Legitimating the Law

Eleven—Addressing Out the Judges

Chapter Eleven Addressing Out the Judges The thesis can be confidently asserted and plausibly defended that the election of 1816 was the most memorable in New Hampshire history for two reasons: First, starting with its victory that year, the Democratic Party would be absolutely dominate in the state for two decades—until John Parker Hale staged a temporary revolt on a free-soil platform—and then again for ten more years until the rise of the abolitionist movement and the new Republican Party. Second, it was an election of unusually interesting issues: the Republicans, who now were also being called Democrats, promised three major reforms. The least controversial was to disestablish the Congregational Church. The second was the pledge to transform Dartmouth College from a private to a public institution. And the one that most voters at the time thought the consequential issue was to legislate from office the Supreme Judicial Court of Jeremiah Smith and restore the Superior Court, which had been voted out in 1813. With the war no longer a factor the Democrats were certain of victory. Still, the election was not the runaway expected. With over 38,400 votes cast, Plumer won by 2,300.1 Yet the future was forever changed. The Federalists never again ran a serious campaign for governor in New Hampshire.2 The legislative session that June of 1816 was the busiest that New Hampshire had ever experienced. Plumer started the activity with an address which the Federalist press disparaged and his biographer said was “another evidence of Plumer’s capacity for ‘wheeling about,’—or a surrender to political expediency.” “The leading measures, which he recommends,” the Portsmouth Oracle sneered, “relate to repealing charter’s [i.e., Dartmouth’s], turning out judges, and the abolition of law generally.”3 It was a session that z z Addressing Out the Judges 171 would enact ninety-six new laws, elect a United States senator, vote to build New Hampshire’s first state house in Concord, and nullify the charter of Dartmouth College, but for Plumer the most satisfying accomplishment was “the overthrow of the Federalist Judiciary Acts of 1813.”4 To rally people for the repeal of the Act of 1813, Plumer in his gubernatorial address relied on a constitutional principle that most of his listeners knew was incorrect. “By our constitution,” he told the two houses, “all the judges of our courts of law are to hold their offices during good behavior, until they arrive at the age of seventy; and cannot legally be deprived of their seats by the other branches of the government, except on impeachment . . . , or by the Governor and Council on the address of both Houses of the Legislature. . . . Notwithstanding these fundamental and salutary principles, the legislature in 1813 in effect removed all the justices of superior court of judicature.” He not only denigrated the Judicial Act of 1813 for creating “a supreme court,” he especially faulted the Act for entrusting “a single member of it with the power of deciding important questions deeply affecting the property, liberty and character of our citizens.” To make his case against single-judge trials, he turned to a surprising source: the principles of his political party. “The powers thus delegated,” he said, “appear better suited to the nature of a monarchical than a republican government,” an assertion rooted in pure Jeffersonian politics. “To repeal these laws,” he concluded, “will not be innovating, but restoring a system of administering justice, that has, in substance, been coeval with the early settlement of the country.” Plumer also departed from the jurisprudence of his earlier years as a lawyer by urging the legislators to undo Smith’s efforts to control the law by taking legal questions from the laymen on juries and placing them exclusively under the authority of the courts. “As the trial by jury is an inestimable privilege,” he contended, again calling for implication of Republican political policy, “and jurors by their oath are bound, not simply to decide the fact, but the law arising in the case, it merits enquiry whether judges have not too often set aside the verdicts of juries.” Plumer thus adopted extreme Jeffersonian principles that he had never supported so publicly before. Previously he had worked with Smith to promulgate the rule that jurors were the judges only of fact, not of law. But he did concede to Smith one aspect of his reforms, concluding this part of his address by agreeing that there were erroneous jury verdicts that...