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Book Review
| John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire, Dekalb: Northern Illinois University Press, 2004. Pp. 258. $45.00 (ISBN 0-87580-321-0).
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| In Controlling the Law, John Phillip Reid explores the political conflicts, strong personalities, and dynamics of personal relationships that contributed to the evolution of New Hampshire's early national legal system. Reid observes that, in each state, a remarkably small group of men orchestrated the transfer of judicial control into the hands of professional lawyers. At the center of New Hampshire's story were two lawyers, Jeremiah Smith and William Plumer, who, as young men, enjoyed a close professional friendship. Over time, however, Smith and Plumer parted ways over political ideology and theories of jurisprudential reform. Their personal and professional conflicts reflected the problems that many officials encountered as they reshaped their political and legal institutions in the early republic. |
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Reid begins with a familiar image: early national judges, who were not always formally educated in the law, struggling with a legal system that boasted few written judicial opinions or home-grown precedent. Because of their lack of education and guidance, many lay judges eschewed "lawyers' law" in favor of what Reid calls "common-sense" jurisprudence. Suspicious citizens perceived judges to be an elite group whose abuse of power could threaten republican government. To protect themselves from this potential threat, framers of New Hampshire's constitution refused to build an independent judiciary into their frame of government. Consequently, throughout the nineteenth century, the state's Superior Court remained at the mercy of political winds, as the legislature repeatedly dismantled and reconstructed its Superior Court to the dominant party's specifications. |
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The state's political and legal maneuverings turned on two prevailing jurisprudential theories that Reid labels "receptionist" and "republicanist." Receptionists believed that a professional bench, precedent, and judge-made law in the form of written opinions and according to the English common law methodology could best preserve the integrity of fundamental legal principles. For republicanists, on the other hand, all law originated in the will of the sovereign, the people; therefore, the law should originate in the "democratic" legislatures or jury decisions. Rejecting the central common law tenet of precedent, republicanists believed that judges instead should privilege "common-sense" considerations in their decisions. |
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Reid paints Smith as a strong-willed receptionist and Federalist whose ascent to the superior court's chief justiceship in 1802 empowered him almost single-handedly to implement substantive reforms. Often working against the legislature's wishes, he moved much of New Hampshire's law and procedure out of the jury's purview and placed it under the control of professional judges. The legislature agreed to allow one-judge charges to the jury in each case, thus eliminating potentially contradictory instructions. He also helped to professionalize the state's bench by insisting that the stingy New Hampshire legislature raise judges' salaries, and he convinced the legislature to sponsor official published reports of court decisions. After lawmakers rejected his other reform proposals, Smith unilaterally initiated "practices of the court" such as single-judge trials and limitations on jurors' power with regard to determination of matters of law. Smith's reforms even endured political turmoil. After he was legislated out of office in 1816, most of his reforms were repealed by a Republican regime led by his former friend William Plumer. But the Republican appointees to the bench eventually petitioned the legislature to restore many of Smith's innovations. |
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As Smith waged his battle for a professional and powerful judiciary, William Plumer underwent a political transformation from Federalist to Republican. Plumer's post-conversion political actions illustrate the venomous factional rivalries that plagued early national politics. Reid depicts young Plumer as an ardent Federalist and receptionist who changed his stripes after a legal conflict ended his friendship with Smith. However, Plumer's early commitment to the receptionist cause seems ambivalent, at best. As a delegate to New Hampshire's 1791–92 constitutional convention, and in his first years as a state legislator, Plumer unsuccessfully lobbied for modest reforms to ensure an independent and professional judiciary. But Reid acknowledges that Plumer never shared Smith's desire to limit the jury's power, nor did he believe in the primacy of judge-made law. Perhaps Plumer's conversion to the republicanist camp did not represent as radical a transformation as did his political defection to the Republican party. Nevertheless, once he took office as Republican governor of New Hampshire, Plumer used his political power to stop his former friend's judicial innovations. |
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Reid's innovative local study inspires further inquiry into the evolution of early American law. For example, he speculates that, because Smith did not habitually communicate his strategies for legal change to the nation's other reformers, individual states' legal processes may have evolved in virtual isolation. Perhaps Reid interprets the law's communication and support networks too narrowly, thus missing some important connections. Political conflict, as Reid asserts, hindered progress toward reform. But Smith's success at constructing a strong political support system kept him in office long enough to effect changes. His New Hampshire political allies were most certainly members of more complex interstate communication networks formed around party issues and professional alliances. Papers of judicial masterminds in other states reveal occasional communications with colleagues who were prominent in their own states' reform movements, but political networks also linked newspaper publishers and participants in town or county law and politics. This extended political and legal kinship provided important conduits through which ideas about law and legal reform passed within, and outside of, state boundaries. As more local studies like Controlling the Law are published, perhaps we will be able to assess more accurately the importance of political and legal networks in these reformers' crusades. |
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| Ellen Pearson
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| University of North Carolina, Ashville |
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