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OPINION | REX NELSON: A judge’s obsession

by Rex Nelson | March 25, 2023 at 2:46 a.m.

As an Arkansas history aficionado, I love Fort Smith. I can spend a full day downtown, hanging out at Fort Smith National Historic Site and the adjacent Fort Smith Museum of History, taking my time and reading everything. Few cities its size have a history that's so rich.

When the much-anticipated U.S. Marshals Museum opens later this year on the banks of the Arkansas River, I'll spend a couple of days in Fort Smith. In anticipation of that trip, I'm reading "Justice Divided: A Judicial History of Sebastian County" by Jim Spears. The former judge gives us far more than a dry judicial history. This is, in some ways, a history of the westward expansion of the United States and the role Sebastian County played.

"Formed from part of Crawford County in 1851, Sebastian County and the early Crawford era is a mirror reflecting the history of the entire state of Arkansas," says Tom Wing, director of the University of Arkansas at Fort Smith's Drennen-Scott Historic Site. "From the unpredictable frontier and territorial days to the divided opinions of the Civil War years, and on to Republican dominance during Reconstruction, then back to the Democrats in charge before the turn of the century, the story is detailed and full of interesting anecdotes."

Spears says the book project has been going on for more than four decades. When he was a young attorney, he noticed photos of chancery judges and wondered why there were no photos of circuit judges.

"Curious, I began research," Spears says. "It was not yet an obsession, but over the years it became that. I wanted pictures of all the circuit judges as well. Who were they? I started to get serious about this after I was elected chancery judge in 1992. Hours were spent in the library and running down family in attempts to find these men from the past.

"Rumors about transgressions and long-ago political scandals made it fun. In the 1990s, it came together in a manuscript. My friends Tom Wing and Billy Higgins, both noted historians, felt it had merit. There was an exhibit at the Fort Smith Museum of History with the photographs I had collected. It had a good reception, but no one was interested in publishing a book by a judge in Fort Smith."

Later, Spears met Joyce and John Faulkner. The couple retired to Fort Smith and started a publishing company known as Red Engine Press. Red Engine published Spears' book "Yearning to be Free," which was about his experience as the public defender for the Cuban refugees at Fort Chaffee in 1980-82.

David Ware, with whom Spears served on the Arkansas Supreme Court Historical Society, agreed to edit "Justice Divided." Ware has been director of the Arkansas State Archives since January 2021. Before that, he spent 18 years as state Capitol historian. No one understands Arkansas history better than Ware.

In setting the stage for the Sebastian County part of the story, Spears explains how the Arkansas judiciary began.

"Arkansas became a separate territory in 1819 and a state in 1836," he writes. "With its lack of population, organization and infrastructure, Arkansas was hardly ready for statehood. However, in the rush for new states to balance the U.S. Senate between free and slave states, Arkansas was paired with Michigan for statehood--ready or not.

"The new state's Constitution provided for the judiciary in Article 6. The judicial power was vested in a Supreme Court. Trial courts known as circuit courts enjoyed jurisdiction over all criminal and civil trial court proceedings. Justices of the peace presided over inferior courts, and the Constitution provided for--but did not mandate--the creation of corporation courts and separate courts of chancery."

At the time, the Supreme Court consisted of three justices, with one designated as chief justice. Justices and circuit judges were elected by a joint vote of both houses of the Arkansas Legislature. Supreme Court justices had to be at least 30 years old and were selected for eight-year terms. Circuit judges had to be at least 25 years old and were selected for four-year terms.

"Justice of the peace courts held jurisdiction over cases involving county taxes, the disbursement of monies for government purposes, local concerns and internal improvements," Spears writes. "Each township elected its own justices of the peace, one for every 50 people in a township with at least two chosen from each township. Justices of the peace served two-year terms and had to be residents of their respective townships."

The JPs had no criminal jurisdiction at first. In 1848, a constitutional amendment allowed the Legislature to bestow jurisdiction for assault and battery and other offenses less than a felony and punishable by fines only. Constitutional amendments in 1848 provided for the popular election of Supreme Court justices, circuit judges, prosecuting attorneys, and county and probate judges.

"Elected county sheriffs bore the main responsibility for law enforcement within the county," Spears writes. "They shared this responsibility with constables, one elected by each township, who had concurrent jurisdiction. Incorporated towns were permitted to elect a separate constable and town magistrate.

"Early Arkansas, as both territory and state, consisted of large counties, whose boundaries sometimes followed geographical features and barriers and in other instances did not. Ideally, a county's seat should be within a day's travel from the farthest reaches of the county, but this was not easy to accomplish."

Senior Editor Rex Nelson's column appears regularly in the Arkansas Democrat-Gazette. He's also the author of the Southern Fried blog at

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