Legitimating the Law

Three—Federalist Indian Summer

Chapter Three Federalist Indian Summer We must go back to the decade before Jeremiah Smith first became a judge, to the first week of 1793, and a moment when William Plumer pretended to be annoyed. “My patience is exhausted,” he wrote Smith. “Every week, for near two months, when the post called at my door, I have in vain anxiously expected a letter from you. This was not the case last winter. ’Tis true, I was then Speaker of the house of Representatives, & I am now a private citizen. I could then perhaps more effectually have served your interests than at present. But I am still your friend & my wishes are warmly interested in your favor.” Plumer meant what he said and what he said was the truth. No one would work harder in Smith’s interests than would he, and no one would deserve greater credit when Smith was first appointed chief justice of the Superior Court. He was sworn into his judicial office in the summer of 1802, on a day that Daniel Webster recalled as a memorable date in New Hampshire history. “[W]hen Jeremiah Smith became chief justice,” he would exclaim, “it was a day of the gladsome light of jurisprudence.”1 Smith had become “chief” of a court system in turmoil. In an eightyear period during the previous decade, Lynn Turner noted, the Superior Court “had suffered seven resignations, one impeachment, and innumerable threats [from the legislature] of removal.” Turner listed several causes, but an old one alone told most of the story: money. New Hampshire still would not pay salaries sufficient to attract lawyers to the bench. Not as serious but still damaging were the divisive politics of that day. “The spirit of party ran high,” Plumer recalled a quarter century later. Politics, he explained, “divided families, neighborhoods, towns & states; &, blind to public interest, embittered the sweets of social life, & hazarded the rights z z Federalist Indian Summer 41 of the nation.” Even an apolitical judiciary had to be affected by the bitterness , and at the turn of the nineteenth century, the New Hampshire judiciary was anything but apolitical.2 At the time Smith became chief justice, New Hampshire had been a solidly Federalist state for over a decade. John Taylor Gilman had been governor since 1794, but the political configuration that kept him in office was most unusual, and the Republicans only needed competent electoral leadership and a vote-getting gubernatorial candidate to challenge Federal ascendency. Portsmouth, the largest town and only center of shipping, ship building, and mercantile interests, was also the center of Republicanism, and it was the merchants and traders who furnished the leadership of the Jeffersonian party. The Federalists’ strength lay inland where nine-tenths of the population were farmers. Elsewhere they were the people who furnished the base of Jefferson’s strength, but fear and hatred of France, driven and preached by the Congregational clergy, had kept the agricultural yeomen of New Hampshire voting for the Federalists and incidentally keeping Governor Gilman in the gubernatorial chair so that he had been able to appoint Smith as chief justice.3 The politics of New Hampshire were ripe for drastic change. In no other state did Republicans have so much opportunity for growth. Soon the Federalists would learn that Jeffersonian gains and Federal decline were unavoidable. Chief Justice Smith and his closest political friend, William Plumer, were disciples of Alexander Hamilton in legal theory,4 but they were less Hamiltonian in politics. Although both were nationalists, they were primarily New England Federalists, thoroughly narrow in their regional loyalties and completely distrustful of all political activity south of Delaware. As the Republicans in the 1790s became more and more pro-French and anti-British, Plumer’s apprehension of southern Republican politics increased in proportion. “I fear more [from] our Democrats, our frenchified Americans, than from the French themselves,” he told the congressman from New Hampshire’s Hillsborough County. “The time is come when our country’s foes are those in our own household.” Smith was more harsh. Republicans , he suggested, were “lawless,” both because they were men who “dread the whip of the law” and because they were enemies of law—“the enemies of the rights of property,” “the enemies of order and good government , the enemies of peace, and, in my opinion, the independence of the country.” That was an extremely condemnatory statement, and Plumer would not have gone that far, but he did claim there was a difference of intellectual and moral...