Vol. 14 No. 6 (June 2004), pp.377-383

CONTROLLING THE LAW:  LEGAL POLITICS IN EARLY NATIONAL NEW HAMPSHIRE, by John Phillip Reid.  DeKalb, Illinois:  Northern Illinois University Press, 2004.  265pp.  $45.00 Cloth.  ISBN: 0-87580-321-0.

Reviewed by Kevin R. C. Gutzman, Department of History & Non-Western Cultures, Western Connecticut State University.  E-mail:  gutzmank@wcsu.edu

The foremost legal historian of the American Revolution and Early Republic, John Phillip Reid, here presents a chronicle of one state’s progress from common-sense jurisprudence to lawyers’ law.  While New Hampshire may not be the state concerning which historians interested in this topic are most curious, Reid successfully links his account to similar, contemporaneous trends in New York, Massachusetts, and Virginia.  He demonstrates that New Hampshire’s Jeremiah Smith, the chief justice most responsible for this transition, deserves to be remembered as one of the key figures in American legal history.  If, as I have been accustomed to tell my undergraduates, the great irony of the Virginia Dynasty was that even as the Republicans won all the federal elections, Chief Justice John Marshall was winning the constitutional war for Federalism, Reid makes clear that a similar trend was simultaneously at work on the state level.

What, exactly, was common-sense jurisprudence?  In short, it was the legal culture that allowed great orators such as Patrick Henry, reputedly short on technical legal expertise, to dominate the courts of the fledgling United States.  Until the turn of the nineteenth century, gentlemen justices had manned the courts of all the colonies-cum-states.  Rather than legal learning, these men had based their judicial decisions on what they and their supporters were pleased to call “common sense” – or what a later brand of judges called “conscience” or “human decency.”  Law, they believed, should not come from inherited traditions of the learned bar, but from the sovereign people (p.38).

Just as the sovereign people came to dominate American political life in a new way with the ascendancy of the Jeffersonian Republican Party after 1800, certain well-placed lawyers were beginning to argue for a more elitist kind of law.  As Reid puts it, what happened was a “struggle to convert the law of the early American republic from a laical jurisprudence of common sense to a system of lawyers’ law, . . . removing laymen from the administration of American civil law, and placing private law under the exclusive control of professionally trained lawyers” (p.3).  The people responsible, whose exemplar for Reid is Chief Justice Jeremiah Smith of New Hampshire, wanted American courts to receive the common law of England; this could only really happen, they believed, if a series of related reforms were implemented.  Reid calls Smith and the like-minded “receptionists,” while their opponents are denominated “republicanists.”

Reid’s first chapter, “A Professional [*378] Friendship,” describes the close tie between Smith and New Hampshire’s most prominent politician, William Plumer, in the 1790s and early 1800s.  The two men’s mutual amity was spurred by their Federalism and by their relative intellectual isolation in New Hampshire.  Both of them favored judicial reform at this point, and Plumer encouraged Smith in his efforts.  In fact, they might accurately have been described at that point as coadjutors.  If Rep. Smith classified 1790s Jeffersonian Republicans from Virginia as opposed to the Constitution (p.14), Plumer relished his exchanges of frank opinion with Smith (p.17).

Chapter Two describes the old-fashioned jurisprudence Smith and the young Plumer opposed.  From our perspective, it seems exceedingly strange, since the power of juries was so extreme.  At the time, however, as Reid demonstrates, common sense jurisprudence was enormously popular in New Hampshire.  Thus, for example, while Plumer succeeded in reforming New Hampshire’s Executive Branch to a large degree with his state constitution of 1792, he absolutely failed to strengthen the Judicial Branch, which remained vulnerable to the Legislative Branch’s arbitrary and frequent (not to mention nakedly partisan) reorganizations (pp.12, 20).

Not only did New Hampshire’s judges serve at the Legislature’s sufferance, but their role was narrowly circumscribed.  They did not control the law in New Hampshire trials, but instead could only advise juries as to their opinions.  Since no trial was supervised by a single judge, and since judges were not formally educated in law, jury instructions often clashed, which left jurors absolutely free to decide cases on the basis of their own feeling for one party or the other.  Judges commonly encouraged this tendency, as when one instructed against “paying too much attention to the niceties of the law, to the prejudice of justice.”  If a case was appealed, that appeal was not heard by learned judges, but by a new jury (pp.20-22).

Smith and Plumer both considered this an absolutely intolerable state of affairs.  They believed that the common law, whatever its shortcomings, at least made legal outcomes predictable; in this sense, it was better than New Hampshire’s ad hoc justice, which amounted to no law at all.

In time, however, Plumer would change his position – both as to law and as to politics.  Seemingly, the political change drove the legal; as Reid points out, the connection between lawyers and Federalism in New Hampshire was very close (p.33).  Thus, to cease to be a Federalist in one’s politics might very easily mean to cease to be a “receptionist” when it came to one’s views concerning law.  Put another way, if one favored Jeffersonianism in politics, he likely would favor leaving control over law in the hands of the laity, whether in the juries or in the legislature, rather than transferring it to the largely Federalist bar.

Advocates of replacing common-sense jurisprudence with lawyers’ law did not argue merely for predictability, however.  Instead, they insisted that courts made better law than did legislatures.  In the day of Smith and Plumer, the ascendant political faction was much more attuned to the vagaries of popular sovereignty [*379] than either major party is today.  Therefore, it is striking to find Pennsylvania Federalist Justice James Wilson of the U. S. Supreme Court saying, as Reid paraphrases, that, “The best laws were those established by custom.”  In Wilson’s words:

The prospect of convenience invites to the first experiment:  a first experiment, successful, encourages to make a second.  The successful experiments of one man or one body of men induce another man or another body of men to venture upon similar trials.  The instances are multiplied and extended, till, at length, the custom becomes universal and established.  Can a law be made in a manner more eligible?  Experience, the faithful guide of life and business, attends it in its every step.  (p.41)

The argument that the best law comes from the learned and the bench is seldom made so forthrightly today, of course.  Yet, it remains popular – among those who have been admitted into the temple.  Thus, for example, a prominent contemporary constitutional theorist, Lawrence Sager of the University of Texas School of Law, argues in his new book, JUSTICE IN PLAINCLOTHES, that having appointed judges overrule or ignore the law adopted in the ordinary democratic process is in some sense as democratic as having those same judges abide by the rules adopted by the people’s elected representatives.  “Constitutional adjudication,” he says, “embodies a distinct process that is itself fair and democratic, fair and democratic in a way that popular political institutions cannot realistically be.” [i]   Where Wilson plausibly, though in this reviewer’s opinion not persuasively, argued that learned judges made better law than the representatives of the unlearned did, Sager and his ilk today say that decisions made despite the contrary preferences of the people are “fair and democratic in a way that popular institutions cannot realistically be.”  Sager’s colleague, Sanford Levinson, used to assign his Professional Responsibility classes Plato’s dialogue GORGIAS, the classic refutation of the Sophists, whose skill lay in their ability to argue that up was down and backward was forward.  Sager’s argument here reminds me of the Sophists, not to say of George Orwell’s Big Brother.  Surely, the republicanists of Smith’s day were unconvinced.

While Reid’s volume is short, it is packed with the wealth of detail characteristic of his work.  The following must serve, then, to summarize the attitude of Smith’s early nineteenth-century New Hampshire republicanists:

New Hampshire people of the republicanist or republican legal conviction thought this receptionist contention pure lawyer bombast.  The common law with which lawyers would replace common-sense law, by the very nature of its origins and promulgation, had to be anti-republican.  It was anti-republican because – known only to a small educated elite, lawyers who could afford to take the time to study its writs and rules – it gave custody of what surely should have been one of the most open aspects of democratic governance…. It was a taught law conceived in feudalism and whelped by monarchy.  It was the common law of aristocratic, militaristic, nonrepublican England.  (p.49) [*380]

In Chapter Four, “Judicial Chief,” Reid tells the story of Plumer’s conversion to Republicanism, formerly the object of his disdain.  In the process of converting to what had become essentially the only political game in town, Plumer took on a new attitude toward his old friend Chief Justice Smith.  The new coloration on their relationship was cemented by a personal squabble having to do with some litigation before Smith in which Plumer’s brother’s interests were involved.  In the end, then, Plumer’s break with Smith was both political and personal; it was also, as recounted by Reid, sad.

Smith hoped for a day when all of the leading elements of English legal culture – published opinions, jury instruction by a sole judge, separate trial and legal terms of court, an educated judiciary, something like English writ practice, and judicial control of the decision of questions of law – would become part of New Hampshire legal culture as well.  Each of them, as he understood, would undermine the laical legal culture the Granite State had inherited.  Thus, even the apparently useless writ practice was an object of Smith’s patronage.

Smith also insisted throughout his career that the pay of New Hampshire judges had to be raised to a level commensurate with the expertise educated judges would possess.  Only if that were done, Smith reasoned, would successful attorneys willingly serve long stints as New Hampshire judges.  His campaign for higher pay for state judges, subject of Chapter Five, put Smith in bad odor with certain elements of the public, as did some of the methods (appointing himself reporter of New Hampshire laws, for example) that Smith chose for augmenting his income.  At a time when the federal district judge for New Hampshire and the chief justice of Massachusetts received multiples of his salary, Smith believed that higher pay for New Hampshire judges, including him, was a precondition to improving his state’s judicial branch in the sweeping way he preferred.

Chapter Eight chronicles Smith’s attempt to rein in juries, to superordinate judges, to put the training of lawyers above the “common sense” of the community.  He wanted to do so by substituting trial supervision by a single judge for New Hampshire’s customary trials before plural judges.  Reid judges the older practice nonsensical, which demonstrates the extent to which we are bound by our time and place:  there are many countries that today have trial before more than one judge as everyday parts of their legal systems, and some federal trials are still held before plural judges.  A lack of records prevents Reid from explaining how extemporaneous decisions about admission of evidence, for example, were handled by such courts in New Hampshire.  For Reid, as for Smith, it is obvious that legal errors committed by one judge in a trial could have been corrected by the full bench at a law term (p.114).  For a time, Smith implemented his reform.  When his Federalist Party lost the 1816 state elections, however, Smith’s court was legislated out of existence, and New Hampshire temporarily returned to trials before plural judges.  This seemed to republicanists the only alternative to a situation in which the jurors were cowed into submission by the eminent single judge who had lorded over them during [*381] the Federalists’ rule (p.114).

Nowadays, American lawyers are accustomed to the idea that a court can overturn a clearly erroneous jury verdict.  Smith wanted to institute a reform giving judges such power, but that, too, became a political issue between receptionist politicians (who sided with Smith) and their republicanist opponents—who, led by Governor William Plumer, asked that this practice cease.  Reid says that by the middle of the 1810s, Republican judges appointed by Governor Plumer were overturning jury verdicts on the same grounds as Smith had (p.129).  Here, as elsewhere, the battle lines were not clearly between Federalists and Republicans, but essentially between those educated in law and those not.  Reid says that by the time Plumer became governor in 1816, judicial control of juries was less electric an issue than it had been when Smith first raised it a decade before.

Why?  Reid guesses that average citizens may not have realized why republicanist politicians and journalists opposed Smith’s reforms so strenuously.  A more important innovation, appointment only of educated lawyers to judicial office, continued to have Plumer’s support even after he left the Federalist Party.  Reid believes that here lay the ultimate source of courts’ triumph over juries:  average citizens, he says, did not understand the importance of this reform concerning which Smith and Plumer continued to agree.  (Despite his defection to the Republicans, Plumer remained a lawyer, after all.)

“Professionalizing the Court” is the topic of Chapter Ten of Reid’s story.  It is followed by chapters entitled “Law Terms,” “Reporting Lawyers’ Law,” and “Court Reporter,” each of which chronicles Smith’s struggle to institute one of the significant receptionist reforms.  In the final chapter, “Loosening Control,” Reid tells the story of the Republican counter-reforms, instituted by Plumer and the Republicans in the wake of their sweeping electoral victory in 1816.

At that point, Smith was removed from the chief justiceship by the abolition of his court.  Plumer went on record to the effect that the whole of the common law was a usurpation, that it represented a government of men, not laws (p.185).  He asked that the judicial pay raises Smith had urged the legislature to adopt be pared back, and he did so in language implicitly critical of Smith himself, saying that high pay for judges brought into office people who were not motivated by the public good (p.187). (Plumer’s argument echoed a contention made by Benjamin Franklin in the Philadelphia Convention of 1787.)

Soon enough, however, Republican politicians were restoring judicial pay at the behest of Republican judges – who, one infers, must have been motivated by public concerns.  Those same judges asked for the restoration of law terms.  Even publication of legal opinions soon received the Republicans’ imprimatur.  Here, Reid notes, was “the most extreme innovation in the receptionist program,” and the mere logic of legal practice led republicanists to adopt it:  since several other states were publishing their judicial opinions, New Hampshire republicanists faced a choice between publication of their courts’ opinions and having New Hampshire judges rely on published opinions from other [*382] jurisdictions, including England, in arriving at their decisions.  The choice, then, was between adopting a receptionist reform and relying on English – and other foreign – law.  New Hampshire took the obvious step, though the Republicans added the petty maneuver of omitting to publish the many of his own opinions that Smith was known to have painstakingly collected (pp.191-92).

New Hampshire’s Republican judges also rejected another republicanist idea—delivering opinions seriatim.  Just as Thomas Jefferson was disappointed by his Supreme Court appointees’ decision to join in opinions of the entire Court, so Republican appointees to New Hampshire judicial posts joined in single opinions for the full court (p.192).  Again, it seems, the logic of legal practice overcame the republicanists’ fear of judicial power and concern to maintain that of the democratic juries.

In his Conclusion, Reid notes the extent to which the story of Jeremiah Smith’s career of legal reform in New Hampshire clashes with the regnant version of nineteenth-century American legal history.  Smith, he says, likely would have been completely unable to understand an account of his reforms that found in it a partisanship for, as Morton J. Horwitz (1977, 253-54) put it, “men of commerce and industry at the expense of farmers, workers, consumers, and other less powerful groups within the society.”  Instead, Reid says, Smith was a product of his education, which saw law as ideally neutral and wanted to make it predictable so that people could rely upon it (pp.196-97).

Reid accounts for the parameters of Smith’s reform program, which did not include any attempt to deprive the legislature of its power to grant retrials or any effort to give judges control over the law in criminal cases, by reference to Smith’s political realism.  A sometime governor, Smith understood his political environment well, and he did what he thought practicable.  Not until 1842, twenty-six years after Smith’s removal from office by the newly Republican legislature, did New Hampshire give courts control over the law in criminal cases.  Still, New Hampshire was ahead of the curve in that regard (p.197).  Smith lived to see this development, although Reid does not know whether he knew of it  (p.198).

New Hampshire did eventually reenact all of Smith’s reforms, despite becoming so Democratic as to earn the name “the South Carolina of the North.”  (Recall that President George W. Bush’s relative and presidential predecessor Franklin Pierce was a Democrat from New Hampshire.)  Reid closes by noting that the period 1816-1845 saw receptionist law triumph in every American state, despite the ascendancy of first the Jeffersonian Republican, then the Jacksonian Democratic Party, and he notes that the coincidence of these developments remains unexplained.  As Jefferson’s party waxed, interest in the way law was made – which had so exercised him – waned.  One is reminded of Henry Adams’ account of the Jefferson and Madison Administrations, in which sixteen years’ stewardship of the federal government by his great-grandfather’s leading critics resulted in the operative renunciation of virtually all of their constitutional objections to the John Adams Administration – and Jeremiah Smith [*383] undoubtedly would have been happy about that (p.199-200).

REFERENCES:

Horwitz, Morton J.  1977.  THE TRANSFORMATION OF AMERICAN LAW, 1780-1860.  Cambridge:  Harvard University Press.

Sager, Lawrence G.  2004.  JUSTICE IN PLAINCLOTHES:  A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE.  New Haven: Yale University Press.

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Copyright 2004 by the author, Kevin R. C. Gutzman.