Legitimating the Law

Nine—Contesting Courts

Chapter Nine Contesting Courts Doubts concerning the wisdom, political propriety, and constitutionality of the Judicial Act of 1813 were not the only reason that Jeremiah Smith hesitated in accepting the appointment to a second term as chief justice. It was important to him to learn who his associate justices would be. He wouldbesatisfiedinoneregard. Oneofhischief reforms was implemented. Despite the fact that Governor John Gilman would select the new justices, everyone knew that all three would be lawyers. For only the second time there would be no laymen on New Hampshire’s highest court. It is difficult to believe that Smith could have been pleased with one of his associates, Arthur Livermore. He had been chief justice of the legislated -out Superior Court, so his appointment as an associate was a demotion. At that time he was being investigated by the legislature and, of course, was still despised by a sizable portion of the bar, including leading Federalist lawyers, primarily for what Plumer described as his “passionate” and “imprudent” conduct on the bench.1 Smith was one of the few members of the bar who got along with Livermore. One reason was that Livermore, to the best of his ability, supported much of Smith’s jurisprudential program. It deserves to be especially remarked, that when he was legislated off the court for the last time in 1816, The Voice Of New-Hampshire accused Livermore of “having done all the harm in your power” when he was chief justice, “by depriving the trial by jury of its consequences in our juridical tribunals.” This complaint is a bit of evidence that during the four years that Smith was off the court and Livermore was the chief justice, he had continued to implement one of Smith’s most major reforms, controlling the jury, and with enough effect that he irritated Jeffersonian critics such z z 132 Legitimating the Law as Voice Of New-Hampshire. He was not, however, a supporter of all that Smith sought to accomplish. When Governor Plumer had told him in 1812 that he thinking of vetoing the judiciary bill written by Thompson and Webster, Livermore did not object but, from Plumer’s account, apparently encouraged him. “He said the information [i.e., education] & habits of the people were not sufficient to support such a system, & doubted if five men could be found in the State qualified to administer it as judges. We have been more in the habit of expecting justice, than quibbles & sharp points.” Livermore was telling Plumer both that single-judge court terms could not succeed in New Hampshire because there were too few potential judges capable of conducting jury trials alone and also that Smith’s campaign to impose stricter standards of procedure would fail in New Hampshire because people wanted the equitable “justice” of commonsense jurisprudence; they did not want the “law” of sharp-pointed quibbling over niceties of common-law process.2 The second associate justice was almost a complete contrast to Livermore , not only as a lawyer who defined law as Smith defined it, but as a man whom Smith respected, both professionally and personally. He was Caleb Ellis, a native of Massachusetts and graduate of Harvard College, who had opened his law office in Claremont, where, according to Plumer, he “attended to his professional business with propriety and success. At the bar he was distinguished as a reasoner, & for his faithfulness to his clients; but claimed no merits as an orator.”3 Perhaps because he was not a polished speaker, he had no “desire for appearing in public,” and was elected to office only because the Federalists brought him forward as a candidate. He served one term as a state representative and one in Congress ; he was twice a member of the executive council, the first time was when Smith was governor. In 1811 he was a state senator, and in 1812 he was a presidential elector, opposing Madison and the war. In 1809 Governor Smith had wanted to appoint him to the Superior Court, but Ellis absolutely refused to serve; yet only four years later he accepted . Smith claimed that Ellis changed his mind because he considered the Judicial Act of 1813 such “a great improvement in the jurisprudence of the State.” If Smith understood Ellis correctly and reported his words accurately, Ellis’s change of mind deserves special attention. What he said is striking evidence of the expectations of some of the better lawyers in the state for the benefits that the law...