The Rule of Law in the Early Republic

John Phillip Reid is a leading practitioner of American legal history. To describe him as “prolific” hardly captures his half century of scholarly productivity. In studies ranging from a judicial biography of Charles Doe to pathbreaking work probing law on the Overland Trail to his magisterial four-volume opus on The Constitutional History of the American Revolution (1986–93), Reid has left an indelible mark on the field.

Legislating the Courts: Judicial Dependence in Early National New Hampshire is the latest offering from Reid and builds on his earlier book, Controlling the Law: Legal Politics in Early National New Hampshire (2004). The two books present complementary narratives of the transformation of American thinking about law in the years after the Revolution.

The controversies Reid traces in these studies provide a basis for reevaluating the development of American law that we tend to take for granted. The two books look at the relationship between the people and the court system, but in different ways. The earlier book, Controlling the Law (CTL), largely focuses on the debate over the role of the people in their capacity as jurors and what influence they should have on the development of law. In contrast, the later book, Legislating the Courts (LTC), examines the disagreements about the people acting through their legislative representatives to shape and review the judicial process. In both studies Reid identifies a crucial “jurisprudential dichotomy” in how people thought about law (CTL, p. 33). Reid describes as inevitable the triumph of judicial independence and rule of law in New Hampshire. Both studies, however, demonstrate that neither concept was prevalent in the 1790s.

In the two decades following the Revolution, New Hampshire developed an informal legal system in which the people played a prominent role. Reid characterizes this as a common-sense and layperson-oriented approach to law. Controlling the Law explains how several lawyers began an ultimately successful effort to displace this common-sense method with a professionalized bench and bar steeped in legal technicalities and procedures and devoted to precedent. Reid describes the creators of a “lawyers’ law” as “receptionists” because they were willing to receive the methodology of the English common law as the best means to develop American law (CTL, pp. 7–8, 36). He calls their opponents “republicanists” (CTL, p. 38).

Receptionists and republicanists differed on the source of law. Receptionists envisioned a system of American case law that would evolve according to legal principles and procedures. While not claiming that all law was “immutable,” receptionists insisted that “certain fundamental legal principles were” (CTL, p. 46). Sound law, according to receptionists, “was promulgated by the most undemocratic branch, the appointed judiciary, a professional elite that did not answer to the people” (CTL, p. 38). This attitude toward lawmaking cut against the underlying thrust of the Revolution’s promise of government by the people.

Republicanists conceived of law as emanating “from the commands of the sovereign people” (CTL, p. 38). Rather than discovering law “in the taught traditions of the trained legal profession, or in the rulings of the judiciary,” republicanists insisted that law should come “from the democratic people, either promulgated by republican legislatures or declared by republican juries” (CTL, pp. 9, 38). Instead of relying on precedent, republicanists emphasized the principle of doing substantial justice in any given situation unencumbered by legal technicalities. Enormously popular in New Hampshire at the time, the essence of common-sense jurisprudence was epitomized by a republicanist judge who charged a jury to render “an honest verdict of which, as plain, common sense men, you need not be ashamed” (CTL, p, 26). In the republicanist legal system, juries—particularly civil juries—should operate autonomously and be governed by their own views.

The receptionist/republicanist divide was more than just jurisprudential. To some extent it overlapped with political orientations. Indeed, at one point Reid considered distinguishing the two camps as “Jeffersonian” and “Hamiltonian” (CTL, p. 249). Still, Reid makes clear that the...