Legitimating the Law

Ten—Judicial Interregnum

Chapter Ten Judicial Interregnum “The Judiciary department of the state government upon the stability and independence of which depend the security and happiness of the people is now in a condition at once unprecedented and melancholy,” Portsmouth’s Gazette bemoaned during the week that Chief Justice Jeremiah Smith allowed his negligible rivals, Richard Evans and Clifton Claggett, to take possession of the courtroom in Exeter and to sit in chairs that in the minds of almost every New Hampshire lawyer by right belonged to him and Caleb Ellis. “Two courts pretending to a supreme appellate jurisdiction holding their term at one and the same time and place and counteracting the proceedings of each other exhibit a spectacle which chills every social feeling.”1 There is no need for a poll. Nor do we have to guess. We know that most lawyers thought Smith and Ellis belonged in that Exeter courthouse, not Evans and Claggett. Members of the bar voted by their attendance. The entire bar and most of the public left the courtroom and followed Smith and Ellis to the council room when Evans and Claggett preempted the bench. The same vote was cast in Amherst. The bar chose the Supreme Judicial Court and repudiated the Superior Court. The outcome of the rivalry was never close. Yet not every lawyer put the blame on Evans and Claggett. Arthur Livermore’s brother, with his usual bad temper, said the blame belonged to the Republican governor and to the longtime New Hampshire practice of putting on the bench untrained, uneducated, and inadequate men. “All this difficulty has arisen from the folly and wickedness of John Langdon and the other violent Democrats in making such men as Evans and Clagget[t] Judges,” he wrote a Portsmouth lawyer. “Nothing but party insolence and madness could have induced any man to think of such men for Judges of z z 152 Legitimating the Law the Supr Court except he intended to bring the administration of law and justice into contempt and ridicule.”2 That was one perspective—the idea that Langdon was responsible for the absurdity of two rival courts, the low point in New Hampshire judicial history. As contended in chapter one, nineteenth-century New Hampshire would have the most distinguished small-state judiciary in America, but not in 1813, not with the likes of Evans and Claggett challenging and embarrassing one of the most memorable legal scholars of the early republic, Jeremiah Smith. Langdon was the cause, but though he can be blamed for appointing Evans to the high court, perhaps he should not be censured. He never appreciated why Evans did not measure up or why men educated in the law, like Smith and Plumer, believed that only lawyers, to the exclusion of laymen, should be appointed to the bench. Most New Hampshire Republicans did not understand. Richard Evans certainly did not think he was at fault for putting Smith out of the courtrooms. He had, in fact, been doing his constitutional duty, and he even had the nerve to petition the government to be paid for insulting Smith and disrupting the judicial process. “Your memorialist, believing it a solemn duty imposed on him by his oath to maintain the constitution,” Evans prayed the two houses, “still attended the terms of the superior court in Strafford, Rockingham and Hillsborough [counties], and there endeavored . . . to maintain its independence.” Estwick Evans, although a lawyer, was even more audacious, for he made his argument in a pamphlet, hoping to arouse public opinion. His brother and Claggett had not only acted properly, they had been forced to confront Smith, who was the usurper, Estwick Evans argued. Smith was the judicial pretender. Evans and Claggett, he concluded, “rendered no small service in continuing judges, ready at all times, to administer the constitution and laws of the land, and to shield the people from oppression. They might have resigned and sought some other business; but would not such a step have been truly injurious and dishonourable.”3 If we can believe Judge Evans, it was a special session of the legislature called by Governor Gilman to address from office the Republican sheriffs of Rockingham and Hillsborough counties that caused Evans to end the judicial charade. He claimed that he had planned to match Smith session for session until the General Court convened. The decision of the legislators to join the governor and to address from office the two sheriffs who had obeyed him and Claggett, rather than Smith...