Legitimating the Law

Seven—Legislative Hegemony

Chapter Seven Legislative Hegemony The election of 1813 was a New Hampshire political watershed, and many people expected that year’s General Court would become one of the most memorable in history. It was memorable but not for the reasons that people had anticipated. It was memorable only for legislation reshaping the judiciary. And as legislators arrived in Concord for the opening session , newspapers were reporting the first positive news in years about the judiciary. It was announced that “the Hon. Judge Evans has so far recovered his health, as to have been able to perform the duties of his office in the Courts of Grafton and Coos.” It would be but a temporary respite in Evans’s incapacity. For well over two years he had not attended a court session, although, the Farmer’s Cabinet reported, “it is believed he never failed to claim his salary.” With only the incompetent Clifton Claggett to assist him, Arthur Livermore had to try and clear most dockets practically alone. He complained to Governor William Plumer that he needed abler associates and told his brother “that he intended to resign as he felt himself inadequate to the task of doing the whole [judicial] business of the State.”1 As the government of New Hampshire gathered in Concord for the opening of the legislative session that June, there was a general consensus that some action had to be taken to remedy the many and obvious defects of the judiciary system. For the first time in the state’s history, there was talk about legislating the entire high-court bench from office. That possibility was a contrast with the legislative session of just the year before. Then, at both the June and November sessions, discussion had not been on legislating out the Superior Court, but of either impeaching or addressing out of office individual justices. The targets that most lawmakers had in mind were z z 100 Legitimating the Law either the chief justice, Arthur Livermore, whom some of the leading lawyers of Rockingham County wanted addressed out, or Richard Evans, the absent judge, whom many legislators, especially those representing counties where court sessions were sometimes cancelled, wanted off the court. “Complaints against the Justices of that court, particularly the C[hief] Justice, are numerous,” William Plumer informed Congressman Harper three months before the legislature met. “[T]hey do not proceed from one party only, but many of both parties [are] dissatisfied.” Complaints against the chief justice had been multiplying. He may have become more arbitrary as judicial pressures increased. With Evans staying at home and his other associate, Clifton Claggett, too unfit to be of help, Livermore had begun to conduct trials alone. The practice was not authorized by statute, and it does not seem to have been frequent. From what little is known the best guess is that desperate litigants, anxious to have their legal problems resolved, sought to waive their rights to be tried by two or more judges and asked Livermore to preside alone, whether such trials were legal or not. One reason that Livermore did not often have to preside alone was because he usually had Judge Claggett to sit alongside him. Claggett’s presence satisfied the statutory requirement of two presiding justices but did not relieve the burden on Livermore. Having Claggett as his sitting associate may have been very much like presiding alone. From everything that contemporaries have told us about Claggett, it is safe to surmise that the chief justice had to make most of the rulings and formulate all of the decisions, and that was probably what he meant when telling his brother he would resign. He was complaining about Claggett as much as he was about Evans.2 For litigants there were some risks in asking Livermore to preside alone if Claggett was not available. His impatience and short temper made his trials both unpredictable and unnerving. There were, however, two sides to his contentious personality. On the negative side he could be arbitrary, but on the positive he could be quite decisive. The Voice Of NewHampshire claimed that when Evans took sick and stopped coming to court, Livermore ordered the clerk of the Superior Court not to pay him his salary.3 Almost all the complaints about Livermore’s conduct in court were private , voiced to friends and acquaintances by unhappy or abused attorneys but not brought against him as formal charges. As a result they are lost to history. As far as research...