Legitimating the Law

Five—A “Law” Governor

Chapter Five A “Law”Governor Jeremiah Smith had been chief justice for less than a year when the Republicans spread stories that he was slated to replace John Taylor Gilman as the next Federalists’ gubernatorial candidate. Instead Gilman was replaced as governor by Republican John Langdon who was so popular that his reelections in 1806, 1807, and 1808 were foregone conclusions.1 Then, late in 1808, New Hampshire politics underwent a drastic change. Opposition to the embargo energized and reunited the Federalist party. In March Langdon was reelected by an overwhelming majority of 9,383 votes, but by the time of the congressional elections in August, a political revolution had occurred. The Federalist ticket was swept into office by an average plurality of 1,300. “I fear our governor & legislature will be changed,” William Plumer predicted to one of the defeated congressmen. He expected the election of 1809 might result in a Federalist sweep.2 For three years, according to Lynn Turner, the Federalists “had seemed to be a dead party.” Then, in 1808, they came back to life: “the caucus suddenly agreed upon candidates for all state and national offices.” For the November election the caucus abandoned Gilman as its candidate for presidential elector and substituted Chief Justice Smith in his place.3 Then, the next February, Federalists again substituted Smith for Gilman, abandoning a man whom they had elected governor eleven times. The Republicans had expected the change, but feigned surprise. “The pioneers of the Federal party,” Strafford commented, “have exhibited Judge smith as candidate for the office of governor at the ensuing election. In announcing this nomination, they are aware of the scrutiny to which their motives will be exposed.”4 z z 64 Legitimating the Law It was not the Federalists’ motives, but Smith’s that have puzzled historians . “For some unaccountable reason,” Turner noted, “Jeremiah Smith was persuaded in 1809 to resign his seat on the superior court, where by patient and indefatigable labor he had been reforming the jurisprudence of the state. . . . It is difficult to understand . . . why Smith left a secure, nonpolitical position which was congenial and peculiarly honorable to him to hazard his career for a political bombshell which offered three hundred dollars less salary and infinitely more trouble.”5 Declining health was the only explanation reported by the newspapers of both parties. “[T]he labourious duties of his office,” Union claimed, “are found to have operated injuriously.” His friends, the Farmer’s Museum agreed, urged him to change offices, fearing “his health may be impaired” if he remained on the bench. An Elector made the very dubious assertion “that physicians of eminence had declared he cannot live long, and labour as he has done.” Consequently, according to the Dartmouth Gazette, “by the advice of his friends and physicians,” he probably would have resigned anyway as chief justice.6 There is no direct evidence that Smith was in failing health or that any physicians warned him that he should not continue as chief justice. That his health was declining may be a tale the Federalists concocted. The NewHampshire Patriot said it was lawyers, not doctors, who pushed him to leave the court. “He was becoming unpopular as a judge among those of his own political profession,” the Republican editor Isaac Hill fantasized, “and many lawyers within our own personal knowledge exerted themselves to the utmost to effect his election . . . , to replace him from the more important office of judge.” “[L]awyers,” An Injured People wrote, “thought him too arbitrary and too partial in his decisions for a Judge; and that he would make a better Governor.”7 New Hampshire Republicans had never before staged an election campaign quite like the one in 1809. Considering the extreme bitter politics of that decade, it was hard for many people to believe, but just about the most strenuous anti-Smith argument was that he should not be elected governor because he was too valuable to the state as chief justice. “[S]ome of his friends, though more of his enemies will say, We cannot spare him from his present office; he is too useful as a Judge, to be made Governor,” Thousands told the Farmer’s Cabinet. “This, we are sensible, will be the grand weapon made use of by the friends of Mr. Langdon—Mr. Smith is too good a man to be lost as a Judge.” The Republicans, Philo later recalled, said “that the State of New Hampshire could not furnish a man...