing, "For," said he, "if thou wilt give thyself to me, Grover Cleveland and William J. Bryan shall make a truce and be as brothers. Shoulder to shoulder they will fight for thee and nominate thee for the Presidency on the Democratic THE MERCURY. I 37 ticket. Thou wilt be the most talked-of man in the Nation." But the youth, being wise, replied : "Am I not own cousin to the Proprietor of Pennsylvania, and is it not agreed that I shall be the next State Treasurer? And is not this better than to be President, much less a candidate for President mid on the Democratic ticket? Go to, it is not enough." Now the Devil was almost vanquished, but he was also wise and he thought deeply, and he said, "I can then offer thee nothing more than again to make thee a reckless, carefree Sophomore among thy former classmates. Think! Is it not enough?" And the youth meditated within himself; he knew there were no days like those days; he longed again to be carefree and thought-less, recognizing no higher authority than his own sweet will and the majority action of his class; his heart called out for those friends who, too, had dwelt in Arcady. And he replied, "It is enough." For he was a wise youth withal. MORAL—Eat, drink, and be merry, ye Seniors, for to-mor-row ye die. "X. Y. Z." • SOCIALISM. ( Written for the Pen and Sword Prize Essay Contest.) JOSEPH E. ROWE, '04. THE word socialism was first used in 1835 in connection with an organization founded by Robert Owen of Eng-land. This society was given the grandiloquent appellation of the Association of all Classes of all Nations, and its purpose was to secure "Social improvement and reconstruction." Since that time the word socialism has been applied rather incautiously, and,as a consequence, it is an exceedingly difficult word to define with precision. According to some writers there is a growing tendency to regard as socialistic any inter-ference with property undertaken on behalf of the poor, or any measure promoted by society to limit or modify the working of the economic principle of laissez-faire. Roscher defined socialism "as including those tendencies which demand a greater regard for the common-weal than consist with human 138 THE MERCURY. nature." John Raeof our day declares that it is common to describe as socialistic "any proposal that asks the State to do something lor the material well being of the working class, or any group of such proposals, or any theory that favors them." Janet defines it as "every doctrine which teaches that the State has a right to correct the inequality of wealth which ex-ists among men, and to legally establish the balance by taking from those who have too much in order to give to those who have not enough, and that in a permanent manner, and not in such and such a particular case—a famine, for instance, or a public calamity." But these definitions and all others describe only phases of the question. For instance, in order for any measure to be socialistic it need not proceed from the State; it may emanate from individuals just as well; in fact the earliest socialistic measures proceeded from individuals. There was socialism in colonial times when they had a common storehouse from which each one received his equal share of goods; the instituting of a wider system of public schools is a highly socialistic measure ; an equal distribution of profits between two partners, or among the many members of a company is also socialistic; and yet it is just as proper and usual to describe as socialistic the so-called "strikes," or the assassination of million-aires by dynamite. It is, therefore, evident that socialism em-braces a great deal; at the same time, we must remember that all these are only different phases of the same great question. All socialists are alike in attempting to secure a more equit-able distribution of wealth, or in endeavoring to equalize op-portunities for acquiring it; but the salient points upon which they differ are the ways and means of accomplishing their ends. Some maintain that the State, by managing industry and controlling land, could best promote the commonweal; others very emphatically declare that there should be no cen-tral government at all. The more radical of the first class try to get control of the government; those of the latter class en-deavor to destroy it. Unfortunately in the present age the most influential forrfl of socialism is of the most radical and revolutionary character— THE MERCURY. 139 that which desires no government at all. Alexandria II. of Russia and our late President McKinley fell victims to this outrageous doctrine. Nihilism and anarchism are its more specific names. Yet we cannot afford to consider as danger-ous all socialistic measures of today. Upon exactly this prob-lem a great amount of useless discussion has taken place. Politicians of late years have made very effective use of the ambiguity in the word socialism. Whenever an opponent could accuse a candidate for public office, of promoting socialistic measures, no matter how benevolent or beneficial they might have been to the people, the mention of that word together with the prevalent misconception of it in its better sense, was generally the most derogatory charge brought against him in the eyes of the ignorant working classes—the very persons whom worthy socialistic principles would benefit. Although every writer has made his own classification of so-cialists, they all directly or indirectly acknowledge the four following classes: (1) large-hearted and thoroughly benevo-lent men whose feelings have been touched by the unjust op-pression of laborers ; (2) those who are revolting against cruel oppression; (3) those who are discontented with their positions in life, principally because they fail to realize their limitations; (4) the lowest class whose adherents are characterized by a covetous, selfish, and utterly lawless spirit. The first of these classes consists principally of nothing more than ardent sympathizers with the socialistic movement in its better meaning. According to good authority more than a half million of such men are found in the United States. Many ministers of the gospel and other benevolent men as well as the members of philanthropic and humanitarian orgini-zations belong to this class. They sympathize deeply with the oppressed laborer and endeavor to alleviate his misery by every peaceable means. Others of this class" become so impressed with the necessity of social and industrial improvements that they have devoted their lives entirely to the cause. These are quite liable to be-come extremists, and notwithstanding the fact that their inten- 140 THE MERCURY. tions are of the most noble character, more harm than benefit results from their efforts, chiefly because the lower moral and mental capacities of those whom they influence are not vigor-ous enough to prevent the latter from becoming radical, desper-rate, and fanatical. Hall Cane has pictured such a man in his "Eternal City" in the person of Dr. Roselli or of David Rossi, especially in the latter; but the futility and evil consequences of their efforts are also portrayed in a striking manner. It is only natural that there should be such men especially in a Christian nation. When one considers the extremely low wages for which laborers had to work at certain periods of our history, the condition of some of their homes even in our day, the company store and the extortion ot overwork from them by overseers, it is not very strange that large hearted men should bestow their symapthy. No doubt, these conditions have been vastly exaggerated by some writers, but that they exist to a reasonable extent cannot be doubted. The oppressed or those who imagine themselves to be in such a condition, constitute the second class of socialists. Only men who work come properly under this divisicjp; those who become discontented and quit work will be considered later. Labor Unions consist almost entirely of such men; if they suspend labor, it is only temporarily, and is for the purpose of bringing about better conditions. Occasionally the labor union-ists content themselves by merely putting a stop to production, but more frequently, almost invariably, they manifest quite "an omnivorous spirit of destruction." The whole cause of the unreasonable demands made by Labor Unions seems to arise out of ignorance. They claim that the whole production of their labor belongs to them, on the ground that wealth belongs to those who make it. In a certain sense this is true, but not according to the interpreta-tion of it given by these laboring men. They understand it to mean that the entrepreneur, landlord and capitalist have no natural right to a portion of the wealth produced, forgetting that in the modern differentiated and specialized form of in-dustry these—especially, the entrepreneur and capitalist—are THE MERCURY. 141 absolutely indispensable. The socialistic idea of the State's ownership of land could probably do away with the landlord, but to attempt the abolition of entrepreneur and capitalist in our present industrial system is absurd. Another very prevalent kind of socialism arises out of the fact that a great many men, failing to realize their limitations, complain of the more advantageous opportunities of other in-dividuals. They claim that the world owes them a living, but as some one has said, "are too lazy to collect the debt." It is this sort of socialism which is the "besetting sin" of our age. Ambitious people now-a days are so thoroughly imbued with the spirit of "sticktoitiveness" that only a few failures leave them practically undaunted. Having been taught, as Dr. Furbae says, such precepts as "There is always room at the top," encouraged by such maxims as "Try, try again," and cautioned to aim high instead of directly at the mark, they continue to strive for positions to which it is impossible for them to attain and for which, if they did reach, they would find themselves wholly unfitted. Many a proud father and fond mother, either because they have wished to encourage a son, or because of the blindness of paternal love, are respon-sible for a young man's superabundance of self-esteem by their having told him that he is not like the average person, and then he goes forth into the world only to consider his efforts unsuccessful because he cannot do as much as some one else who probably has much greater talent. It is this tendency of the individual's failure to realize his true place in life and his proper relation to others that has produced in our age so many dissatisfied, petulant, and cynical socialists. The last and most dangerous sort of socialism is that which manifests itself in murder, vandalism, and other lawless practices. It is exactly synonymous with anarchism. The number of such persons in the United States is as astounding as the awful doctrines which they promulgate. Some years ago President Seelye of Amherst College, declared: "There are probably 100,000 men in the United States to-day whose animosity against all existing social institutions is hardly less than bound- 142 THE MERCURY. less.' In 1881 their press consisted of 19 journals with a cir-culation of about 80,000, and since that time their numbers and the powers of their press have vastly increased. The fol-lowing are statements from some of their papers. "Religion, authority, and state are all carved out of the same piece of wood—to the Devil with them all!" "Dynamite is the power which in our hands, shall make an end of tyranny." "War to the palace, peace to the cottage, death to luxurious idleness." "You might as well suppose the military orginizations of Eu-rope were for play and parade, as to suppose labor orginizations were for mere insurance and pacific helpfulness. They are organ-ized toprotect interests, for which, if the time comes, they would fight." This last, taken from a socialistic paper of Chicago, pro-bably shows, to a great extent, the true relation between Labor Unions and socialistic tendencies of the most awful character. Such socialists probably began their careers as oppressed working men, or as men who failed to realize their true posi-tions in life, and later under the influence of violent socialistic journals or the lectures of an Emma Golden, became fanatical. A great number of them are foreigners who, having become disgusted with the absolutism of Europe, have come to Amer-ica to carry out their nefarious designs. Several great movements of the past two centuries have conspired to inspire socialistic propensities in men. The foun-dation of the American Republic, with the annunciation of her principles—-such as, "all men are equal and possessed of cer-tain inalienable rights such as, life, liberty and the pursuit of happiness"—paved the way for ideas which, carried to extremes by the ignorant and mischievous, resulted in socialism. In the same way, the French Revolution radiated its evil influences; and the Proclamation of Emancipation by Abraham Lincoln had its baneful as well as its worthy effects. But more influential than any of these has been the greatly increased profits of the rich. How would a poor down-trodden laborer look upon the following statement which occurred in a paper of 1880 ? "The profits of the Wall Street Kings the past year were enormous. It is estimated that Vanderbilt made THE MERCURY. 143 $30,000,000; Jay Gould $15,000,000; Russel Sage $10,000,- 000; Sidney Dillon $10,000,000; and James R. Keene $8,- 000,000. Is it strange if the working man thinks he is not getting his due share of the wonderful increase of national wealth ?" How do men to-day regard a rise in the price of coal-oil and the next week read in all the papers that the larg-est stockholder of the Standard Oil Company has made a be-nevolent gift of several million dollars ? The assassination of rulers and millionaires, the wanton des-truction of property by strikers, and the inconvenience accru-ing from a stoppage of production are not the only bad results of socialism. It tends to ruin the Church as well as the State. Infidelity and skeptacism follow closely in its tracks. In a so-cialistic convention at Pittsburg not many years ago the follow-ing nefarious resolution was unanimously adopted: "The church finally seeks to make complete idiots of the mass, and to make them forego a paradise on earth by promising them a fictitious heaven." "Truth, a socialistic journal of San Fran-cisco says : "When the laboring men understand that the heaven they are promised is but a mirage, they will knock at the door of the wealthy robber, with a musket in hand, and de-mand their share of the goods of this life now ! " What could have a more disasterous effect upon discontented humanity than to read such doctrine ? The socialist of this order denies the existence of God on the ground that if there would be one, wealth, happiness and opportunities would be more equally shared ; they forget to see that the rich are as often unhappy as the poor, and that God sends "his rain upon the just and unjust." Although an attempt to solve a problem of such magnitude may appear absurb, there is, at least one, feasible solution— a more general acceptance and use of the principles ot Chris-tianity. "Socialism attempts to solve the problem of suffering without eliminating the factor of sin." That all suffering caused by our industrial system is the result of sin, either on the part of employer or emplyee, or of both, there can be no doubt. If the spirit of the Golden Rule were put into practice, it "would 144 THE MERCURY. dictate such arrangements between capitalist and laborer as will secure to the latter a fair return for his toil." As Dr. Fisher says, "It will check the accumulation of wealth in a few individ-uals. And the Christian spirit, as in ancient days, will inspire patience and contentment, and a better than earthly hope, in the minds of the class whose lot in life is hard." THE SABBATH AS A CIVILIZER. Miss HELEN WAGNER, '06. WHEN God said, " The seventh is the Sabbath of the Lord thy God, in it thou shalt not do any work, thou nor thy man servant—," He surely had more ends in view than the mere refreshing of man and His own glorification. Besides achieving these results the Sabbath has other far-reaching in-fluences. Chief among these influences we see its power as a civilizer, as an educator and a refiner. It has long been an ac-knowledged fact that Christianity pnd education go hand in hand. In the accomplishment of one we necessarily attain the other. The influence of the Sabbath is like the atmosphere—it sur-rounds every one it touches, whether with that one's approval or not. The most violent atheist would be no more likely to scorn the influence of the day set apart chiefly for the worship of the God he ignores than would our staid old deacons. It has been proven that no civilized country can exist without the aid of the soothing influence of the Sabbath on the passions ot men, in the observance of its laws. Because the influence of the Sabbath is so all-prevailing and must be felt everywhere, no man can or does escape it. Christians, of course, are those most directly affected by the Sabbath. They come into immediate contact with some of its most potent influences. A true Christian never misses the Sabbath—he spends . it in the worship of God and for rest as was commanded. And so he reaps not only the physical bene-fit but the intellectual as well. One of his chief duties and THE MERCURY. MS '* pleasures is a regular attendance upon divine worship. Thus while being spiritually fed and elevated he assimilates some of the best literature and art of the world as it radiates from the pulpit and the organ loft and the temple of God itself. But the people who do not come into direct contact with the Sabbath influence, feel it just as surely. They must breathe it with the very air. One cannot go anywhere on the Sabbath Day without being made very conscious that this day differs from all others. In the cities and towns the stillness imparted to the streets, noisy and hustling on other days, by the aspect of the closed stores and shops and the absence of the clattering dray and shouting venders, and the quietly passing inhabitants with their peaceful, serene countenances and their fresher, more artistic raiment, and the sweet music of the church bells—all have a subduing, refining influence on the sensibilities and pas-sions of men, not easily thrown off. And out in the open country away from church bells and changed surroundings one feels an unwonted peace and calm—one breathes with the very air which draws one a little nearer Mother Earth—and thus is made to appreciate her beauties and truth a little more fully. Besides these maternal, physical influences there is another, more subtle, ever advancing influence—the influence of man upon man. Usually the Christian does not need the Sabbath environment for purposes of self-education and refinement, but those with whom he associates or with whom his friends come in contact may and are more helped, as they imperceptibly absorb from him a finer sense of right and wrong and a better general knowledge, than they would be by any numbers of over-zealous instructors and noisy evangelists. I46 THE MERCURY. THE COURSE OF THE UNITED STATES GOVERN-MENT IN CONNECTION WITH THE PANAMA REVOLUTION. ( Written for the Pen and Sword Prise Essay Contest.) CHAS. "VV. HEATHCOTE, '05. PANAMA has an area of about 31,500 square miles and a population of almost 300,000. When Panama revolted a short time ago, it was not the first time she attempted to throw off the yoke of Columbia. In 1885 a similar revolution took place. Columbia promised various reforms which checked the revolution. However, Columbia failed to carry out these reforms. Columbia established a centralized form of govern-ment which caused Panama to lose the privilege of a state. For years the idea of building a canal across the isthmus has been in vogue. The French Company, which attempted it a few years ago, failed miserably. It remains for the United States to carry out the plan. The Panama and Nicaragua routes were suggested. The need of the canal is very evident. If the canal had been built when the Oregon made her long run around Cape Horn the United States government would have been saved much expense. Then, the American interests in Porto Rico, Cuba and the Pacific possessions strongly urge the construc-tion of this canal. For a time the Nicaragua route was favored. A bill was drawn up and unanimously ratified by both Houses of our Na-tional Legislature. The main idea of this bill was that when the canal was completed it was to remain neutral under the protection of the great European powers. However, delay over this part led the people to favor the Panama route. Fi-nally, upon the recommendation of the Walker Commission, the Panama route was chosen providing it could be bought from the old French Company for $40,000,000. However, to keep our word with Nicaragua, the Spooner compromise was passed which instructed the President to select the Panama route pro-viding the necessary arrangements could be made. If, not the Nicaragua route was to be chosen. About this time Columbia became very much interested in THE MERCURY. 147 the canal affairs. They gave the United States every assurance that a treaty favoring the Panama route would be ratified by their Senate. However, after much delay, it was unanimously rejected. Columbia was to receive $10,000,000 for certain con-cessions. Columbia thought the United States was an easy mark and refused to ratify the treaty unless $20,000,000 was given to them. In all these proceedings the Columbian politi-cians refused to consult the wishes of Panama. Panama knew the value of the canal. That the Columbian politicians were working for their own interests was very evident. Conse-quently Panama's hatred for Columbia grew more intense. When the revolution broke out the world was not surprised. The revolution was virtually bloodless. The republic was soon recognized by the United States, France, Germany, Russia and many other powers. In a short time a treaty was drawn up and signed. By this treaty the United States gained complete ownership of the canal and received much more territory than she would have received had Columbia-not acted in such an ugly manner. The course of the United States government has met with general approval by all well-thinking people. All the foreign powers sanctioned the action. Many people tried to condemn the course of the government because the warships were or-dered to prevent any of Columbia's troops being landed to bring Panama to time. How often in the South American rev-olutions the lives of our citizens and likewise their property have been endangered. Many times before this the United States marines and sailors were landed to protect the property of our citizens. American interests are better developed in Panama than in any other South American state. American capital runs the whole railroad system on the isthmus. What good is a government to its people if it fails to protect them ? Then again Panama had been recognized by the United States and for that reason alone her action was justifiable. Some people in criticizing the government forget the action of Presi-dent Polk in the way he started the Mexican War. His action cost the United States' thousands of lives and dollars in order to maintain the national honor. Today all people recognize 148 THE MERCURY. that the addition of Texas to United States territory is a blessing. The idea that the government's course is a stain up-on the history of our country is erroneous. The government has upheld our traditions by being the champion of the weak and helping young republics maintain their standing. "A HUNTER OF MEN." "BRIDGET." WITHIN the forest depths I wandered far, O'er the great battlefield, where bloody war Had made upon our land a loathsome sore, Healed now, but still retaining its deep scar. At last, upon a wooded hill was found, what I had sought, A monument, commemorating strife With victory and loss of life, The boon God-given, A monument for heroes, dearly bought, A witness unto Heaven. Upon a natural rock, like those which on the hillside lay, Was carved the figure of a man; Not as the Knights of old, with upright pose, And fearless eyes, he faced his foes, at bay, But crouched and hid him, midst the trunks of trees, And with a deadly purpose, did the hillside scan. 'Twas here I rested me, A dream I dreamed, Which, to my wand'ring fancy, even seemed A waking dream, a reverie. Within the homestead of an old Virginian farm, A mother sat one sunny summer morn, Holding, within the shelter of her arm, A little babe, her son, her own first born. Oh! what a wondrous grace was in those words,, "her own," What sword could pierce the soul of such a one ? A soul, so full of hopes, before unknown, The deed too cruel, to be planned or done. THE MERCURY. 149 A glorious future lay before her boy, All fashioned with her mother love and care, A future, full of happiness and joy, Devoid of sin, the bait of Death's dread snare. "Her own," but ever since the earth wastrod By her, above all women blest of God, In honor of her wondrous motherhood, The soul of womankind has felt the sword. He grew into a handsome, stalwart youth, Beloved by many, and disliked by few, Then came the blow; her soul was pierced in truth, And he went forth to die, as sons of all brave mothers do. To die, but could he kill his fellow-man? This was the question that had haunted him, Upon the day of march, and in the nightly din Of dreadful dreams, bloody with warfare's ban. A marksman of sure eye, and hand unfaltering, Far-famed was he, And many a woodland voice had cased to sing Through death, from him, its untaught melody. So, when night's dreams were changed to day's reality, Not placed in ranks that fought an open war was he, But called of men, a sharpshooter, lay low, Upon the hillside's brow, to slay the unwary foe. #**#*#***♦* The sun comes flickering through the whispering leaves, Casting their shadows on green moss and fern, A birdling, from a nest above, moves restlessly, and grieves, In dismal chirpings, for its mother's late return. The noonday calm is over hill and glen, Save for the distant sound of battle's roar, There, where a multitude of bravest men, Fight onward for their country's noble fame, for honor more. Then with a rustling sound, the calm is broken, The underbrush is parted by a man in blue, A moment's pause; no warning word is spoken, To tell him "Death is waiting now for you." And he, whom destiny ordained to give to Death her prey, One instant hesitated, in his covert lay Sickened by fear, of his dread deed alone, Then aiming fired and it was done. ISO THE MERCURY. Quickly his weapon casting on the ground, He bounded fearless, down the wooded slope, His boyish eyes, all bright with unshed tears, For in his soul remorse fought hard with hope. And Hope, how soon 'twas vanquished in the fray, A boy, scarce older than himself, his victim lay, Dying in agony upon the sod ; No word he spoke, but with great eyes of pain, Looked up into his face, who had his brother slain, And then, just as the birdling fell to earth, His spirit met his God. 'Twas then a red mist rose before his eyes, a mist of blood ; Concealing the poor body of the slain, from which the soul had fled, He climbed once more the hillside's weary road, Determined to repeat his deed of dread. At sunset, when the wounded mother-bird Returned, to find her nestlings gone, No sound, upon that dark hillside she heard, To tell her of the deeds that there were done. Yet, 'midst the underbrush, there silent lay What had been seven brave men, And he, who watched the little bird's dismay, Red-eyed and haggard, envied each of them. But God is good, his day of darkness o'er, A wandering bullet claimed him for its own, And his sad soul, its struggles knew no more, No more did yearn for murder to atone. As from my dream I woke, my heart was torn With pity, for the " Man of Sorrows " who, Upon another hill, in distant clime, Gave up his life " hunter" for such as you. " Oh, God Omnipotent! " aloud I cried, " For His dear sake forgive the crimes, Committed in the name of Liberty, and dyed With heroes' blood, the curse of warlike times." THE MERCURY. 151 "THE PATH OF DUTY IS THE WAY TO GLORY." NO one will deny me the fact that our present age with all its hurry and hustle, its energy and propelling-force, its competition and its competitors, is an age for the success of in-dividual purpose. Having granted this concession, it follows that individuals must exist with specific purposes, carrying out and fulfilling the obligations which are imposed on them. Be-lieving that no man has ever been created without a purpose, which results in a duty or obligation to his Creator, and when he fulfills this obligation or carries out this duty he has a for-tune worth more in realistic and spiritual value than all the Rockefellers, Carnegies, Vanderbilts or any other gods of gold that ever lived—believing this, I ask you to come with me to the rich meadow-lands of Connecticut, where on Oct. 5, 1703, a man was born who graduated from Yale University at the early age of 16 and set out into the world following the paths of duty and therein was his fortune, a legacy far richer than any earthly inheritance the world could have given him. It was during his boyhood days that a problem of extreme importance began to trouble him, and the solution of this was the determining of his course in after life. From that time he became a man that had an end in view, a something to say and he said it. A bold, fearless, ardent and consistent advocate of his belief; a man with a conscience so clear, so pure, and so unbiased that all the world loved him though he sought not for their favor; a man with iron-clad precepts, not for others, but for himself and he lived them; a man that has come down through two centuries, spotless, to live in the hearts of all man-kind, and who dares to say that his glory shall not live till the sun shall cease to rise and set and until time shall be no more ! This man of purpose or duty has been the father of a very illustrious progeny. Among his descendants more eminent men have been numbered than have been recorded of any other man in American history. They have been most promi-nent in the ministry, in education, in law and a number have sat on the bench. Let me mention some of them: Dr. Jo-nathan Edwards, Aaron Burr, Vice-President, Prof. Park, of Andover, President Woolsey and President Uwight, of Yale, 152 THE MERCURY. not forgetting the elder President Dwight. Three Presidents of Yale are his descendants. Could any man be more signally blessed or have a richer inheritance in the hearts of his child-ren ? He was also a born naturalist, and there is hardly any doubt that had he not become our greatest theologian he would have been our father of Natural Philosophy. As a boy he dis-covered facts which have been handed down to the naturalist of today as most valuable information. Who can set the limit for his discoveries had he devoted himself to this branch of science with his purpose and ambition ? Jonathan Edwards as a man, as a theological and philosophi-cal writer, as a naturalist and as the broadest and grandest man the American pulpit has ever produced, stands out in lines so bold, in verse so tender, and in character so spotless as to thrill with admiration and awe every American youth of today. Who would not love to be what he has been ? Who would not exchange all the wealth he possesses—I care not whether it be millions—for the place Jonathan Edwards holds in the hearts of the people and in the history of his country ? His life is a story that should make any young man enthusiastic and his success has been such as would turn the heads of thousands had it been theirs, but not his for he had a purpose, a convic-tion, a duty to the world and his fellow-man and until that should be accomplished his labor was with him incessantly. Truly he knew the paths of duty and just so surely his glory followed. In two centuries from today how many men's 'names of the present generation, lives and characters do you suppose will have been handed down to posterity ? Where are our Long-fellows, our Emersons, Whittiers, Bryants, Lincolns and Far-raguts of today ? Are we producing any such ? Indications from the past decade and more do not show them and it is believed that unless a change in the ambitions of the young of today is brought about, America will have none to record in her history. The lust for gold is the keynote to this dearth of noble manhood. Men are willing to sacrifice anything—prin-ciple, creed, honor, friends, self, anything—no matter what to obtain the riches of a Carnegie or Morgan. THE MERCURY. 153 Says B. O. Fowler, "if this, our republican form of govern-ment is to stand we must have men" and he means more men like Jonathan Edwards. The U. S. Senate has grown to be a rich man's club, the offices of the government are filled and controlled by political graft with men who are unable to cope with the issues demanded of them. Oh for a few fearless preachers of duty and loveliness, for a few men like Jonathan Edwards; men with purposes, men with a sense of duty and honor, men with the love of a superior being in their hearts ! Our nation must have these men and she is going to get them. Whether they come from Connecticut or from Florida, from California or from Pennsylvania it matters not; they must come. Would you have this, your free form of government turned into a monarchy? Indications point us to the fact that it is gradually being done and there is only one sure method of making the wrong right. This threatening evil can only be averted by finding men who are willing, if need be, to die for a correct principle. Nothing counts so much as principle and nothing tells in a man like purpose. If you would have a for-tune, have a principle, and if you would have the love and esteem of your fellow men live a principle. In all the history of the world there never was a grander period in which to live than the present. Never was there so much to do, so many chances, so bright an outlook, but it is only for the man with a sense of duty. The nation wants men, but she wants them stern, tender and fearless, full of duty and loneliness as was this missionary to the savages, this first of American naturalists, this explorer of philosophy and theology. If for no other vir-tue we should love and revere the memory of Jonathan Edwards today because of his devotion to stern duty and to no other cause can we attribute his success and glory. If asked to write his epitaph I would have inscribed on his monument the sub-stance of his acts done on earth : "The part of duty is the way to glory." "C. E. B. '05." 154 THE MERCURY. POEM. ( Written by a quondam High School pupil.) We come before you this evening, To tell of our High School days, And while our stories we relate, Don't criticize our ways. We started the fourth of September The ladder of knowledge to climb, While the months were rapidly passing, Marking the flight of time. While our work was thus progressing. The holidays drew near, And through all the glad and happy days Were pleasures, unbedimmed by tears. We studied hard to reach the goal, We scholars of Number Ten, And now to the fullest we realize " Laborum Dulce Lenimen." The friendships, sympathies and all That were our life in school, Are meshed with memories of the hall, Which was our working tool. 'Tis sad to part with friends so dear, With whom so long we've been. Try as we will, the briny tears Will come, and sight bedim. School life, so dear, is over now, On life's broad wave we speed, May God 'ere guide our journey through, And we His warnings heed. To one and all we bid farewell, As now are separated The many friends who proved us well, And joys anticipated. Farewell to many undone tasks, To victories not yet won ; May all unfinished work In heaven, if not on earth, be done. * f THE MERCURY Entered at the Postoffice at Gettysburg as second-class matter VOL. XIII GETTYSBURG, PA., JUNE, 1904 No. 4 Editor-in-ch ief C. EDWIN BUTTER, '05 Exchange Editor CHARI,ES GAUGER, '05 Business Manager A. L. DILLENBECK, '05 Asst. Business Managei E. G. HESS, '06 Associate Editors H. C. BRILLHART, '06 ALBERT BILLHEIMER, '06 H. BRUA CAMPBELL, '06 Advisory Board PROF. J. A. HIMES, LITT.D. PROF. G. D. STAHLEY, M.D. PROF. J. W. RICHARD, D.D. Published each month, from October to June inclusive, by the joint literary societies of Pennsylvania (Gettysburg) College. Subscription price, one dollar a year in advance; single copies 15 cents. Notice to discontinue sending the MERCURY to any address must be accompanied by all arrearages. Students, Professors and Alumni are cordially invited to contribute. All subscriptions and business matter should be addressed to the Busi-ness Manager. Articles for publication should be addressed to the Editor. Address THE MERCURY, GETTYSBURG, PA. EDITORIALS. LOYALTY TO Probably no force, power or influence among ALMA MATER, the graduates of a college is felt so much as Loyalty. We all believe that a college can be only what her Alumni wills her to be. If she is to spread her influence through-out many states; if she is to wax strong and command a place among the leading universities and colleges of the world; if she is to grow and prosper as she should, and as so many col-leges are doing, she must have your support, Alumni. Loyalty to Alma Mater must be your watch-word day and , night. Be eager, ready and enthusiastic at all times and you will be surprised beyond measure how much you can do for her. The very fact that you are a graduate is proof of your obligation and should be a sufficient incentive to rouse your earnest endeavors on her behalf. I56 THE MERCURY. Every college, no matter where or how situated, has its own reasons for producing loyal Alumni. It is, indeed, a sad day for the old mother when liar son turns his back on her, and it is a sorry day for Gettysburg when an Alumnus forgets her love and devotion. Perhaps a true indication of the success a man will make in the world is the spirit and vehemence with which he accomplishes his college work. If the undergraduate does his very best and is loyal to the core, the college cannot be without loyal Alumni. He who sings most lustily his Alma Mater'a songs, who has again and again made his throat raw with a "heike" for the orange and blue, who fervently loves every spot of this historic ground, he is the fellow who usually counts for something. Tis to the devotion and love and in-terest of such men that Gettysburg pays tribute. Loyalty to Alma Mater means the preaching of her charms to every boy who expects to go to college, and to many more who have never had a thought of a college course. Loyalty to Alma Mater means doing one's best and a keen and lively interest in all her affairs. Loyalty to Alma Mater means your unbounded support, Alumni, to your college publications. Gettysburg wants love and devotion and loyalty from every Alumnus. How much will you do for her in the next year ? Shall we, undergraduates, believe your efforts to be commen-surate with your love ? It is the only criterion we have with which to take your measure. Are you one of the many who are always so busy that when an appeal comes you must beg to be excused ? If you are made of such stuff, Gettysburg has no use for you, and the noise you will make in the world will never cause a disturbance. Our dear old college has many loyal alumni who have fought, bled and died in her interests, and to them, we, her sons, give all the honor and reverence for what she is today and for what she gives promise of in the not far distant future. Sooner or later in the life of many a young person the ques-tion comes, "To what college shall I go after I have prepared myself in the academy or high school?" It is thrusting itself upon a great many young people in this month of June, as the THE MERCURY 157 colleges and universities are sending out their scores and hun-dreds of graduates and the preparatory schools are finishing up the share of- the work that properly belongs to them. It is a serious question, one that will mean much in the life of the in-dividual, one that should not be decided without grave con-sideration. Shall he go to the college having the most successful ath-letic teams ? or to the one having the greatest reputation ? or to the one which makes the greatest promises ? These are some of the questions usually taken into consideration by pro-spective college students. But how many stop to ask them-selves and to consider the vastly more important question, "Which college lays the greatest emphasis upon the training of its students in the duties of good citizenship and the devel-opment of Christian character?" This, after all, is the important consideration. Not how great a reputation do the athletic teams have, not how much does it seem to promise, but how much importance does it attach to the development and training of that which really makes character ? H. C. B. -^> EXCHANGES. " Criticism is essential to good work. True criticism is both appreciative and corrective, but it is not so essential that a writer receive perfect criticism after all. Public judgment, fav-orable, adverse or perverse, is instructive and leads us to correct our errors, improve our style, sharpen our wits and pay more attention to the perfecting of our work, line by line. Have you a thought, the plot of a story, the idea of a poem ? Write it in your best and freshest moments and lay it by until the frost of cool evenings has chilled it, and it has become a thing apart from yourself. Then criticize it, remodel it, with your best impartial judgment. Never doubt that the English lan-guage has the right word ; and the right words rightly and ar-tistically constructed, make famous literature of the thought of men."—The Bowdoin Quill. I58 THE MERCURY. V The Otterbein Argus contains a rather interesting story en-titled " Character Painting." It pictures quite vividly the con-dition of many a poor child in the mining districts of our coun-try and portraying the effect produced by refinement and wealth upon so uncultured a mind as that of the heroine. While this story is good in the main, it is the only article of a literary nature in the journal. We cannot feel that such a meagre amount of literary matter does justice to a school which styles itself an university. The editorial pointing out why students should remain for commencement, whenever it is at all possible, is timely and well worth putting into practice. Commence-ment exercises are the crowning events of the year, and cer-tainly, whenever possible, the student should avail himself of this privilege to enjoy the happy closing of the school-year and also to bid farewell to the graduating class for whom it means so much. Remember that you yourself expect to be in a similar position some day, then perhaps you can better appreci-ate its significance. The best part of the World's Fair number of The Wabash is its "exchange pickings." The exchange editor is to be com-mended^ for his judgment and selection of clippings. We quote a few of them. " Are you Hungary ? Yes; Siam. Well, come along ; I'll Fiji." Again : " It is said some girls are pressed for time ;—others for the fun of it." " If college bred is a four-year loaf (The Smart Set says its so.) Oh tell me where the flour is found For us who need the dough !" —The Acorn. TEACHER—Johnny, repeat after me " Moses was an austere man and made atonement for the sins of his people." JOHNNY—" Moses was an oyster man and made ointment for the shins of his people." MM » "THE MERCURY. 159 "Usefulness is the rent we are asked .-to pay for room on earth. Some of us are heavily in debt." The May number of the Manitou Messenger \s a credit to the new staff. The oration "The Public Service of Church and School" is a well written and logical development of the power exerted upon the state by church and school. " Chaucer's Hu-mor" is a terse estimate of one side of his nature, as seen in "The Canterbury Tales." We are glad to welcome the Bucknell Mirror to its long va-cant place on our table. The only literary article, "The Col-umn to the Right of the Doorway," is an interesting and amusing reminiscence of a college prank fifty years ago. An increase in amount of literary matter would greatly improve the paper. The Buff and Blue contains a number of short articles. Among them "The Assassination," while an interesting recital of an imaginary college joke, it might be much improved by a smoother style, less abrupt and " choppy " sentences. The article on "Fiction" gives a brief history of its beginning, de-velopment, present use and abuse. " Ninety-Seven," an episode of an undergraduate who was determined to win his race in an indoor meet, is well written and worth reading. The Red and Blue is always among the best journals of fic-tion on our table. The June number is no exception. Roses bloom and roses fade, Flowers bloom and die. Life is made of sun and shade, ' Laughter and a sigh. Heigh-o ! sun and shade, Laughter and a sigh. 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Article by Morris Arnold on the Arkansas Legal System during the Colonial Period. ; THE ARKANSAS COLONIAL LEGAL SYSTEM, 1686-1766 Morris S. Arnold* Except for the silence of its final letter, there is nowadays nothing very French about Arkansas. Yet before the American takeover in 1804 the great majority of the European inhabitants of the area presently occupied by the state were of French origin. There is s9me visible proof of this in the names, many now mangled beyond e:asy recognition, which eighteenth-century voyageurs and coureurs de bois gave to a good many Arkansas places and streams; 1 and there are, as well, a number of Arkansas townships which bear the names of their early French habitants .2 While these faint traces of a remote European past survive, absolutely nothing remains of the laws and customs which the ancient residents of Arkansas observed. This is no accident. It was a favorite object of Jefferson to introduce the common law of England into the vast Louisiana Territory as quickly as he could. In the lower territory he waited too late. New Orleans had had a large French population and a somewhat professionalized legal system for some time, and the civilian opposition, given time to congeal, proved to * Ben J. Altheimer Distinguished Professor of Law, University of Arkansas at Little Rock. B.S.E.E. 1965, LL.B. 1968, University of Arkansas; LL.M. 1969, S.J.D. 1971, Harvard Law School. This article is the first chapter of Professor Arnold's book, UNEQUAL LAWS UNTO A SAVAGE RACE: EUROPEAN LEGAL TRADITIONS IN ARKANSAS, 1686-1836, which will be published later this year. l. See generally Branner, Some Old French Place Names in the State of Arkansas, 19 ARK. HIST. Q. 191 (1960). The etymology of some of these names is difficult and interesting. Who would guess very quickly, for instance, that Smackover in Union County is Chemin Couvert (covered road) in disguise? Id. at 206. Tchemanihaut Creek (pronounced 'Shamanahaw") in Ashley County is a good deal easier: Chemin a haut (high road) must have been its original name. Its initial letter, one local historian has plausibly suggested, is probably attributable to "a misguided attempt to derive the name from the Indian language." Y. ETHERIDGE, HISTORY OF ASHLEY COUNTY, ARKANSAS 17, 18 (1959). Other names should on sight be instantly intelligible to a modern Parisian, though their current pronunciation might cause him consternation: Examples are the Terre Rouge (red earth) and Terre Noire (black earth) Creeks in Clark County, the L 'Angui!le (eel) River in northeast Arkansas, and La Grue (crane) township in Arkansas county. 2. Vaugine and Bogy Townships in Jefferson County, Darysaw (Desruisseaux) Township in Grant County, and Fourche La Fave (Lefevre) Township in Perry County are good examples. 391 392 UALR LAW JOURNAL [Vol. 6:391 have sufficient muscle to win a partial victory.3 As a result, as to substantive civil matters the state of Louisiana is today a thoroughly civilian jurisdiction. In the upper territory, however, by a piecemeal process beginning in 1804, the English common law was insinuated into the legal system, until, in 1816, it was at last adopted virtually wholesale by the General Assembly of the Missouri Territory.4 The purpose of this article is to explain why civilian legal institutions proved so weak in Upper Louisiana and especially in Arkansas. It turns out that the smallness and character of the European population in Arkansas was the main cause for the vulnerability of European legal norms there. The reception of the common law in Arkansas was simply one element in a more general exchange of cultures which occurred following the Louisiana Purchase. I At ten o'clock on the morning of March 12, 1682, Robert Cavalier, sieur de la Salle, having been commissioned four years earlier by Louis XIV of France to explore and take possession of the Mississippi and its tributaries, drew near the Quapaw Village of Kappa. The village was located on the right bank of the Mississippi River about twenty miles north of the mouth of the Arkansas. From the war chants emanating from the Indian town, La Salle judged that he was in for a hostile reception; so he hastily constructed a "fort" on an island opposite the village and awaited developments. Soon, however, the Quapaw chief sent the calumet of peace, and La Salle and his men went to Kappa where they were received with every possible demonstration of affection both public and private. Asked by the Quapaws for help against their enemies, La Salle promised that they could thenceforth look for protection to the greatest prince of the world, in whose behalf he had come to them and to all the other nations who lived along and around the river. In return, La Salle said, the Quapaws had to consent expressly to the erection in their village of a column on which His Majesty's arms were to be painted, symbolizing their recognition that he was the master of their lands. The Indians agreed and Henry de Tonti, La Salle's lieutenant 3. See generally G. DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF LEGAL TRADITIONS (1975). 4. 1 LAWS OF A PUBLIC AND GENERAL NATURE, OF THE DISTRICT OF LOUISIANA, OF THE TERRITORY OF LOUISIANA, OF THE TERRITORY OF MISSOURI, AND OF THE STATE OF MISSOURI, UP TO THE YEAR 1824, ch. 154 (1842). 1983) COLONIAL LEGAL SYSTEM 393 and commandant of one of the two brigades in the company, immediately caused the column to be fashioned. On it was painted a cross and the arms of France, and it bore these words: Louis the Great, King of France and of Navarre, rules. 13th of March, 1682. Tonti then conducted the column with all the French men-at-arms to the plaza of the village, and, La Salle taking up a position at the head of his brigade and Tonti at the head of his, the Reverend Father Zeno be Membre sang the hymn 0 crux, ave, spes unica. The company then went three times around the plaza, each time singing the psalm Exaudiat te Dominus and shouting vive le roy to the discharge of their muskets. They then planted the column while repeating the cries of vive le roy, and La Salle, standing near the column and holding the king's commission in his hand, spoke in a loud voice the following words in French: On behalf of the very high, very invincible, and victorious prince Louis the Great, by the grace of God, King of France and of Navarre, the fourteenth of this name, today, the 13th of March, 1682, with the consent of the nation of the Arkansas assembled at the village of Kappa and present at this place, in the name of the king and his allies, I, by virtue of the commission of His Majesty of which I am bearer and which I hold presently in my hand . , have taken possession in the name of His ffi.ajesty, his heirs, and the successors to his crown, of the country of Louisiana and of all the nations, mines, minerals, ports, harbors, seas, straits, and roadsteads, and of everything contained within the same . . . . After more musket-firing and the giving of presents the Indians celebrated their new alliance throughout the night, pressing their hands to the column and then rubbing their bodies in testimony to the joy which they felt in having made so advantageous a connection. Thus did France gain sovereignty over and ownership of Arkansas. The reason that we know all these details and more about La Salle's activities in Arkansas is that he had requested, and received, from Jacques de la Metairie, the notary who was in his company, a lengthy proces-verbal describing the events at Kappa and officially attesting their occurrence.5 This was Arkansas's first exposure to civilian legal processes. It would be almost 150 years before the influence of the civil law ceased to make itself felt there. 5. 2 P. MARGRY, DECOUVERTES ET ETABLISSEMENT DES FRAN<;:AIS DANS L'0UEST ET DANS LE SUD DE L'AMERIQUE SEPTENTRIONALE, 1614-1754 (1881). 394 UALR LAW JOURNAL [Vol. 6:391 II Arkansas Post was the first European establishment in the lower Mississippi valley. It was first located about twenty-seven miles by river from the mouth of the Arkansas on the edge of Little Prairie at what is now called the Menard Site. (See Figure 2). Settled in 1686 by six tenants of Henry de Tonti to whom La Salle in 1682 had granted the lower Arkansas as a seignory, 6 it was to serve as an Indian trading post and as an intermediate station between the Illinois country and the Gulf of Mexico.7 Tonti's plans for the place had been large indeed. In 1689 he promised the Jesuits to build a house and chapel at the Arkansas and to grant a resident priest a sizeable amount of land; while there, Tonti confidently asserted, the priest could "come and say mass in the French quarter near our fort."8 No priest in fact established himself during Tonti's ownership of the Arkansas and his French quarter and fort never materialized. When in an undated grant of land to Jacques Cardinal, one of his men at the Post, Tonti styled himself seigneur de ville de Tonti (lord of the town of Tonti),9 he was in the grips of an excessive enthusiasm. There is no evidence that the European population of the place ever exceeded six. In fact, when Joutel arrived there in 1687 there were only two Frenchmen remaining in residence; 10 and the single log house he descpbed is apparently the only structure ever erected at Tonti's Post. Joutel remarked of Tonti's two traders that "if I was joyous to find them, they participated in the joy since we left them the wherewithal to maintain themselves for some time." Indeed, he said, "they were almost as much in need of our help as we of theirs." He ridiculed the whole idea of a post at that location. "The said house," Joutel noted sarcastically, "was to serve as an 6. See Faye, The Arkansas Post ef Louisiana: French Domination, ;26 LA. HIST. Q. 633, 635-36 ( 1943). 7. Such was the view of Father Douay, a Jesuit who described Tonti's post in 1687. See M. THOMAS, THE ARKANSAS POST OF LOUISIANA, 1682-1783 (M.A. Thesis, University of California, 1948). 8. Tonti's grant to the Jesuits is quoted in 1 M. GIRAUD, A HISTORY OF FRENCH LOUISIANA 8 (J. Lambert trans., 1974). 9. The grant is translated in THE FRENCH FOUNDATIONS 396 (T. Pease & R. Werner eds., 1934). 10. Faye, supra note 6, at 735. 1983] COLONIAL LEGAL SYSTEM Henry de Tonti, lieutenant of La Salle. He founded Arkansas Post in 1686 and in the late seventeenth century styled himself seigneur de ville de Tonti. He was the first European to possess judicial authority in Arkansas. (Courtesy of the Museum of the History of Mobile). 395 396 UALR LAW JOURNAL · [Vol. 6:391 entrepot [way-station] for the French who travelled in these parts, but we were the only ones whom it so served." 11 Short of supplies and virtually inaccessible, the tiny outpost never prospered. The war with the Iroquois closed the route to Canada and made trade to and from Arkansas impossible much of the time until 1693.12 By 1696, Jean Couture, Tonti's lieutenant and commandant at the Post, had deserted to the English, 13 and in 1699 Jesuit missionaries to the Quapaws found no trace of a French settlement. 14 By then the French had evidently abandoned the Arkansas, though there may have remained behind a "few white savages thereabouts as wild as red savages." 15 However grandiose and ambitious had been the schemes of Tonti, they would soon come to seem tame. In 1717 the Mercure de France, a Paris newspaper, began advertising the riches of Louisiana to its readers: Gold and silver could be mined there "with almost no labor." The mountains situated on the Arkansas River would be explored, and there, one correspondent exuded, "we shall gather, believe me, specimens from silver mines, since others already have gathered such there without trouble." When Cadillac sensibly protested that "the mines of the Arkansas were a dream" he was promptly committed to the Bastille "on suspicion of having spoken with scant propriety against the Government of France."16 The man behind the propaganda campaign was John Law, a Scot, who owned a bank in Paris and who had in 1717 succeeded in securing for his Compagnie d'Occident a monopoly on Louisiana trade. Law's company recruited thousands of colonists to settle in Louisiana and the king granted it authority to grant land from the 11. Joutel Remarques sur /'Ouvrage de Tonti Re/at(( a la Louisiane ( 1703), Archives Service Hydrographique (Paris), vol. 115-9, no. 12 (Typescript in Little Rock Public Library). The translation in the text is mine. 12. Faye, supra note 6, at 638. 13. IBERVILLE'S GULF JouRNALS 144 at n.98 (R. McWilliams ed. 1950). 14. 18 COLLECTIONS OF THE WISCONSIN HISTORICAL SOCIETY 427, at n.37 (1908). 15. Faye, supra note 6, at 646. See also I M. GIRAUD, supra note 8, at 8: "When d'Iberville reached the Mississippi [i.e., in 1699] the post had been abandoned." Some writers are reluctant to say that the Arkansas was completely devoid of Europeans at this time. See, e.g., P. HOLDER, ARCHAEOLOGICAL FIELD RESEARCH ON THE PROBLEM OF THE LOCATIONS OF ARKANSAS POST ARKANSAS 4 (1957): "The French occupation of the general area along the lower courses of the Arkansas and White Rivers was virtually continuous from the 1680's onward." The truth is that the sources simply fail to mention any Europeans in Arkansas, except Jesuit missionaries, between 1699 and 1721. It is, however, hard to resist believing that a few hunters and trappers ventured from time to time into the area and established temporary camps there. Almost certainly no real settlement existed however. 16. Faye, supra note 6, at 653. 1983] COLONIAL LEGAL SYSTEM 397 Royal domain. Proprietors of the company's land grants (concessionaires) were given considerable latitude in choosing the spots for their settlements, since the interior of Louisiana was not well known; and they therefore exercised much discretion in locating their colonists on arrival. 17 However, the company early on had recognized the Arkansas River as an important spot, since it was thought that it might well be the best route to the Spanish mines of Mexico. Thus the company specifically directed where the Arkansas concession should be located and ordered that it be the first occupied. 18 It granted this concession to Law himself. In August of 1721, a group of Law's French engages (perhaps as many as eighty) took possession of land on Little Prairie at or near the site of Tonti's abandoned trading post. 19 (See Figure 2). Although Law was by then bankrupt and had fled France, the news did not reach Louisiana until after Jacques Levens, Law's director in Louisiana, had caused the Arkansas colony to be established under the command of some of his subordinates.20 By December of that year Bertrand Dufresne, sieur du Demaine, replaced Levens as director for Arkansas, and in March of 1722 he took possession of the concession and began an inventory of its effects and papers.21 On his arrival he found only twenty cabins and three arpents (about 2.5 acres) of cleared ground. He reported a total of about fifty men and women resident,22 tristes debris, Father Charlevoix called them,23 of Mr. Law's concession. They had produced only an insignificant harvest. Lieutenant la Boulaye was nearby with a military detachment of seventeen men.24 (See Figure 1). Despite the existence of a company store at the Arkansas concession, both the colony and the military establishment were in considerable difficulty.25 Dufresne therefore immediately released twenty of the engages from service and gave them lots to cultivate in the hopes that a better harvest of corn and wheat would be realized in 1722. In February of the following year there were only forty-one colonists remaining, divided now into two small farming communi- 17. 4 M. GIRAUD, H!STOJRE DE LA LOUISIANE FRANc_;;AISE 198 (1974). 18. Id. 19. Id. 20. Id. at 199. 21. Id. at 271. 22. Id. at 272. 23. 6 P. CHARLEVOIX, JOURNAL D'UN VOYAGE FAIT PAR ORDRE DU Roi DANS L'AMERIQUE SEPTENTRIONNALE 164 (1744). 24. 4 M. GIRAUD, supra note 17, at 273. 25. The following paragraph is based on Id. at 273-74. 398 UALR LAW JOURNAL [Vol. 6:391 ties: Fourteen men and one woman at Law's concession under Dufresne, and sixteen men, some with families, two leagues down the river with the troops. Among this latter group there lived six black slaves. 26 Benard la Harpe, while exploring the river in 1721, had predicted, or at least hoped for, a turn in the fortunes of the struggling colony, but that hope proved false and in 1727 Father Paul du Poisson, the Jesuit missionary to the Arkansas, reported that only about thirty Frenchmen remained behind.27 The military post had been abandoned two years previous. 28 Village des Arcan~as ---N Poste francais commande par le S. la Boulaie 0 - - - -, ·: ·Concession de M. Law I I L. --- ' MISSISSIPPI Figure 1 Sketch of the location of Law's colony by Dumont de Montigny,Archives Nationales, Paris, 6 JJ-75, Piece 254. All this seemed worth recounting in some detail because for generations historians of Arkansas have believed that a colony of Germans once occupied their river. Law did recruit many Germans for settlement in Louisiana, and they were destined for the Arkansas, but as soon as the news of Law's bankruptcy reached the colony 26. Recensement General des Habitans Estab!ys,,.SoteJouy Arkansas et d~s Ouvrier~ ~e la Concession cy devant Apartenant a M. Law, 18 February, 1723. (Transcnpt at Lomsiana History Center, Louisiana State Museum, New Orleans). 27. Du Poisson to Father___, translated in Falconer, Arkansas and the Jesuits in 1727-A Translation, 4 PUBLICATIONS OF THE ARKANSAS HISTORICAL ASSOCIATION 352, at 375 (1917). 28. Faye, supra note 6, at 670. 1983] COLONIAL LEGAL SYSTEM 399 in June of 1721, the Compagnie des Indies took over the direction of his concession;29 and when the time arrived to transport the German immigrants to Arkansas, the company, in an economy move, decided instead to send them to Delaire's grant in Lower Louisiana.30 In short, none of Law's Germans ever reached Arkansas. This is a pity, as the prospect of discussing, or at least imagining, a group of German immigrants living under French law on the Arkansas River was an intriguing one--one of which the facts have now unfortu-nately deprived us. · III Before 1712, the colony of Louisiana, with a population of only a few hundred, had been entirely under military rule and regular civil regulation was altogether lacking. On September 19, 1712, the Crown granted a trade monopoly to Antoine Crozat but he was given no governmental authority: As Henry Dart noted, the charter was "only an operating contract with the duties of government retained in the Crown."31 However, the charter did adopt as law for the colony "nos Edits, Ordonnances Et Coutumes Et !es usages de la Prevoste Et Vitf/omte de Paris--our edicts, ordinances, and customs, and the usages of the Provostry and Viscounty of Paris."32 The Coutume, despite its name, was actually a small code of some 362 titles first reduced to writing in 1510,33 and treating both substantive and adjective law. It was itself terse, indeed epigrammatic; but the commentary on it by the time of its adoption in Louisiana was voluminous. 34 Annotated versions of the Coutume were therefore very popular in France and in time they found their way to Louisiana.35 Also in 1712, by a separate instrument, a new and important institution was created for the colony, the Superior Council of Louisiana. 36 Modelled on the governmental arrangements already in 29. 4 M. GIRAUD, supra note 17, at 216. 30. Id. at 248. 31. Dart, The Legal Institutions of Louisiana, 3 SOUTHERN LAW Q. 247 (1918). This article also appears in 2 LA. HIST. Q. 72 (1919). 32. The charter is printed in 4 PUBLICATIONS LA. HIST. Soc. 13, at 17 (1909). 33. For a precis of its provisions, title by title, see Schmidt, History ef the Jurisprudence of Louisiana, l LA. L. J., no. l, l (1841). 34. The most useful eighteenth-century commentary is C. FERRIERE, CoMMENTAIRE SUR LA CouTUME DE LA PREVOTE ET VICOMTE DE p ARIS. It is available in several editions. 35. Dart, The Law Library ef a Louisiana Lawyer in the 18th Century, 25 REPORTS OF THE LOUISIANA BAR ASSOCIATION 12, at 22 et seq. (1924). 36. See Dart, supra note 31, at 249 et seq. See also, for some discussion of the work of this body, Hardy, The Superior Council in Colonial Louisiana, in FRENCHMEN AND FRENCH 400 UALR LAW JOURNAL [Vol. 6:391 place in other French colonies, the Council had original and exclusive jurisdiction to decide disputes arising anywhere in Louisiana. It consisted of the Lieutenant General of New France; the Intendant of the same; the Governor of Louisiana; a first councilor of the king; two other councilors; the attorney general; and a clerk. Judgments in civil cases required the concurrence of at least three members and in criminal cases at least five. The Council was originally created to exist for three years, but on September 7, 1716, it became by virtue of a Royal Edict a permanent institution.37 In 1717 a fundamental change occurred in the government of Louisiana. In that year Crozat, having lost an enormous sum under his operating charter, surrendered it, and John Law's Compagnie d'Occident was given a monopoly over trade in the colony. In addition, unlike Crozat's company, the Compagnie d'Occident was granted extensive governmental authority: It had the power to appoint the Superior Council, to name governors and military commandants, and to appoint and remove all judges. The charter also provided that "Seront tous !es juges Etbalis en tous !es d. Lieux tenus de juger suivant !es Loix Et ordonnances du Royaume Et se Con-former a la Coutume de la prevoste Et Vicomte de Paris. . . ."; that is, that "all the judges established in all the said places shall be bound to judge according to the laws and ordinances of the realm, and [shall also be bound] to conform to the customs of the Prevostry and Viscounty of Paris."38 This portion of the charter obviously provided for the reception of general French legislation and the Custom of Paris. In addition, it has been shown that subsequent French legislation, as soon as it was registered in the colony, and the legislation of the Superior Council itself, formed part of the body of colonial Louisiana law.39 The subsequent French legislation was of three distinct sorts: (a) general legislation; (b) special colonial legislation; ( c) colonial legislation passed specifically for Louisiana. 40 Two years later we hear for the first time about inferior courts for outlying portions of the colony. On September 12, 1719, the king noted the need to appoint persons to act as judges "to facilitate w A YS IN THE MISSISSIPPI v ALLEY 87 (J. McDemott ed., 1969); Micelle, From Law Court to Local Government: Metamorphosis of the Superior Council of French Louisiana, 9 LA. HIST. 85 (1968). 37. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 21-23 (19CS). 38. Id. at 48. 39. Baade, Marriage Contracts in French and Spanish Louisiana: A Study in "Notarial" Jurisprudence, 53 TUL. L. REV. 3, 9 (1978). 40. Id. 1983] COLONIAL LEGAL SYSTEM 401 the administration of justice in places distant from the place where the Superior Council holds it sessions."41 The "heads or directors" of concessions along with "other of our subjects, capable and of probity" were to "exercise both civil and criminal justice." The edict went on to provide that, even in these inferior courts, "three judges shall sit in civil matters and in criminal matters five judges . " The plan, evidently, was to have a kind of provincial council at each settlement. The king further provided that an appeal from these local tribunals would lie in all cases to the Superior Council.42 All this was being done, of course, to make ready the way for Law's colonizing schemes. In 1720 or 1721 Louisiana was for the first time divided into districts (or counties). Arkansas was one of the nine districts originally created, and a local commandant and a judge was assigned to each "to put justice with greater ease in reach of the colonists."43 Presumably, and understandably, the plan to establish local councils outside New Orleans was abandoned at this time. The sources simply fail us on the question of whether more than one person was expected to sit on local courts, but it could not have proved workable in remote places like Arkansas to assemble a multi-member judicial body. In May of 1722 the Regent issued an order creating a provincial council for Illinois, the jurisdiction of which supposedly extended from "all places on and above and Arkansas River . . . to the boundaries of the Wabash River." The commandant of the Illinois, Lieutenant de Boisbriant, was to serve as "chief and judge" of this so-called council, which in fact had only one other member.44 It thus seems to have been the plan to abolish the Arkansas district and annex its territory to its nearest northern neighbor; and the Illinois provincial council was directed "to hold its sessions at the places where the principal factories of the company shall be estab- 41. The edict is printed in 4 PUBLICATIONS LA. HIST. Soc. 63 (1908). 42. The translation in the text is mine. The entire edict is translated and discussed in Dart, supra note 31, at 261 et seq. Further discussion of this edict can be found in Dart, The Colonial Legal Systems of Arkansas, Louisiana, and Texas, 27 REPORTS OF THE LOUISIANA BAR ASSOCIATION 43 at 52 (1926). 43. Id. at 267. The other districts were New Orleans, Biloxi, Mobile, Alibamous, Natchez, Yazoo, N atchitotches, and the Illinois. 44. Translated extracts from this order appear in 2 J. WHITE, A NEW COLLECTION OF LAWS, CHARTERS, AND LOCAL ORDINANCES OF THE GOVERNMENTS OF GREAT BRITAIN, FRANCE, AND SPAIN, RELATING TO THE CONCESSION OF LAND IN THEIR RESPECTIVE COLONIES . 439-40 (1837). 402 UALR LAW JOURNAL [Vol. 6:391 lished."45 This language could have been construed to require the Illinois council to sit at the Arkansas. It is, however, very much to be doubted that such a session was ever held, and certainly it is not believeable that anyone would repair from Arkansas to Illinois to settle a grievance in 1722. It seems probable, then, that whatever judicial functions were exercised at the Arkansas were entrusted to its resident directors even after the supposed creation of the council of the Illinois. The only resident director that the Arkansas ever had was, as we saw, Bertrand Dufresne, sieur du Demaine, who arrived at the Post March 22, 1722, and he was evidently the judge from that point on. Prior to that, Jacques Levens had been director, but as he never took up residence in Arkansas we have to presume that if judicial functions were undertaken by anyone, it was by one or more of the three subordinates to whom Levens had entrusted the management of the struggling colony: Jean-Baptiste, Menard, Martin Merrick, and Labro.46 When Dufresne left the Arkansas around 1726 we can hardly guess the means resorted to for the settlement of disputes. Probably Father Paul du Poisson, the Jesuit missionary resident from 1727 to 1729, used his good offices to maintain order among the approximately thirty Frenchmen who had remained behind.47 It seems probable, therefore, that Arkansas's first sustained exposure to European legal proceedings and principles occurred in the period during which Law's Company held sway in Louisiana. Tonti's seventeenth-century feudal seignory no doubt carried with it the right to render justice. Though his charter from La Salle has not as yet come to light,48 other conveyances of La Salle's are extant; and in them he gave his grantees judicial power over small cases ("low justice" this is called) while specifically reserving important cases ("high justice") to himself. (Cases of the latter type he directed to be heard by the judge "who shall be established at Fort St. 45. Id. at 440. 46. 4 M. GIRAUD, supra note 17, at 272. Menard left the Arkansas in 1722 (jd., 275) and was in New Orleans in 1720. Index to the Records efthe Superior Council of Louisiana, 4 LA. HIST. Q. 349 (1921). 47. Dufresne appears in the Arkansas census of January !, 1726; but on October 21, 1726, he is described as a "settler in Arkansas, but now domiciled with Mr. Traguidy [in New Orleans]." Index to the Records of Superior Council of New Orleans, 3 LA. HIST. Q. 420 (1920). In 1727 there was no director at the Arkansas, as Father Du Poisson tells us that he took up evidence in "the India Company's house, which is also that of the commandants when there are any here . " See Falconer, supra note 27, at 371. 48. For a charter from Tonti to Jacques Cardinal, one of his men at the Arkansas, see THE FRENCH FOUNDATIONS, supra note 9, at 396. 'Fhla is tlae Olll)' grant gf Tgati's eKtastF 1983] COLONIAL LEGAL SYSTEM 403 Louis.")49 We do not know whether Tonti's charter contained identical provisions but it certainly would have contained similar ones. But during the fifteen years or so that Tonti held the right to dispose of certain cases arising in his seignory, it hardly seems credible that he or his deputies ever held anything resembling a court, or even executed many instruments or documents.50 IV In 1731 the Compagnie d'Occident surrendered its charter to Louis XV, and for the rest of the period of French dominion Louisiana was a Crown Colony. Late that same year a military garrison was re-established in Arkansas; it consisted of twelve men commanded by First Ensign de Coulange and was located again on the edge of Little Prairie. 51 (See Figure 2). It was apparently during the reorganization of the colony in 1731 that civil and military authority at the outposts of Louisiana were combined in the commandant of the garrison-an arrangement that would survive into the Spanish period and even for a short time during the American regime. Part of a post commandant's civil authority was to act as notary and judge. The exact scope of his judicial jurisdiction during the French period is obscure, there being no document of which I am aware which describes it specifically. Parkman, writing of conditions in the Illinois in 1764, says that the "military commandant whose station was at Fort Chartres on the Mississippi, ruled the Colony with a sway as absolute as that of the Pasha of Egypt, and judged civil and criminal cases without right of appeal."52 Captain Phillip Pittman, an English engineer and Mississippi explorer who was writing at almost exactly the same time, gives a slightly different version. According to him, the Illinois commandant "was absolute 49. Concession in fee by La Salle to Pierre Prudhomme, in id. at 32. 50. When Tonti petitioned for confirmation of his charter, he was evidently refused. The petition is printed in E. MURPHEY, HENRY DE TONTI, FUR TRADER OF THE MISSISSIPPI 119 (1941). It is possible that La Salle did not have the power to make permanent grants and that may be the reason that Tonti needed confirmation. The Letters Patent of May 12, 1678, giving La Salle the right to explore "the western part of New France" in the king's behalf, gave him the power to build forts wherever he deemed them necessary; and he was "to hold them on the same tern1s and conditions as Fort Frontenac." See T. FALCONER, ON THE DISCOVERY OF THE MISSISSIPPI 19 (1844). La Salle said expressly in 1683 that this allowed him to "divide with the French and the Indians both the lands and the commerce of said country until it may please his majesty to command otherwise . " See THE FRENCH FoUNDATio~;upra note 9, at 43. The language is ambiguous, but on one permissible reading it indicates a specifically reserved power in the king to revoke grants made by La Salle. 51. Faye, supra note 6, at 673. 52. Quoted in Dart, supra note 31, at 249. 404 UALR LAW JOURNAL [Vol. 6:391 in authority, except in matters of life and death; capital offences were tried by the council at New Orleans."53 Of course, the Arkansas commandant's judicial jurisdiction was not necessarily as extensive as that possessed by the commandant of the Illinois. He may very well have been subordinate to the Illinois commandant during most of the French period. Some fitful light is thrown on the judicial authority of the Arkansas commandant by an interesting proceeding which took place at the Post in 1743.54 In October of that year, Anne Catherine Chenalenne, the widow of Jean Francois Lepine, petitioned Lieutenant Jean-Francois Tisserant de Montcharvaux, whom she styled "Commandant for the King at the Fort of Arkansas," asking him to cause an inventory and appraisal to be made of the community property in her possession. The object in view was to make a distribution to the petitioner's son-in-law and daughter who had the previous May lost all their goods when attacked by Chickasaws on the Mississippi not far below the mouth of the Arkansas. They had narrowly escaped with their lives.55 Widow Lepine had decided to make a distribution to "her poor children, at least to those who have run so much risk among the savages." She was preparing to marry Charles Lincto, a well-to-do resident of the Post, and she wished to dissolve the old community which by custom had continued after her husband's death in her and their children. The commandant informed Madame Lepine that on 26 October, 1743, he would inventory the "real and personal property derived from the marital community" and would bring with him two persons to look after the widow's interest and two to represent the children. The idea was that each party in interest should have independent appraisers present to insure the impartiality of the inventory and evaluation. De Montcharvaux in the presence of these and other witnesses caused the inventory to be made on the appointed day. The estate was fairly sizeable, being valued at 14,530 /ivres and 10 sols. It contained a great deal of personalty, including four slaves, a number of animals, 1600 pounds of tobacco, and notes and accounts receivable; the realty noted was "an old house" with three small outbuildings. Interestingly, no land was mentioned. There are two possible explanations for the absence of land in S3. P. PITTMAN, THE PRESENT STATE OF THE EUROPEAN SETTLEMENT ON THE M1ss1sSIPPI S3 (1770) (Reprinted with intro. by R. Rea 1973). S4. The relevant documents are translated in Core, Arkansas through the Looking Glass ef 1743 Documents, 22 GRAND PRAIRIE HISTORICAL SOCIETY BULLETIN 16 (1979). SS. This incident is reported and discussed in Faye, supra note 6, at 677-78. 1983] COLONIAL LEGAL SYSTEM 405 the inventory. One is that land may not have been actually granted to Arkansas settlers but only given over temporarily to their use. The other possibility is that the land on which the house was built had belonged to Lepine before the marriage and had remained his separate property under his marriage contract or under the general provisions of the Coutume de Paris. The Coutume, which, as we have seen, was in force in French Louisiana, provided that all movables (personalty), belonging to a husband or wife, whenever acquired, became part of the community; but only certain immovables (realty) acquired after the marriage were so treated.56 This rule could be altered by contract, but in Louisiana, as in France, the Coutume was often specifically incorporated into marriage contracts by future spouses in defining the regime that would rule their property; 57 and if there was no contract provision creating a property regime, the Coutume of course automatically applied. The inventory is said to have been made "Pardevant nous Jean Francois Tisserant Ecuyer Sieur Demoncharvaus Commandant pour le Roy au Fort des Arkansas." The formulapardevant nous ("before us") is Parisian notarial boiler-plate and indicates that the commandant was acting in his surrogate notarial capacity. To an American common lawyer, the notary is not a member of the legal profession, not even a paralegal. But in seventeenth- and eighteenth-century France he enjoyed a much more elevated status, as indeed he still does in that country. Originally an official of the medieval European ecclesiastical courts, the notary developed into a noncontentious secular legal professional in France. In England, partly because the canon and secular laws were not on speaking terms, "the notarial system never took deep root."58 For one thing, an important aspect of the notary's duties, his authority to "authenticate" documents, was of little use to the English. The whole notion of a state-sanctioned authenticator of private acts was entirely foreign to the common law: Whereas in France we see notaries "making" and "passing" contracts, the common law left that to the parties. The state was very much in the background in England, and was called upon only to enforce obligations that arose by force of nature. The other aspect of the French notary's duties, the drafting of instruments, conveyancing, and the giving of legal advice, was per- 56. See Baade, supra note 39, at 7, 8. 57. Id. at 25. 58. l F. POLLOCK & F. MAITLAND, A HISTORY OF ENGLISH LAW 218 (2d ed., reissued with intro. by S. Milsom 1968). 406 UALR LAW JOURNAL [Vol. 6:391 formed by the regular legal profession in England. It is true that there was a scriveners' company organized in London in the sixteenth century which was granted a charter in the reign of James l.59 Members were empowered to draft legal documents, especially obligations (or bonds), and they gave a certain amount of low-level legal advice particularly in commercial and banking matters. 60 The few secular notaries who practiced in London at that time concerned themselves mainly with drafting documents relevant to international trade, and they were members of this company.61 But in the eighteenth century the company lost its effort to keep commonlaw attorneys from competing, and in 1804 parliament made conveyancing the monopoly of the regular legal profession.62 In contrast, the French notary's duties by the eighteenth century had come to include not only the familiar ones of administering oaths, taking acknowledgements, and giving "authenticity" to "acts" of private persons by attesting them officially, but they also ran generally to the drafting of documents, conveyancing, and the giving of practical legal advice.63 It is not surprising, therefore, that notaries would 59. See 12 w. HOLDSWORTH, A HISTORY OF ENGLISH LAW 70 (1938). See generally on the notary in England, Gutteridge, The Origin and Development ef the Profession of Notaries Public in England, in CAMBRIDGE LEGAL ESSAYS 12 (1926). 60. 12 w. HOLDSWORTH, supra note 59, at id. 61. 5 w. HOLDSWORTH, supra note 59, at 115 (3d ed. 1945). 62. 12 w. HOLDSWORTH, supra note 59, at 71-72; T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 227-28 (5th ed. 1956). 63. As draftman of wills, marriage contracts, and conveyances, Mons. le Notaire has survived in France as a much respected person, especially in the country villages. He is a general non-forensic legal practitioner, his part in the legal scheme "being confined to voluntary as distinct from contentious jurisdiction." Brown, The office of Notary in France, 2 INT'L & COMP. L. Q. 60, at 64 (1953). Indeed, the French notary is close to the equivalent of the English solicitor, except for the latter's participation in litigation. Thus one modern-day commentator opined that "a solicitor would feel much at home in the etude of the French notary, though he would be surprised, and perhaps disappointed, by the cordiality of the morning post." Id. at 71. Today in Louisiana as well the notary enjoys considerable powers. See Burke & Fox, The Notaire in North America: A Short Study of the Adaptation of a Civil Law Institution, 50 TUL. L. REV. 318, at 328-32 (1975); Brosman, Louisiana-An Accidental Experiment in Fusrim, 24 TUL. L. REV. 95, 98-99 (1949). The Louisiana notary has the power "to make inventories, appraisements, and petitions; to receive wills, make protests, matrimonial contracts, conveyances, and generally, all contracts and instruments of writing; to hold family meetings and meetings of creditors; . to affix the seals upon the effects of deceased persons and to raise the same." LA. STAT. ANN.§ 35:2 (1964). When the Louisiana legislature defined the practice of law, and prohibited all but licensed attorneys from engaging in it, it therefore remembered to except acts performed by the notary which were "necessary or incidental to the exercise of the powers and functions of (his] office." LA. STAT. ANN. § 37:212(B) (1974). A walk through modern-day New Orleans will reveal a number of signs proclaiming the existence of "Law and Notarial Offices", a combination having an odd ring in the ears of an American common lawyer. The Louisiana notary is simply "a different and 1983] COLONIAL LEGAL SYSTEM 407 make an appearance in eighteenth-century Louisiana. In New Orleans, of course, there was much work for them, but there were also provincial notaries operating in Biloxi, Mobile, Natchitoches, Pointe Coupee, and Kaskaskia.64 Since De Montcharvaux acted as notary for the Lepine inventory, it is reasonably clear that there was no provincial notary resident at the Arkansas at that time. This comes as no surprise since in 1746 there were at the Post only twelve habitant families, ten slaves, and twenty men in the garrison, 65 hardly a sufficient European population to require or attract a law-trained scrivener. When it was time to have their marriage contract made, the widow Chenalenne and her future spouse executed it in New Orleans. No doubt there was available there legal advice on which they might more comfortably rely.66 Besides, there was at that time no resident priest at the Post to perform the marriage. v On May 10, 1749, an event occurred that considerably reduced the European population of Arkansas and also made it difficult to attract settlers there for some time. On that day, the Post was attacked by a group of about 150 Chicaksaw and Abeka warriors. Their coming was undetected67 and thus they caught the small habitant population altogether unaware. They burned the settlement, killed six male settlers, and took eight women and children as slaves.68 The census taken later that year shows, not surprisingly, that the population had decreased since the previous census. Seven more important official person than is the notary public in other jurisdictions of the United States." Brosman, supra at 98. 64. See Baade, supra note 39, at 12. 65. Memoire sur /'Eta! de la Colonie de la Louisiane en 1746. Archives des Colonies, Archives Nationales, Paris [hereinafter cited as ANC], Cl3A, 30:242-281, at 249, (Typescript of original document available at Little Rock Public Library). As the average family size in Arkansas in the middle of the eighteenth century was about four, this would put the number of habitant whites at the Post at about forty-eight. 66. For an abstract of this marriage contract, see Records o.f the Superior Council o.f Louisiana, 13 LA. HlsT. Q. 129 (1944). 67. However, the habitants may have had a warning that something was afoot, for on May l, Francois Sarrazin had written from Arkansas that "two savages have killed a man and a woman and burnt a man in the frame." Records efthe Superior Court o.f Louisiana, 20 LA. HlsT. Q. 505 (1937). This incident may have been connected with the attack nine days later. 68. Vaudreuil to Rouille, September 22, 1749, calendared in THE VAUDREUIL PAPERS 59-60 (B. Barron ed., 1975). See also Faye, supra note 6, at 684 et seq. W. BAIRD, THE QUAPAW INDIANS: A HISTORY OF THE DOWNSTREAM PEOPLE 34 (1980), gives the number taken as slaves as thirteen. 408 UALR LAW JOURNAL [Vol. 6:391 men, eight women, eight boys, and eight girls remained, a total of only thirty-one white habitants at the Poste des Akansa .69 Nor did all this mark an end to serious trouble. When in June of 1751 First Ensign Louis-Xavier-Martin de Lino de Chalmette, the commandant of the Post, went uninvited to New Orleans to consult with the governor, his entire garrison of six men took the opportunity to desert. 70 Things were obviously at a critical juncture. When later in 17 51 Lieutenant Paul Augustin le Pelletier de la Houssaye took command at Arkansas he found there a post recently rebuilt by its habitants and _voyagij,tfrs and probably already relocated to a spot ten or twelve miles upriver at the edge of the Grand Prairie. (See Figure 2). It is clear that Governor Vaudreuil had determined to hold the Arkansas even if the cost proved high, for he assigned to De La Houssaye a large company of forty-five men.71 The lieutenant was also authorized to build a new fort; government funds being lacking, he undertook the construction at his own expense in return for a five-year Indian trade monopoly.72 This new beginning could, in the nature of things, have given only a slight lift to the prospects for sustained settlement in the Arkansas country. Late in 1752 Governor Vaudreuil was informed that the Osages had attempted an attack on Arkansas Post but had failed. 73 While this indicates a stability of sorts for the l?ost, thanks no doubt to the size of the new garrison, still the perceived danger must have been so high as to discourage all but the most intrepid from taking up residence at the Arkansas. Mentions of Arkansas in the legal records tend to emphasize the dangerousness of the place. For instance, a couple from Pointe Coupee, on the verge of leaving for a hunting trip to the White River country, thought it best to deed their property to a relative, with the stipulation that the deed was to be void if they returned.74 It is not surprising, therefore, that even as late as 1766, the last year of French dominion, only eight habitant families, consisting in all of forty white persons, were resident at Arkansas Post.75 69. Arkansas Post Census, 1749, Loudon Papers 200, Huntington Library, San Marino, CA. There were also fourteen slaves resident at the post and sixteen voyageurs who had returned after their winter's work. There were five hunters on the White River and four on the St. Francis. Thirty-five hunters had failed to return from the Arkansas River. 70. Faye, supra note 6, at 708. 71. Id. at 211. 72. Id. 73. THE VAUDREUIL PAPERS, supra note 68, at 136. 74. Index to the Records of the Superior Council of Louisiana, 24 LA. HlsT. Q. 75 (1941). 75. See Din, Arkansas Post in the American Revolution, 40 ARK. HIST. Q. 3, at 4 (1981). 1983] COLONIAL LEGAL SYSTEM 409 All of these difficulties, and others, made for a place in which it might be regarded as too polite to expect the presence of much which corresponds to a legal system. In addition, political exigencies sometimes interfered to such an extent that the application of even-handed legal principle became inexpedient and thus entirely impracticable. For instance, the continued existence of the Arkansas settlement depended heavily on the loyalty of the Quapaws and their wishes were therefore relevant to any important decision made there. Their influence could extend even to the operation of the legal system as the following incident demonstrates. On 12 September, 1756, a meeting was held in the Government House in New Orleans to hear an extraordinary request from Guedetonguay, the Medal Chief of the Quapaws.76 His tribe had captured four deserters from the Arkansas garrison and had returned them; but the chief had come on behalf of his nation to ask Governor Kerlerac to pardon the soldiers. One of those captured, Jean Baptiste Bernard, in addition to having deserted, had killed his corporal Jean Nicolet within the precincts of the fort. The chief, obviously a great orator, said that he had come a long distance to plead for the soldiers' lives despite the heat and the demands of the harvest; and in his peroration he said that his head hung low, hi~ eyes were fixed to the ground, and his heart wept for these men. He knew, he explained, that if he had not come they would have been executed, and this was intolerable to him because he regarded them as his own children. He recited many friendly acts of the Qua paws to prove the fidelity of his people to the French. Among them was the release of six slaves (perhaps Chicaksaws captured by the Quapaws) "who would have been burned" otherwise, and the recent capture of five Choctaws and two trespassing Englishmen. He himself, he noted, had recently lost one son and had had another wounded in the war against the Chickasaws; and he . counted this "a mark of affection for the French." In recompense he asked for the pardon of the soldiers. The chief added that this was the only such pardon his nation had thus far requested, and he promised never to ask again. He did not doubt that Kerlerac, "the great chief of the French father of the red men," charged to govern them on behalf of "the great chief of all the French who lived in the 76. What follows is based on a memorandum entitled "Harangues faites dans /'assemb/ee tenue a /'hotel du gouvernment cejourdhui, 20 Juin 1756," found in ANC, Cl3A, 39:177-180 (Transcript at Little Rock Public Library). The translations are mine. 410 UALR LAW JOURNAL [Vol. 6:391 great town on the other side of the great lake," would listen and do the just thing. Guedetonguay left his best argument for last. He maintained vigorously that, under his law, any criminal who managed to reach the refuge of the Cabanne de Valeur where the Quapaws practiced their religious rites was regarded as having been absolved of his crime. It was their custom everywhere that the chief of the Cabanne de Valeur "would sooner lose his life than suffer the refugee to undergo punishment for his crime." Evidently the soldiers were claiming this right; and Ouyayonsas, the chief of the Cabanne de Valeur, was there to back them up. This last argument was an excellent one because it called upon the French to recognize an established Indian usage not dissimilar from the European custom of sanctuary. And the argument carried with it a threat of violent reaction if the custom were not allowed. Kerlerac answered the chief that he was not unmindful of the past services of the Quapaws, nor was he ungrateful for them. "But," he said, "I cannot change the words declared by the great chief of all the French against such crimes, and . . . it would be a great abuse for the future" to pardon the soldiers. So, he continued, "despite all the friendship that the French have for you and your nation, these men deserve death." The great chief stood for a long time with his head down and finally answered ominously that he could not be responsible for the revolutions which the chief of the privileged house might stir up-revolutions which he said ''would not fail to occur." The argument continued and the governor offered to grant the chief "anything else except these four pardons." But Guedetonguay stubbornly maintained that "the sole purpose of his journey was to obtain the pardon of the four men." In the end the Governor extracted from the Quapaw chiefs "publicly and formally their word . . . that they would in the future deliver up all deserting soldiers as malefactors or other guilty persons without any restriction or condition whatsoever, and that . pardons would be accorded at the sole discretion of the French." No immediate decision was reached by the Governor, but later that day some of his advisors, having reflected on what they had heard, reckoned "that a refusal of the obstinate demands of these chiefs . . . the faithful allies of the French would only involve the colony in troublesome upheavals on the part of the said nations who have otherwise up to the present served very faithfully." They con- 1983] COLONIAL LEGAL SYSTEM 411 eluded that "saving a better idea by Monsieur le Gouverneur it would be dangerous, under all the present circumstances, not to satisfy the Indians with the pardons which they demanded." The governor took the advice but evidently did not write to Berryet, the French Minister of the Marine, for some time to tell him about it. From the comfort of Versailles it was easy for Berryet to pick at Kerlerac's decision.77 In responding to Kerlerac, Berryet first made the point that Bernard's case was different from that of the other captured soldiers since he was accused of homicide in addition to desertion. Then, too, the minister had a lot of questions. Could not the difference in Bernard's case have been urged on the Arkansas chiefs to get them to relent in his case? Where was the record of the legal proceedings which should have been conducted relative to the killing? If this was a wilfull murder the pardon had been conceded too easily. "It would be dangerous," the minister warned, ''to leave such a subject in the colony, not only because he would be an example of impunity but also because of new crimes that he might commit." (The arguments of general and specific deterrence are not very recent inventions.) Finally, the governor was sternly admonished "not to surrender easily to demands of this sort on the part of the savages . If on the one hand it is necessary, considering all the present circumstances, to humor the savages, it is also necessary to be careful of letting them set a tone that accords neither with the king's authority nor the good of the colony." Nevertheless, the minister talked to the king and he ratified the governor's decision. Writs of pardon were therefore issued under the king's name for each of the Arkansas soldiers. Because the homicide committed by Bernard was not a military crime and was cognizable therefore by the Superior Council of Louisiana, his pardon was directed to the Council. Interestingly, though Berryet admitted knowing nothing of the circumstances surrounding the killing, the pardon recited that a quarrel had arisen between Bernard and Nicolet, that they had beaten each other, that Bernard : "had had the misfortune to kill the said Nicolet," and that the death "had occurred without premeditated murder."78 Thus Louis XV pardoned Jean Baptiste Bernard for killing by mischance when there was no evidence adduced as to the facts resulting in Nicolet's 77. What follows is based in Berryet's letter to Kerlerac and Bobe Descloseaux dated July 14, 1769. ANC, B, 109:487-88 (Transcript at Little Rock Public Library). The translation is mine. 78. The pardon (brevet de grtJce) was enclosed in the letter and is ANC, B, 109:489 (Transcript at Little Rock Public Library). The translation is mine. 412 UALR LAW JOURNAL [Vol. 6:391 death. The decision was generated simply by a desire to accommodate an important ally. Faithful adherence to legal principle sometimes had to take a back seat to the more compelling demands of politics. VI Father Louis Carette, the Jesuit missionary who came to the Post of Arkansas in 1750, nevertheless attempted to bring some order to the legal affairs of the place. As he noted in a procuration (power of attorney) dated at Arkansas in 1753, he was "authorized by the king to make in every post where there is not a Notary Royal all contracts and acts . "79 There is no evidence that he had any formal legal training, but he was a Jesuit, and thus a learned man, one of a handful of such who would make their residence in eighteenth- century Arkansas. The 1753 procuration is itself of some interest, as it sheds light on how litigants whose cases were technically beyond the jurisdiction exercised by the Arkansas commandant (whatever that was) might have had their cases heard if they wanted to resort to regular methods of dispute settlement. As incredible as it seems, it is probable that the only court of general jurisdiction in the entire colony was the Superior Council of Louisiana. Now, in 1763 La Harpe said that it was a two-week boat trip from the Arkansas to New Orleans, and six to eight weeks back.80 Obviously, the procuration was an important device for people in remote posts like Arkansas, for it enabled them through their attorneys, in the language of the document under discussion, "to act . . . as though they were personally present."81 Convoys or individual vessels travelled down the Mississippi frequently enough to make this means of tending to legal affairs more tolerable than it might otherwise have been. In this case, the attorney chosen was Commandant de la Houssaye, and he was deputed to act in a probate matter at Pointe Coupee for Etienne de Vaugine de Nuysement and his wife Antoinette Pelagie Petit de Divilliers. An interesting feature of procurations which increased their utility and flexibility was that they were assignable. This feature came in handy in this instance since De La Houssaye, having 79. Index to the Records of the Superior Council of Louisiana, 22 LA. H!sT. Q. 255 (1939). 80. La Harpe to Chosseul, August 8, 1763, ANC, Ci3B, 1 (Typescript in Little Rock Public Library). 81. Records, supra note 79, at id. 1983] COLONIAL LEGAL SYSTEM 413 been detained at the Arkansas due to illness, simply transferred the power of attorney to a member of the Superior Council "to act in my place as myself."82 Perhaps one of the reasons that Carette had acted as notary in this instance was that the only other person in the little community authorized so to act, the commandant, was a party to the instrument. But in the French period priests were given general notarial powers and could act even in the absence of circumstances disabling the commandant. For instance, Carette acted as notary, and thus probably draftsman, for a marriage contract in which the commandant was not interested. This was the marriage contract of Francois Sarrazin and Francoise Lepine, executed at Arkansas Post on January 6, 1752. Marriage contracts have no exact parallel in common-law practice, and it thus seems worthwhile, before discussing the particulars of the Sarrazin-Lepine contract, to devote some time to their explanation and description. In a recent seminal study, Professor Hans Baade has outlined the provisions which one typically finds in marriage contracts executed in accordance with eighteenth-century Parisian notarial practice.83 The first and invariable undertaking by the future spouses was a promise to celebrate their marriage in facie ecc! esiae. The parties would then choose the regime which would govern their property during the marriage. Next would come a declaration that the ante-nuptial debts of the parties were to remain their separate obligations; this was followed by a disclosure of the parties' assets, a requirement for the validity of the previous provision. The dowry brought to the marriage by the wife was next recited; and delineating preciput, the right of the spouse to specific property in the event of dissolution of the community, frequently followed. Finally came the donation clause, usually a reciprocal grant of all or part of the predeceasing spouse's estate. In Louisiana, this donation, in order to be valid, had to be registered with the Superior Council in New Orleans. An inspection of the Sarrazin-Lepine marriage contract reveals that it very clearly drew on these French notarial precedents, and it reflects, moreover, an awareness of the practical requirements of the Louisiana registration provisions. It contained a promise to celebrate the marriage in regular fashion, the creation of a community property regime, a clause stating the amount of the wife's dowry, a 82. Id. 83. What follows is taken from Baade, supra note 39, at 15-18. 414 UALR LAW JOURNAL [Vol. 6:391 mutual donation to the survivor of all property owned at death, and an undertaking to have the contract registered in New Orleans.84 While there was no clause dealing with ante-nuptial debts and no mention of preciput, it is quite obvious that the good Jesuit knew more than a little about French notarial practice, and may well have had at his disposal a form book on which he could draw. He was, for all practical purposes, for a time the "lawyer" of the post as well as its cure. Before we leave this interesting document there is an aspect of it which bears detailed attention. The property regime chosen by the parties included in the community "all property, movable and immovable"85-as common lawyers would say, all property, both personal and real. In this respect the contract departs from the Custom of Paris which included in the community all movables but only certain immovables (conquets) acquired after marriage. 86 Parties were allowed in Louisiana to contract almost any property arrangement they wanted, 87 and Sarrazin and Lepine had elected a somewhat unusual variety of community. Curiously, however, the contract reckoned that this regime was "in accordance with the custom received in the colony of Louisiana." A few months after the execution of this contract Commandant de la Houssaye wrote to the governor to say that Monsieur Etienne V augine, a French officer, was of a mind to marry Madame de Gouyon, the commandant's sister-in-law, and he sent along "the proposed conditions for the contract of marriage."88 This was a draft of the contract, as De La Houssaye asked the governor to pass "/'exemplair du contra!" along to the New Orleans notary Chantaloux if the governor decided to give his permission for the marriage. Chantaloux was "to make it as it should be."89 Three weeks later the governor wrote to say that the contract would be sent back soon and that Chantaloux had left it intact except for one reasonably minor alteration.90 In 1758 Father Carette, dismayed by the irreligious inclination of his flock, left the Arkansas and no replacement was sent. In 17 64, 84. Records of the Superior Council of Louisiana, 25 LA. HlsT. Q. 856-57 (1942). 85. Id. at 856. 86. Baade, supra note 39, at 15. 87. Id. 88. La Houssaye to Vaudreuil, Dec. l, 1752, LO 410, Huntington Library, San Marino, CA. 89. Id. 90. THE v AUDREUIL PAPERS, supra note 68, at 152. 1983] COLONIAL LEGAL SYSTEM 415 Captain Pierre Marie Cabaret Detrepi, commandant at the Arkansas, after Madame Sarrazin had found herself widowed, passed a second marriage contract for her which was extremely unsophisticated and rudimentary.91 It contained only a promise to marry regularly and a mutual donation. Perhaps the good widow had by this time tired of long-winded formalities. Just as likely, the Post was feeling the absence of Carette's drafting skills. VII As tiny, remote, and inconsequential as the Arkansas settlement was, then, it is nevertheless clear that at least some of its people were part of the time adherents to French legal culture. Of course almost everyone who lived at the Post during the period of French domination was either a native of France or French Canadian; and by the end of the French period a substantial number of native Louisianans were there. It is most interesting to find the survival of civilian legal form in so remote an outpost of empire. Obviously, not all of Arkansas's residents lapsed into a kind of legal barbarism. There were, however, circumstances at work which would make it impossible for some time to establish a community which could be expected to value the observance of legal niceties very highly. As we have already seen, the Post could not have been very attractive to the more civilized settler owing to its dangerous location. Arkansas Post, moreover, over the years experienced an extreme physical instability since it was necessary to relocate it several times due partly to flooding. (See Figure 2). The Arkansas River was in the eighteenth century "a turbulent, silt-laden stream, subject to frequent floods which were disastrous along its lower course."92 This proved to be a considerable disincentive to settlement. Add to that the enormous expanse occupied by the alluvial plain of the Mississippi and the difficulty becomes plain enough. Almost any site within thirty miles of the mouth of the Arkansas carried with it a considerable risk of floods. Law's colony, on the Arkansas twenty-seven miles or so from its mouth, was said in 1721 to be "in a fertile sector but subject to floods."93 The success of the attack by the Chickasaws in 1749, when the Post was at the same 91. Records of the Superior Council of Louisiana, Feb. 11, 1764, Louisiana History Center, Louisiana State Museum, New Orleans. 92. P. HOI.DER, supra note 15, at 152. 93. 4 M. GIRAUD, supra note 17, at 273 (1974). 416 UALR LAW JOURNAL [Vol. 6:391 location, was made possible by the absence from the neighborhood of the Quapaws: Because of recent floods they had abandoned their old fields for a more promising place upstream.94 This place, called Ecores Rouges (Red Bluffs) by the French, was about thirty-six miles from the mouth of the Arkansas and was at the present location of the Arkansas Post Memorial.95 After the attack, the Post was moved to join the Indians at Ecores Rouges so as to provide for mutual protection.96 The new spot was free from floods but proved unsatisfactory from a strategic standpoint because of its distance from the Mississippi. The location delayed convoys and Governor Vaudreuil expressed the view that "a post on the Mississippi would be more practical."97 Therefore in 1756 the Post was moved back downriver to about ten miles above the mouth. But the inevitable soon occurred. In 1758 heavy flooding, graphically described in a letter of Etienne Maurafet Layssard the garde magasin (storekeeper) of the Post, caused heavy damage, almost undoing the work of builders and architects who had been at work for the better part of a year. The houses were saved by virtue of being raised on stakes against such a day as this; but the habitants' fields, everything but Layssard's garden for which he had providently provided a levee, were entirely inundated.98 It was in fact a small enough loss. From the beginning, and understandably, the attempt to make a stable agricultural community of the Arkansas had failed miserably. There is no doubt that the European population of Arkansas during the French period consisted almost entirely of hunters and Indian traders. In 1726 the reporter of the Louisiana census remarked of the Arkansas that "all the habitants were poor and lived only from the hunting of the Indians." 99 A 1746 report said of the twelve Arkansas habitant families 94. Faye, supra note 6, at 717-19. 95. See figure 2. 96. For details, see Appendix II to my forthcoming book, UNEQUAL LAWS UNTO A SAVAGE RACE; EUROPEAN LEGAL TRADlTIONS IN ARKANSAS, 1686-1836. 97. THE VAUDREUIL PAPERS, supra note 68, at 118. 98. Faye, supra note 6, at 718-19. A detailed description of the repairs made in the summer of 1758, evidently necessitated by these floods, is in ANC, CBA, 40:349-50 (Typescript in Little Rock Public Library). In addition to making repairs, the builders constructed a house 26 feet long and 19 wide just outside the fort for the Indians who came there on business. It was of poteaux en terre construction, was covered with shingles, and was enclosed with stakes. The report describing the renovation and construction work of 1758 is signed by Denis Nicol~s Foucault, chief engineer of the Province of Louisiana. 99. ANC, GI, 464 (Transcript at Little Rock Public Library). 1983] COLONIAL LEGAL SYSTEM • DeWitt ARKANSAS COUNTY • Dumas I I I 0 1. 1686-1699; 1721-1749 N 1 DESHA COUNTY T I I 4 I 8 mi Figure 2 Locations of Arkansas Post, 1686-1983 2. 1749-1756; 1779-1983 3. 1756-1779 JB Based on a map drawn by John Baldwin which appeared in Arnold, The Relocation of Arkansas Post to Ecores Rouges in 1779, 42 ARK. HIST. Q. 317 (1983). Used with permission of the Arkansas Historical Association. 417 418 UALR LAW JOURNAL [Vol. 6:391 that "their principal occupation is hunting, curing meat, and commerce in tallow and bear oil." As for cultivating the soil, the same source reported that the habitants grew "some tobacco for their own use and for that of the savages and voyageurs." 100 In 1765 Captain Phillip Pittman, an Englishman, said that there were eight families living outside the fort who had cleared the land about nine hundred yards in depth. But, according to him "on account of the sandiness of the soil, and the lowness of the situation, which makes it subject to be overflowed," their harvest was not enough even to supply them with their necessary provisions. Pittman noted that "when the Mississippi is at its utmost height the Lands are overflow' d upwards of five feet; for this reason all the buildings are rais'd six feet from the ground." Thus the residents of the Arkansas, he said, subsisted mainly by hunting and every season sent to New Orleans "great quantities of bear's oil, tallow, salted buffalo meat, and a few skins." 101 Both Layssard102 and Father Watrin103 hint that the discouragement produced by the frequent flooding contributed to Father Carette's decision to leave. However that may be, it must be clear that during the period of French dominion the Post did not provide fertile soil for either crops or religion. Would regular bourgeois legal procedures have generally been afforded a more cordial acceptance? Even absent direct evidence, this would in the abstract seem most unlikely. Unsafe, unstable, and uncomfortable, the Arkansas Post of Louisiana during the period of French dominion must surely also have been largely unmindful of bourgeois legal values. It is true, as we have seen, that some of the Post's residents tried to maintain a connection between their remote outpost and European legal culture. But the few legal records that chance has allowed to come down to us from the French period are remarkable not only for their small number but also for the social and economic characteristics they reveal of the people who figured in them. They were an elite, related by marriage and blood, struggling under the difficult circumstances of their situation to participate in regular le- 100. Memoire, supra note 65 (Transcript at Little Rock Public Library). 101. P. PITTMAN, supra note 53, at xliv, 40-41. 10+. See ANC, Cl3A, 40:357 (Transcript in Little Rock Public Library). Layssard there remarks that the inhabitants at Arkansas were too poor to build a levee, and that "the Father would rather leave than go to such an expense. He is very poor." 103. See J. DELANGLEZ, THE FRENCH JESUITS IN LOWER LOUISIANA 444, where Watrin is quoted as saying that, despite there being little hope for conversion of the Quapaws, Father Carette "nevertheless followed both the French and the savages in their various changes of place, occasioned by the overflowing of the Mississippi near which the post is situated." 1983] COLONIAL LEGAL SYSTEM 419 gal processes. The probate proceeding of 1743 was instituted by one of the most well-to-do residents of Arkansas in the person of Anne Catherine Chenalenne, widow of Jean Francois Lepine. The community property inventoried included four slaves. 104 Her future husband Charles Lincto became the most substantial civilian resident of the Post. The 17 49 census, if one excludes from it for the moment the commandant and his household, reveals that Lincto's household accounted for eight of the twenty-nine white habitants and seven of the eleven slaves at the Arkansas. 105 Etienne de Vaugine de Nuysement who executed the procuration of 1753 was a member of one of the most distinguished French families of Louisiana; 106 and he granted the power to Commandant de la Houssaye who would soon become a Major of New Orleans and a Knight of the Royal and Military Order of St. Louis. 107 Vaugine and De la Houssaye married sisters. The marriage contract executed at the Arkansas in 1752 was entered into by the Post's garde magasin and Francoise Lepine, a daughter of Anne Catherine Chenalenne the petitioner in the probate proceeding of 1743; and the bride's dowry had resulted from the dissolution of the community which had been the aim of that proceeding. Finally, Francoise Lepine's second marriage contract, passed by Detrepi in 1764, was prelude to her marriage to Jean Baptiste Tisserant de Montcharvaux, officer and interpreter at the Post and son of the commandant who executed the 1743 inventory. We are dealing with a propertied and interconnected gentry here, a tiny portion of what was anyway a very small population. How the other, the major part of the Arkansas populace regulated their lives during the French period will, in the nature of things, be difficult to document. But there is some evidence on this point and it indicates that there was a good deal of lawlessness on the Arkansas. According to Athanase de Mezieres, the Lieutenant Governor at Natchitoches, the Arkansas River above the Post was inhabited largely by outlaws. "Most of those who live there," he claimed, "have either deserted from the troops and ships of the most Christian King and have committed robberies, rape, or homicide, 104. For a translation of this inventory, see Core, supra note 54, at 22. 105. Resancement General des Habitants, Voyageurs, Femmes. En.fans, Esclaves, Clzevaus, Beufs, Vaclzes, Coclzons du Foste des Akansas, 1749. Lo. 200, Huntington Library, San Marino, CA. 106. On the Arkansas Vaugines, see Core, T!ze Vaugine Arkansas Connection, 20 GRAND PRAIRIE HISTORICAL SOCIETY BULLETIN 6 (1978). 107. Faye, supra note 6, at 709. 420 UALR LAW JOURNAL [Vol. 6:391 that river being the asylum of the most wicked persons, without doubt, in all the Indies." 108 On another occasion, De Mezieres singled out as a particularly heinous offender an Arkansas denizen nicknamed Brindamur, a man "of gigantic frame and extraordinary strength." Brindamur, De Mezieres complained, "has made himself a petty king over those brigands and highwaymen, who, with contempt for law and subordination with equal insult to Christians, and the shame of the very heathen, up to now have maintained themselves on that river." 109 He had been resident on the Arkansas for a long time, as his name appears in the census of 1749. Interestingly, it is placed at the very head of a considerable list of "the voyageurs who have remained up the rivers despite the orders given them." 110 All persons hunting on the rivers were supposed to return every year as passports were not issued for longer periods. But there were large numbers of hunters who lived for twenty years or more in their camps without ever reporting to the Post. They constituted a large proportion, indeed sometimes a majority, of the European population in Arkansas during the French period. The 17 49 census, for instance, lists a habitant population of only thirty-one, including the commandant and his wife. But there were forty hunters on the Arkansas River whose passports had expired, and nine on the White and St. Francis Rivers. Sixteen hunters were said to be at the Post being outfitted to return to the hunt. Brindamur, the bandit King, was murdered by one of his men after the end of the French period, "though tardily" De Mezieres reckoned, and "by divine justice."111 In the Spanish period an effort was made to rid the river of these malefactors. VII Since no records of litigation initiated at the Arkansas during the French period have survived, if indeed any were ever kept, very little can be said directly on how lawsuits were conducted there. However, in 1747 Francois Jahan initiated a suit in the Superior Council in New Orleans against one Clermont, a resident of Arkansas Post, claiming damages for the conversion of a cask of rum at Arkansas. 112 The Superior Council, as we have shown, had jurisdic- 108. 1 ATHANASE DE MEZIERES AND THE LOUISIANA-TEXAS FRONTIER, 1768-1780 166 (H. Bolton ed., 1914). 109. Id. at 168-69. 110. Resancement, supra note 105. 111. t\. BOLTON, supra note 108, at 167. 112. Index lo the Records of the Superior Court of Louisiana, 17 LA. HIST. Q. 569 (1934). 1983] COLONIAL LEGAL SYSTEM 421 tion throughout Louisiana, and this case reveals how it was exercised against a defendant in the hinterlands. The summons was served on the Attorney General of Louisiana; thus, as Henry Dart pointed out, "it would seem . . . that a resident of the Post of Arkansas could be sued in New Orleans by serving the citation on the Procureur [Attorney] General."113 How the case would have, in the ordinary instance, proceeded from there is difficult to say. Probably the Arkansas commandant would have been asked to act as a master to gather facts and to report to the Superior Council. But it seems that the commandant had already ruled independently on the matter. Commandant de Monbharvaux's statement on this case, which is entered in the record a'few days after the suit was initiated, indicates that he had held a hearing on the matter at the Arkansas, had taken testimony as to the rum, and had "sentenced Clermont to pay for it."114 Apparently he had kept no record of the proceeding, as none was offered: The good lieutenant bore his own record. It is interesting to note, however, that this case was evidently not brought to enforce the commandant's judgment but was an independent action. How did the justice provided by the Post commandant during the French period measure up? In the absence of litigation records, this is the hardest kind of question to answer. We know, however, that whatever jurisdiction was exerciseable by the commandant, he acted alone, without official advisors and without, of course, a jury. To say that rule is autocratic is not to say
