Legitimating the Law

Twelve—A Receptionist Court

Chapter Twelve A Receptionist Court By legislating from office Jeremiah Smith and Arthur Livermore, and then addressing the two off the court along with every other ex-judge then living, the Republicans had taken the first two steps in their program to reinstitute the Superior Court and place it under the control of the political majority. The next element in the process promised to be more difficult. Governor Plumer had to persuade three competent lawyers, acceptable to at least three councilors, to become high-court judges. There was not a single judge left in the state except those of probate, and Plumer knew exactly what he wanted and what he did not want. Except for Jeremiah Smith, Arthur Livermore, Daniel Webster, and a few others, he sought the best lawyers he could find, because, he believed, a majority of New Hampshirites would “form their opinion of the court & its usefulness, more from the character of the men who composed it, than from the principles of our laws.” There was no surer way, he seemed to be saying, to restore legitimacy to New Hampshire law than by placing the finest caliber judges on the highest court. He also wanted to find appointees “from both parties.” The Federalists , he explained, “had rights we were bound to protect—they had good men, some of whom we ought to appoint.” He “could not,” he explained, “consent to have all the judges selected from one political party—such a measure partook too much of political intolerance to be supported.”1 Those were the governor’s two objectives: to appoint Federalists as well as Republicans and to appoint the most competent lawyers he could persuade to serve. Despite his adherence to political Jeffersonianism and his adoption of some of the more extreme Jeffersonian rhetoric disparaging English traditions, Plumer was not a committed convert to legal z z 180 Legitimating the Law Jeffersonianism. He always remained the receptionist of English common law that he had been when first admitted to the bar and especially when he was a leader of judicial reform at the Constitutional Convention of 1791–1792.2 As much as Jeremiah Smith and Daniel Webster, he wanted the New Hampshire judiciary to receive and follow the methodology of English common law, and he gave no indication of compromising. More particularly, he sought a court before which lawyers of the education and caliber of Smith and Webster could practice, confident that their motions for demurrers, exceptions, errors, and reserved questions, would be understood and knowledgeably acted upon. Plumer’s first problem was that the court to which he had to appoint judges had been brought into being by repeal of the Judicial Act of 1813. The governor had to decide what repeal meant. Was it only that the Supreme Judicial Court no longer existed; or, also, that the former Superior Court of Judicature had been reconstituted? The law of 1816 implied that it created a new Superior Court, rather than bringing the old one back, but it did not say so explicitly. And if the old court had been brought back into being, what of its members who had been serving at good behavior? Were they reactivated with the court? There had been three: Richard Evans, Clifton Claggett, and the chief justice, Arthur Livermore. Evans expected to go back on the court but died not long after the repeal act passed the legislature. Livermore, accepting the fact that he had been both legislated and addressed from office, made no claim. Besides, as he had been paid as a member of the Supreme Judicial Court since 1813, he could never have persuaded New Hampshire lawmakers that he was owed back pay for doing nothing on the Superior Court. Claggett was different. He wanted both the office and the compensation. After being addressed out, he personally demanded that Plumer reappoint him, insisting that he had a legal, political , and moral right to reappointment. Claggett’s demands put both political and personal pressure on Plumer. True, no one then made a study so there are no precise numbers, but it is safe to guess that at least a sizable minority of Republicans in both houses said that Claggett either was already reinstated as judge or had a legal right to be reappointed, and there is good evidence that a majority of the Council told the governor they would vote for Claggett. Leading the fight for Claggett was his son William, a militant, outspoken, very active politician, who openly threatened...