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Bar Journal - Winter 2006

INTERPRETATION AND AUTHORITY: Separation of Powers and the Judiciary's Battle for Independance in NH, 1786-1818

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Not only did these personal acts infringe on judicial authority to “decide private disputes ‘between or concerning persons,”’3 their retrospective nature offended explicit provisions of New Hampshire’s Bill of Rights.4  Further, such acts were simply “by their nature and effect, not within the legitimate exercise of legislative power,” Woodbury reasoned, for they unjustly denied parties their vested legal rights.5  Finally, personal acts undermined the foundations of representative government: since those disadvantaged by special acts did not consent to them, no society whose government drew all its authority from general consent could consider these acts valid law.6

     
To prevent such encroachments on personal rights, Woodbury argued that all power to decide particular cases should be given to a body wholly constrained by the standing law—the courts.
7  Yet, Woodbury argued that the rule of law was only one benefit, which would flow from judicial independence. Independent courts—and only independent ones—could also help to enforce the constitution.  “One prominent reason for creating the judicial, distinct from the legislative department,” Woodbury noted,

was, that the former might determine when laws were thus ‘repugnant’ [to the constitution] and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments.   But the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure review or alter any of the judgments of the judiciary.8

Thus, while past New Hampshire courts had—with legislative acquiescence—voided unconstitutional laws, as long as the legislature could interfere in adjudication, the court’s ability to restrain the legislature within constitutional bounds was fatally limited.

     
Woodbury’s bold claims in Merrill drew little contemporary comment. Forty years previous, however, Woodbury would have been opposed by an enraged legislature and citizenry.   Following the Revolution, many New Hampshirites considered the legislature supreme, subject only to election.  Only after the “licentious” excesses of state legislatures in the 1780s did New Hampshire’s reformers begin to develop the separate powers doctrine on which Woodbury relied.  Throughout the following decades, political actors sharpened and refined this concept.   Most importantly, they discovered in the separate station of each branch the power to check the others.

     
The justices of the Superior Court played a prominent role in shaping separate powers theory, but they were constrained by it as well. While Woodbury declared it the role of the courts to interpret the constitution,
9 he did not declare the courts supreme.   The nature of the court’s rise to prominence in New Hampshire demonstrated that he could make no such assertion. The character of Woodbury’s claim raises important questions about the nature of judicial review more generally.10  This account challenges some contemporary analyses11 and suggests that a broader examination of the judicial role will yield important new insights into the nature of the American constitutional order.  The battle waged by New Hampshire’s courts was, ultimately, a struggle to define the judicial role within America’s unique conception of limited government.

 

By the time Merrill was decided, special legislation was rare.12  At the close of the Revolution, however, it was the most common form of legislation.13  Post-Revolutionary courts lacked procedural sophistication and the public stature of the legislature; they were thus unable to offer adequate relief in difficult cases.   Dissatisfied litigants turned to the legislature, which—following practices established during the Revolution—stood ready to adjudicate these private complaints.   Burdened by limited resources and influenced by habit, the legislature responded with personal legislation on a case-by-case basis. As the prevalence of special legislation indicated, Post-Revolutionary New Hampshirites were little concerned with separating the powers of government.  The legislature stood supreme with the courts but a weak appendage.

     
New Hampshire courts were never well practiced in common law intricacies during English rule, and by the 1780s, they were strangers to all but the most basic forms of judicial practice.
14  Judges, while mostly men of knowledge and experience, were seldom trained in law and had little respect for precedent or procedure; they preferred, “common sense” notions of justice. Even had jurists sought the guidance of precedent, information would have been elusive and incomplete.   New Hampshire judicial opinions were not systematically reported until 1818, and the usefulness of English reports was curtailed by limited availability and American prejudice against British institutions.15  Judges instructed juries, but their instructions were basic, and they deferred to the jury’s judgment even in matters of law.16

     
When attorneys attempted to introduce more regular common law procedure, they were often rebuffed.  For instance, Jeremiah Mason—a young lawyer soon to rise to the top of his profession—had attempted to introduce the demurrer plea into New Hampshire’s courts, but to no avail:

The effect of a demurrer, if he [Justice Farrar] understood it, was to take the case from the jury, to be decided on some question of law by the court. 'If that is so,' said Judge Dudley, 'I am clean against it as being fatal to the rights of the jury.' 'But, your honor,” said Mr. Mason, 'there are, in this case, no facts for the jury to find.'  'So much the better,' said Dudley, 'they will all the sooner bring in their verdict if the facts are undisputed.'17

In another case, Justice Dudley had admonished the jury, “It is our business to do justice between the parties, not by any quirks of the law out of Coke or Blackstone, books that I never read, and never will, but by common sense and honesty as between man and man.”18  Others, like Simeon Olcutt, Chief Justice from 1795-1801, also “manifested less regard for the letter of the law than for the spirit of equity.”19

     
This deference to juries and “common honesty” often meant—as William Plumer, Jr., related in a biography of his father, New Hampshire statesman William Plumer—that

the verdict was an expression of the passions or the prejudices of the jury, and their good or ill will towards the parties litigant, quite as often as the application of any known rules of law to the case in hand.   It was, perhaps, still oftener secured by the superior skill, talent, or adroitness of the attorney employed by the winning party.20

Judges, without the guidance of general statutes, were reluctant to overrule jury decisions and grant new trials.21 Such review often required equitable rulings, which involved suspending established legal rules in particular cases to obtain a more “just” outcome. During the colonial period, the king had granted these chancery powers to governors and their councils, and colonists came to despise them as tools of tyranny and special interest.22 Courts had also been granted some equitable authority before the Revolution,23 but they were reluctant to claim these powers in the democratic atmosphere of Independence. Thus, the first verdict, just or not, often stood.

     
Although citizens distrusted chancellors, disputes requiring equitable resolution multiplied as the post-war economy expanded. Legislators thus provided equitable relief where courts were afraid to act. The legislature, or General Court, preferred to adjudicate in
the same “common sense” manner as judges, proceeding case by case, rather than through the more difficult mode of general statute.
24

     
This procedure was not novel, but based on well-established precedent.  Since its earliest days, Parliament had proceeded by personal legislation in private cases.
25  Further, the House of Lords had served as the highest court of appeal, and it also tried cases of impeachment—which in England extended to actual criminal and civil prosecution.26  The exercise of judicial power by colonial legislatures had also played a prominent role in resistance to British rule. Lawmakers had claimed, as representatives of the people, the prerogatives of independent “parliaments,” including the power to act judicially.27 New Hampshire’s legislators granted new trials in direct contravention of royal orders, and—claiming sole power to control the courts—they passed laws to free the judiciary from royal control.28

     
Influenced by memories of the legislature’s prominent role in protecting individual rights during the Revolution, disgruntled litigants often petitioned the legislature for redress.   Legislators responded through the traditional mode of special legislation, which took various forms. Often, these acts “restored parties to their law,” granting them new trials to introduce further evidence, or removing the default judgments so common in New Hampshire due to harsh weather and limited transportation.
29 At times, however, the legislature more explicitly overturned court decisions, as in “An Act to annul & make void two judgments of court obtained by Margaret Frost against Thomas Pinkham,” in which the legislature reversed two judgments that Frost “had unjustly unfairly and surreptitiously obtained [sic] ... of the inferiour court of common pleas.”30  Most often, however, special acts were far less dramatic, removing procedural roadblocks or “impowering” courts to act in particular cases. Illustrative is “An Act to establish a certain judgment of the Quarter Sessions of the Peace for the County of Hillsborough in favor of John Smith against the selectmen of Peterborough,” in which legislators corrected a clerk’s mistake which had deprived Smith of a large judgment in his favor.31

     
As the prominence of special legislation indicates, newly independent New Hampshirites were little concerned about separating the powers of government.  New Hampshire’s colonial and Revolutionary experience had taught that legislative involvement in executive and judicial matters protected personal rights, rather than endangering them.
32  Faced with disorganization caused by war, newly independent states organized their governments in a simple fashion, with the legislature directing most of the basic functions of government.33

     
Revolutionary rhetoric also buttressed the legislature’s claims to broad authority. In resisting the crown, legislators had argued within the traditional English concept of government by three equal and independent estates.
34  They claimed to defend the equal position of the commons against encroachments by the king and his nobles.35 Because the commons held exclusive control of colonial “parliaments,” the struggle for democracy became a struggle for legislative control.36  With the expulsion of royal power and the absence of entrenched aristocracy in a newly independent America, the legislature—defender of the common people—reigned supreme.37

 

In the 1780s, the nature of legislation began to change.   Encouraged by the democratic rhetoric of the Revolution and no longer restrained by the demands of war, radicals began to attack legislatures as unrepresentative and demand populist measures, such as debtor relief and increased special legislation. Concern over this unrest, which some feared was leading to “democratic despotism,” prompted New Hampshire’s constitutional reformers to propose a new system of separated powers.  This system was at first only vaguely defined and imperfectly applied, but it provided the foundation from which New Hampshire’s judiciary could begin to battle for interpretive independence.


New Hampshire’s neighbors, along with much of the nation, were racked by intense populist discontent during the 1780s. Populist pressures led to “licentious” laws invalidating contracts, issuing devalued paper currency, and the like.38  National leaders condemned this legislation as “democratic despotism.”39  For example, Noah Webster lamented in 1788, “So many legal infractions of sacred right—so many public invasions of private property—so many wanton abuses of legislative powers!”40 To New Hampshire’s west, Vermont had blocked enforcement of debts and contracts; by mid decade, nearly nine-tenths of all court activity had ceased.41  In 1786, New Hampshire’s parent state of Massachusetts itself experienced Shay’s Rebellion, perhaps the most dramatic example of the social discontent that infected the nation.42

     
Even while populist unrest was in its early stages, national observers, like Thomas Jefferson, feared that states were particularly susceptible to populist demands for such legislation because “[a]ll the powers of government, legislative, executive, and judiciary, result to the legislative body.”
43 Early on, New Hampshire’s reformers heeded Jefferson’s admonition.

     
In 1784, New Hampshire’s leaders met in constitutional convention, where they proposed separating the powers of government.  Similar proposals had been previously rejected by a populace still afire with the democratic rhetoric of the Revolution and partial to legislative supremacy.
44  The delegates thus crafted a plan which placed weaker restraints on the legislature than earlier proposals, but nonetheless instituted significant reforms.  “These three important powers executive, legislative, and judicial we have thought proper to keep as separate and distinct as possible,” declared the delegates, “for ...  if they should be all united, the government would then be a complete system of tyranny.”45  In particular, delegates feared that “ if the legislative and judicial power should be united, the maker of the law would be the interpreter thereof, and might make it speak what language best pleased him, to the total abolition of justice.”46

     
Despite their solicitude for judicial independence, reformers concentrated on enhancing gubernatorial powers.
47  They declared the governor, called the President, “a supreme executive magistrate,”48 and limited the General Court to exercising “the supreme legislative power.”49  The delegates refrained, however, from declaring the judiciary supreme in its realm; indeed, they barely defined its powers at all.50  For the delegates, the judicial function was still vaguely understood, and the court had little role to play in limiting legislative excess.51

     
Perhaps concerned over early murmurs of populist unrest, New Hampshirites ratified the convention’s proposals.
52  These reforms proved inadequate, however.  New Hampshire itself experienced increasing unrest after 1784.   In 1786, when legislators ignored their petitions for paper money, radicals armed themselves and marched on the statehouse. While the riot was soon crushed, legislators became increasingly unwilling to oppose popular measures.  They issued a paper money referendum soon thereafter, and some legislators began to encourage special legislation as a means to promote populist interests.53  The paper money referendum was itself defeated, but personal acts became increasingly common.54

     
These developments worried reformers: “Our liberties, our rights & property have become the sport of ignorant unprincipled State legislators!”
55 exclaimed William Plumer in 1787.  In particular, reformers were concerned about the large number of personal laws passed by the legislature.  They complained that special acts encouraged influence peddling.56 Influential citizens, like the powerful Sherburne family, could gain favorable rulings for themselves and their friends.57  Plumer described one such instance:

The Sherburnes have again applied for a new trial in the case of Mrs. Wallingford against them ... This bill is founded in great injustice. Sound policy requires that a period should be fixed beyond which litigation should not be permitted.  And in this particular case I have no doubt but that the justice which the law intended has been done [by the courts].58

Special legislation also allowed legislators to play to rising populist sentiment, painting themselves as “friends of the little guy.”  Jeremiah Mason related one such instance in his autobiography.  Early in the 1790s, he was retained to prosecute a poor man for stealing two pigs.  When Mason’s client stole the poor man’s summons, the poor man lost the case by default.  Upon learning of the situation, Mason offered to retry the case, but the poor man refused and applied to the legislature for a new trial.  Legislators quickly granted his request, without even speaking to Mason’s client.   While the injustice in the case was blatant, Mason felt the legislature acted carelessly and unnecessarily.   Perhaps their desire to correct injustice blinded them to other avenues, or perhaps, Mason suggested, their desire to appear to be correcting injustice was greater.59

     
It is unclear how often special acts were necessary to justly resolve disputes, but as the Sherburnes’ bill and the “pig case” demonstrate, they were often used for less noble ends.   Yet, concerns about the particular improprieties bred by special legislation were perhaps less important to influential reformers—men who stood to gain handsomely from their connections
60—than concerns over ramifications for law and commerce more generally.  Plumer complained that the legislature was consumed by private bills to the extent that “public  business  is put off to near the end of the session, when the members become impatient.”61  Not only did this practice bring the legislature into disrepute, but it severely hampered development of necessary regulations.62  Further, special acts created uncertainty, extending litigation, and failing to provide clear legal rules around which parties could plan.63  Finally, reformers feared that precedents allowing legislative review of judicial decisions might lead legislators to interfere further in the decision of particular controversies, to the point that private interest and public passion would determine all outcomes, “to the total abolition of justice.”64

     
Thus, worried about recent excesses but emboldened by the success of the federal convention,
65 New Hampshire’s leaders again repaired to constitutional convention in 1791.   Merely separating government powers had proved insufficient to limit legislative power, so delegates proposed that separate branches be given tools to check one another.   Again, delegates focused on strengthening executive authority, giving the “President” limited veto power.66  However, delegates also attempted more sharply to define the nature of judicial authority.   Under Plumer’s leadership, the convention proposed eliminating many lower courts, often bastions of incompetence.67  They also sought to place equitable authority—explicitly including the power to grant new trials—firmly within the judicial branch.68 Through these reforms, delegates sought specifically to eliminate special legislation.69

     
Voters rejected the convention’s judicial reforms, however.  Or, at least, some voters did: the constitutional referendum drew a markedly lower turnout, over half less than a gubernatorial election a few months previous. Plumer ascribed voters’ apathy to an “inability to decide the questions submitted to them.”
70 Perhaps fear of radical reform scared voters away, but other factors also contributed to the referendum’s defeat. Some with populist leanings feared vesting chancery powers in unelected courts, warning “a chancellor ... is a man who can do any thing he pleases in spite of the law.”71 Such commentators also appealed to public fear of the legal profession, warning that lawyers were attempting to aggrandize their power at the expense of liberty.72  Others, less afraid of the legal profession, nonetheless worried that chancery powers would be vested in one person.   The dangers of such an arrangement were clear:

[Judicial discretion, as Lord Camden had stated] is the law of tyrants; it is always unknown; it is different in different men; it is temperamental and depends on constitution, temper, and passion.   In the best it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable.73

Plumer claimed John Samuel Sherburne, infamous for using his influence to gain special legislation, authored this warning.74  This fact suggests that powerful men with an interest in the viability of special legislation might also have played a role in defeating judicial reform.

     
Despite partial popular rejection, convention delegates’ arguments for reform proved an important innovation.   Drawing on their English heritage, New Hampshire’s reformers had developed a conception of government similar to that conceived in Philadelphia, an understanding unique to the American experience. Americans were heirs to three different conceptions of limited government. First, they were influenced by the ideas of England’s Whigs, who had emphasized separating powers to prevent one estate from gaining tyrannical control of the government.
75  Second, they looked to Locke and Montesquieu, for whom separated powers ensured the rule of law.76  Third, reformers drew on the theory—prominent in Roman legal thought and later championed in England by Lord Coke—that legislation must be limited within basic principles of justice and reason drawn from nature; for these theorists, separated powers were a tool for regulating not only the lawmaking process, but the objects of legislation as well.77

     
New Hampshire’s leaders combined these theories in a novel form.  Separating governmental powers no longer prevented estates from exercising tyrannical control, but prevented the dominance of factions, both minority and majority. In part, this was achieved by the procedural constraints of a separated powers system, which allowed coordinated government action only through the medium of law.   The “rule of law” prevented many abuses by forcing government to proceed by general rules which applied to all equally.   Yet, merely declaring government powers separate was insufficient.  As delegates to the 1791 convention began to discover, separate branches needed tools with which to check the activity of the others.  As the development of an executive veto suggests, delegates saw “checks and balances” as a means to limit the objects of legislation.  The “licentious” laws of the 1780s offended many citizens’ conceptions of basic justice; reformers felt that non-legislative branches should not merely enforce these laws impartially, but that they ought to force the legislature to reconsider its position.

     
Political developments would soon demonstrate that checks on the legislature could also empower other branches to defend their independence. Special legislation constituted a breakdown of the barrier between legislative and judicial function.  In a manner unforeseen by reformers, the court discovered within its independent station tools to check this legislative encroachment on its power.  Only when the judiciary claimed true interpretive independence could it also itself claim an independent role in limiting the objects of legislation.

 

As delegates convened in September of 1791,78 the Superior Court of Judicature itself began to demonstrate the seminal role it would play in shaping New Hampshire’s separate powers scheme. The same month, the court for the first time declared a special act unconstitutional. When lawmakers continued to legislate in individual cases, the court periodically refused to enforce these acts, choosing those which best demonstrated the dangers of special legislation.  As those cases illustrate, judges discovered in their separate station, however incomplete, the power to defend both the constitution and their own authority: they simply refused to act within their own judicial sphere. This discovery and its development by New Hampshire’s judiciary played a central role in defining judicial review as Woodbury described it in 1818.

     
In 1790, the Superior Court of Judicature affirmed a ruling against Elisabeth M’Clary in an action for debt brought by Nathaniel Gilman, a Portsmouth merchant.
79  Dissatisfied, M’Clary petitioned the legislature for a new trial.  Perhaps at the urging of Michael M’Clary—State Representative from her hometown of Epsom80—the legislature granted her request.81 In 1791, M’Clary appeared before the bombastic John Pickering—Chief Justice of the Superior Court—to reenter her case.   Appearing for Gilman, William Plumer moved to quash the proceedings, arguing that if M’Clary’s act truly granted her a new trial, it was void as an unconstitutional usurpation of judicial authority.82 In a bold and terse opinion, the court embraced Plumer’s argument, ruling that “the act is ineffectual and inadmissible, and that the said action be dismissed.”83

     
“It [the M’Clary decision] was the exercise of a high and delicate act of power,” noted William Plumer, Jr., “which struck, in this case, at a long established and cherished usage....  Some clamor was indeed made against the judges, as putting themselves above the Legislature.”
84  Another observer noted that “recall of judicial decisions, by popular vote,  was adopted as a rallying cry by ambitious politicians for their excited followers ...  A apprehensions of ... judicial tyranny because of ‘Judge made law’ ... possessed the mind of the more vociferous of the free people.”85 Past courts had invalidated unconstitutional laws, and the legislature seemed quick to repeal them;86 however, they had not before struck at so “long established and cherished [a] usage,” nor had they ruled in a case bearing so directly on legislative prerogative.   Clearly, the court clung to its power only tenuously at this early date.

     
Nonetheless, the complaints of reformers and the courts did not fall entirely on deaf ears. The number of special acts began to decline, and 1791 was a signal year for acts of a general nature.
87 In 1792, citing the burdensome volume of petitions for new trials (but not the M’Clary case), legislators also empowered the Superior Court to grant new trials.  This act provided statutory sanction for an appellate process developed during the colonial era, but which the Superior Court had been unwilling to exercise in the democratic atmosphere of Independence.88

     
This process of legislative reform continued under sustained pressure by the court.  While the judges had been unable to arrest special legislation entirely, M’Clary suggested a means to that end.   By simply refusing to act within its own sphere, the judiciary was able to check the legislature.  Unless legislators took the uncomfortable step of trying the case themselves, they would be unable to give M’Clary—or any one else—a new trial unless the court cooperated.   The value of judicial obstructionism was limited in the democratic-populist atmosphere of the day, however.   The court found it necessary to chose carefully which bills it challenged.

     
The court learned this lesson early.  Soon after M’Clary, the court heard the “pig case” noted earlier.  After the Superior Court refused to grant the pig thief a new trial, legislators ordered the Court of Common Pleas to hear the case.   They too refused to hold a new trial, and the case died.
89 This case proved a poor choice for the court.  On its face, the act defended a poor man against the legalistic schemes of the rich, just as special acts were intended to do.   With facts so favorable to the legislature, the decision apparently did little to advance the court’s position.90

     
The court soon found more favorable ground on which to fight.   Jenness v. Seavy began in 1786, when the Court of Common Pleas affirmed a ruling against the estate of Richard Jenness for debts owed.
91  In 1790, claiming to have discovered new evidence, Richard’s sons petitioned the legislature for a new trial.92

     
The General Court was familiar territory for the Jenness family.   Samuel Jenness, perhaps an uncle of the petitioners, had served from 1784-1787. One of the petitioning sons now sat in the legislature as well.
93  Earlier during that son’s tenure, the Jenness brothers had already obtained another special act regarding their father’s estate.94  Undoubtedly aided by their familiarity with legislators and the petition process itself, the brothers soon obtained an act declaring “all proceedings had upon the judgment ... null and void” and ordering a new trial in inferior court.95  The Superior Court dismissed the case, holding the act unconstitutional.96  Apparently, the judges particularly objected to the blatant nullification of their ruling and to the vesting of appellate powers in an inferior court.

     
In June 1794, the legislature again granted the Jenness brothers a new trial, this time in Superior Court.  The legislature adopted a more conciliatory tone, however.  This bill did not explicitly annul the past judgment, but empowered the brothers to

defend said action of Review in their said capacity as fully & in the same manner as if said Cause had never been referred, or any report made or judgment rendered therein & as if the Judgment aforementioned had been given on the verdict of a Jury, that so the merits of said demands maybe tried by their country.97

While the act did void the previous ruling, its language seemingly gave the court wide discretion and suggested that the legislature had made only a minor adjustment. Perhaps fearing even this language might prove too strong for the court, legislators also reaffirmed the court’s power to grant new trials during the same session.98

     
Apparently the court remained unmollified, for in 1797, the legislature granted the Jenness brothers a third new trial.
99 The legislature was particularly reluctant to challenge the court at this point, perhaps in response to another case decided that year, where the court had again invalidated a special law.100  Legislators refused even to demand a new trial explicitly, ordering only that the court “take into Consideration all the Circumstances of the aforesaid Action and if in their opinion Justice shall require it to grant to the said Administrators a new trial or review thereof and the process on said review or new trial shall be the same as in other Cases.”101

     
In 1799, the court again denied the brothers a new trial,
102 placing this decade-long legal battle to rest.

     
By standing firm in this particular series of cases, the court was able to highlight the dangers of special legislation. Seavy’s claims fell under repeated attack for over a decade, subjecting him to ruinous legal bills and constant insecurity, just as Plumer had warned.
103 Further, the Jenness brothers had used their influence to escape an agreement freely entered into, apparently using spurious claims of new evidence to cloak naked self interest.104 As the increasing timidity of legislators’ responses indicates, the public grew dissatisfied with the brothers and the legislature’s role in promoting their interests. While lawmakers continued to pass some private acts, for nearly a decade after Jenness was decided, the legislature refused to grant new trials.

     
In 1808, however, in the case of Chickering v. Clark, the legislature again asserted its power to annul Superior Court decisions. Even nearly a decade after Jenness, legislators penitently explained that they had acted only because unusual circumstances rendered the Superior Court deadlocked on granting a new trial in this case.
105 Political factors may also have played a role, however.  In 1808, Republicans had gained the legislature after nearly five years of Federalist control.106 Republican legislators were likely eager to challenge recently appointed federalist judges. Obviously, control over the courts was an important issue at the time, for, when New Hampshire Republicans found themselves challenged at the polls the next year, they made frantic attempts to pack the court.107 Whatever the legislature’s motives, the court declared this act unconstitutional as well.108

     
Constitutional reformers had sought both to separate the powers of government and to limit the objects of legislation.  They looked in particular to the executive, granting him veto power and declaring him supreme in his arena.   Governors, however, did little to stem populist legislation in general, and special acts in particular. Beholden to a similar constituency, popular pressures proved too great.   Ironically, New Hampshire’s final special act bore the signature of none other than that great opponent of personal legislation, Governor William Plumer.
109

     
It was rather the court that came to check legislative excess.  Weak at first, jurists found tools within the separate powers scheme to check the legislature and define their own area of authority.   In their struggle for independence, judges had to convince a hostile audience. They found it necessary to limit their activity to bills clearly demonstrating the dangers against which they fought.  Democratic sentiments also forced this unelected branch to void laws only sparingly, thus avoiding the appearance of encroaching on jealously guarded legislative prerogative.  This careful tradition became an important part of Justice Woodbury’s seemingly bold claim to judicial review.

 

With Dolly Merrill’s act, the legislature granted its last new trial.110  Soon after the Merrill decision, the legislature asked the court whether in any case it might constitutionally pass special legislation.   The court forwarded a copy of the Merrill decision in response, noting that Woodbury’s opinion “involved  most of the principles, which would govern our opinion on the questions proposed in the resolve.”111 The court, however, refused to offer an absolute statement of the legislature’s authority.112

     
This new relationship between New Hampshire’s judiciary and the legislature provides important insights into the nature of judicial review.  Woodbury’s theory did not establish the court “supreme” arbiter of the constitution, as some have suggested.  Rather, it provided judges an independent part in the political functions of government.   The nature of this role was limited by the characteristics of judicial power and the separate powers environment within which the court acted.  As some scholars have noted, federal courts operated within a similar separate powers scheme.   The character of Woodbury’s claims can thus highlight important aspects of judicial review on the national level as well.   Ultimately, the judiciary’s battle for interpretive independence in New Hampshire was a struggle to define the role courts would play within America’s unique conception of limited government.

     
Relying on this new American theory as formulated by New Hampshire’s reformers, Woodbury claimed in Merrill the “unquestionable” power to void clearly unconstitutional laws.
113  Citing Hamilton’s argument in Federalist No. 78, he argued that this power flowed ineluctably from the court’s station as the independent interpretive authority within government.114 In claiming these important powers, Woodbury stood upon the work of his predecessors, who had played an essential role in defining the extent of the court’s power.  Almost thirty years after these jurists began their struggle, legislators finally recognized the court’s prominent and independent role in republican government.

     
However, the theory of separated powers from which jurists had carved this powerful role limited their claims as well.   The court could act only in clear instances of abuse, and, as Woodbury’s elaborate opinion demonstrates, it also needed to formulate extensive arguments in support of its position.  These tactics allowed courts to demonstrate that judicial independence was necessary to protect liberty, while also assuring observers that judges wished merely to defend the constitution, not impose their own beliefs on the law.  Were the court to step beyond these bounds, it would fall perilously close to the blurry line separating interpretation and legislation.
115  So, to encroach on legislative prerogative was to deny that the powers of government should be separated, fatally undermining the court’s own claim to independence.

     
The Merrill decision thus instituted an unspoken peace treaty between the branches, providing the comity between separated powers without which governance under this theory would become impossible.  This pact established new ground rules for interbranch relations, but it did not end conflict.  This continuing tension would regulate their relationship, just as it had shaped the basic boundary between legislative and judicial power.  Through constitutional debate, the legislature would defend its concurrent power to interpret the constitution, helping to define its relationship with the courts and even to guide their reasoning.
116  Were the legislature to neglect constitutional questions, however, the court could claim a greater area of exclusive constitutional interpretation for itself.117  On the other hand, if the court stepped beyond interpretation into the realm of legislation, the General Court could remove judges by address to the governor.   Were legislators to attack the court unfairly, however, jurists could still refuse cooperation, as they had before Merrill.

     
Woodbury’s extensive arguments illustrated one of the most important terms governing this “truce.” As Robert Burt has noted, national reformers envisioned American government as a “reasoning relationship”—a search by equals for the common good.
118  New Hampshire’s reformers shared a similar vision.  Like Madison, they feared the power of factions to push through legislation disadvantageous to others. By separating the branches, they sought to force government to act only in ways which benefited the whole. Aided by an increase in legal learning and the recent publication of judicial reports,119 the court played a uniquely prominent role in this process.   The court’s particular function was to explain from established principles why government coercion was proper in a particular case.  If constitutional objections prevented the court from effectively exercising this legitimizing function, the authority of the whole government would suffer.120  Were the legislature to ignore the court’s honest constitutional objections, legislators would severely undermine their own authority: their laws would be exposed as mere acts of force, deserving no respect.

     
Were legislators to ignore the court, jurists would likely return to obstructionism, and the machinery of government would grind to a halt.  Thus, the court’s reasoning was not merely a means to protect citizens’ rights, but also a lubricant for the gears of government. Argument encouraged counter argument and compromise, not obstruction and stalemate. Thus, only through constant “constitutional conversation” could the separate powers system function smoothly.  The obstructionism of years past remained a fortress of last resort, but ongoing debate proved a more convenient principle by which to govern everyday relations.

     
This analysis stands at odds with the observations of many scholars examining judicial review on the federal level. Charles Grove Haines, looking to state practice as precedent for national judicial review, focused on signal cases— like Merrill—in which he claimed that courts established themselves as “supreme” arbiters of constitutional meaning.
121  If less explicit about the exact range of their powers, others clearly have imagined that early courts enjoyed broad and unilateral authority to resolve disputes over constitutional meaning.122

     
The analysis offered by other scholars, however, suggests that New Hampshire’s experience was illustrative of national trends as well.  Donald Morgan describes the importance of “coordinate” theories of judicial review before the Civil War.  Under this theory, all three branches of government played a role in defending and interpreting the Constitution.   Legislators debated constitutional questions, and the court looked with deference to their reasoning.  Only as a last resort, the courts themselves also stood ready to guard constitutional liberties.
123

     
Robert Lowry Clinton has described a similar scenario.   Marbury, he noted, was a decision involving the powers of the judiciary itself.  Only much later did the court claim against Congress the power to act outside matters “of a judiciary nature.”  If each branch exercised only those powers given it within the separate powers scheme, different branches would effectively have the final word on constitutionality in different areas; the courts could speak with finality only on questions involving judicial power and procedure.
124

     
Robert Burt has also argued that attempts by the Supreme Court to establish itself as “supreme” enforcer of the Constitution have diminished its authority. When the court stepped away from attempts to create constitutional consensus and forced its own views on the legislature, the court’s frustrated opponents grew increasingly recalcitrant and violent. Burt points in particular to Dred Scott v. Sandford, which encouraged attacks on the court and contributed in large measure, he argues, to the Civil War.
125

     
These scholars’ work suggests that the story of Merrill v. Sherburne highlights important aspects of American judicial review more generally. Looking beyond particular court precedents to the relationship between the judiciary and other branches illuminates aspects of the court’s authority, as well as the constraints under which jurists worked.   This account suggests first that judicial review was a political act, just as surely as it was interpretation.
126  Relying on a theory of government which sought to limit the objects of legislation, courts claimed a limited control over substantive aspects of legislation.  While constitutional framers may not have foreseen the powerful role courts would play in the policy arena, neither was the role they defined for themselves at odds with the framers’ concepts.127 Only if one argues that the courts claimed “supremacy” does judicial review appear anachronistic; the more limited conception of judicial function expressed in New Hampshire suggests judicial review constituted an integral part of Americans’ search for limited government.

     
Merrill’s history also directs our gaze to the role of constitutional debate outside the court.   As Morgan notes, many constitutional issues never come before the judiciary and must be resolved outside the legal forum.  To concentrate our whole attention on judicial interpretation of the fundamental law is to impoverish necessary debate outside the courtroom.
128  Morgan also notes that controversy and crisis have at times eliminated legislative debate of constitutional issues. As Woodbury’s theory suggested, the result has been an aggrandizement of judicial authority.129  The court has become “supreme” only in those areas of constitutional argument in which other branches have declined to participate.

     
Finally, the battle over special legislation in New Hampshire shifts our emphasis from the theory of judicial review to the political tools upon which the court relies to support its decisions.   Clinton suggests that the court may rule with finality only upon questions involving the extent of its own constitutional authority.
130  New Hampshire’s story, however, suggests otherwise.   While the court did examine the question of judicial authority, its emphasis was not on its own procedure, as in Marbury, but on that of the legislature.   The court acted, within the confines of its constitutional authority, to prevent the legislature from itself exercising judicial power. As Burt suggests, the court—while not the final arbiter of constitutional questions—played a central role in protecting the constitution.131 Relying on strategic choice of issues and persuasive argument, the court exercised both its practical power of obstruction and its moral authority to limit the objects of legislation—whether involving judicial authority or not.

     
Yet, as surely as the court’s arguments instruct public debate, they are guided by it as well.   As Morgan explains, valuable constitutional argument involves not only jurists, but philosophers and men of practical political experience as well.
132  If constitutional argument becomes exclusively legal, its persuasiveness is limited for broad sections of the public. If jurists are unable to appeal to familiar chords within the public consciousness, much of the promise offered by Woodbury’s bold arrangement proves chimerical.  Unable to argue persuasively against particular laws, the court is left merely to obstruct the legislative will in particular cases. Even in less extreme instances, the court’s ability to foster “constitutional consensus” is limited by the tenor of the public sentiments to which it appeals.

     
Thus, Merrill’s history illuminates aspects of judicial review largely ignored in debate on the issue.  The court’s authority was less “supreme” than balanced between extremes.  The court claimed an important political power, but one shared with other coordinate branches.  The court led public opinion, but was at the same time constrained by it.  The court provided an important constitutional safeguard, but not an all-sufficient or exclusive one.  Only by viewing judicial review as part of a larger scheme of limited government can we properly understand the role courts have played in the American constitutional order.

APPENDICIES
Appendix 1:  Acts of the General Court of NH, 1784-1820
Appendix 2:  Thr Role of Influence in Obtaining Special Acts in NH, 1784-1820

ENDNOTES

1.     1 NH Reports 203; not all the justices participated in the decision, but they all later endorsed its reasoning.   See infra note 111.

2.     Id. at 203-212.

3.     Id. at 204, quoting the New Hampshire constitution.

4.     Id. at 213.

5.     Id. at 214.   Justice Woodbury, quoting the opinion of United States Supreme Court Justice Samuel Chase in Calder v. Bull, (3 Dallas’ Reports, 386), defined vested rights as “‘the right to do certain actions or possess certain things,’ which [the citizen] has already begun to exercise, or to the exercise of which no obstacle exists in the present laws of the land.”  The violation of vested rights was considered to work grave injustice, for it ultimately demanded that the divested party arrange his affairs in accord with legal provisions yet to be formulated in order to retain property and privileges gained in transactions protected by law at the time of their consummation. Woodbury’s insistence that laws divesting legal rights were outside legitimate governmental authority and thus void was founded in the old English understanding that acts “contrary to common right and reason” were void in and of themselves.   See, eg., Justice Lord Coke in Dr. Bonham’s Case.  English theorists thought law, by definition, declared preexisting principles of right and wrong.   Where laws deviated from “natural reason,” they could no longer claim the title of laws.   Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” in Edward Loss, ed., Corwin on the Constitution, 3 vol. (Ithaca, 1981), 1:108-117 (hereinafter cited as “CORWIN, HIGHER LAWS”); See also infra note 77.

6.     This explanation, of course, ignores the question of representation and majority rule.  This apparent contradiction may have been resolved by an argument similar to the following: If a law bound all equally, the approval of a few widely chosen representatives could be considered essentially that of the whole.  An unjust general act was considered dangerous for everyone, or at least for a great majority of citizens, and hence the approval of a majority was considered the sufficient (and only practicable) indicator of general public consent.  The representative fiction thus rested on the general nature of laws.  With special acts, which disadvantaged certain parties over others, the fiction broke down entirely and the act could not be considered a product of consent without the explicit approval of the parties involved.

7.     1 NH Reports 203.

8.     Id. at 210.

9.     Id. at 201.

10.    See Donald Morgan, Congress and the Constitution (Cambridge, 1966)  (hereinafter cited as “MORGAN”); Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Kansas, 1989) (hereinafter cited as “CLINTON”); Robert Burt, The Constitution in Conflict (Cambridge, 1992) (hereinafter cited as “BURT”).

11.    See Charles G. Haines, The American Doctrine of Judicial Supremacy  (Berkley, 1932) (hereinafter cited as “HAINES”); Raoul Berger, Congress v. The Supreme Court (Cambridge, 1969) (hereinafter cited as “BERGER”); Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, 1990) (hereinafter cited as “SNOWISS”).

12.    See appendix I.

13.    Id.

14.    See generally, William Plumer, Jr., The Life of William Plumer 149- 156 (Boston, 1857) (hereinafter cited as “PLUMER JR.”), and Herbert Parker, Courts and Lawyers of New England 4 vol., 3:538-542 (NY, 1931) (hereinafter cited as “PARKER”).   On February 5, 1793, William Plumer wrote to Jeremiah Smith that “... the court of Common Pleas ... [was] so feeble as to be unable to perfect a trial in any suit ... unless the parties consent.   What an absurdity in jurisprudence!”   William Plumer Papers, Reel 2 (Library of Congress.)

15.    John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Columbia Law Review 566-572.

16.    William E. Nelson, The Eighteenth Century Background of John Marshall’s Jurisprudence, 76 Michigan Law Review 902-917 (hereinafter cited as “NELSON”).

17.    PLUMER, JR., at 156-157; Chief Justice Pickering, also sitting in this case, referred to common law procedures as "inventions of the bar to prevent justice."

18.    Id. at 154.

19.    Id. at 152; see also PARKER, at 541-542, describing the jurisprudence of early national New Hampshire judges like Samuel Livermore in similar terms.

20.    PLUMER, JR., at 151.

21.    Alfred S. Konefsky and Andrew J. King, eds., The Papers of Daniel Webster 64-65 (Hanover, NH, 1982) (hereinafter cited as “KONEFSKY & KING”), NELSON, at 912-917.  Courts had developed review procedures during the colonial era, but they were reluctant to exercise them.   See infra note 88 and accompanying text.

22.    PARKER, at 484; for a similar and more detailed account of chancery law in the colonies see Stanley Katz, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” in Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order 46-52 (Cambridge, 1988).  Katz describes the battle over chancery in New York, where the governor was granted equity powers.  Some governors had become embroiled in proprietary controversies and used their position as Chancellor to advance private interests.  The people despised this arrangement, and the legislature began to claim that it alone had the power to establish courts, as did the Parliament in England.  Resistance was so harsh that several governors refused to exercise equity powers.

23.    PARKER, at 495-496.

24.    See generally, Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, UK, 1979); Atiyah ascribes the preference for case-by-case action in large part to the limited resources of early legislatures. Parliament, he notes, began to proceed by general statute when its capacity increased.   While such organizational innovations likely played a role in New Hampshire, constitutional criticism by the courts provided an equal, if not greater, impetus for change.  See appendix I.

25.    Id. at 91-95.   Parliament was thought to act judicially even in areas we would today consider strictly legislative.   All law was thought simply to declare and apply preexisting “natural Law,” not actually to create new law.

26.    Mary P. Clarke, Parliamentary Privilege in the American Colonies 5, 31, 40-41 (New Haven, 1943) (hereinafter cited as “CLARKE”).

27.    Id. at 268-269.   See also, Jack P. Greene, Peripheries and Center 31-32, 35-37 (Athens, GA, 1986).

28.    CLARKE, at 31.

29.    PLUMER, JR., at 163-164.

30.    5 Laws of New Hampshire, 89.

31.    Id. at 90-91.

32.    Gordon Wood, The Creation of the American Republic, 1776-1787 157- 159 (NY, 1969) (hereinafter cited as “WOOD”).   During the colonial era, the governor and the courts were the king’s agents, and they were used to limit the legislature.   Newly independent Americans thus saw these branches as dangerous to liberty, and sought to limit their influence.

33.    Edward S. Corwin, “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention,” in Edward Loss, ed., Corwin on the Constitution 3 vol., 1:63 (Ithaca, 1981) (hereinafter cited as “CORWIN”), See also the New Hampshire Constitution of 1776 in Benjamin Perley Poore, Federal and State Constitutions 1278-1279 (Washington, 1878).

34.    Bernard Bailyn, The Origins of American Politics 22-23 (NY, 1970); The English government was said to contain the three classical forms of government—democracy, oligarchy, and monarchy—in one system, balancing the benefits of each against the evils of the other.  The House of Commons held the power to initiate legislation, but such bills could not become law without the approval of the House of Lords and the king; see also WOOD, at 153.

35.    CLARKE, at 1-2.

36.    This occurred to an extent in England as well, but for different reasons.   For Bollingbrook and other opposition Whigs, limiting the commons and the nobles to legislation and the king to the exercise of executive powers provided for (1) the rule of law and (2) checks and balances between estates. Other opposition figures during the interregnum also had promoted separation of powers in the name of securing the rule of law.   See W.B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from its Origins to the Adoption of the United States Constitution 28-65, 82-99 (The Hague, 1965) (hereinafter cited as “GWYN”).

37.    WOOD, at 155, 344-354; CORWIN, at 60.

38.    WOOD, at 403-409.

39.    Id.

40.    Id. at 410.

41.    TURNER, at 44.

42.    Id. at 285, 412.

43.    Thomas Jefferson, The Notes on the State of Virginia (1782) in Merrill Peterson, ed., The Portable Jefferson (NY, 1975) 164.

44.    TURNER, at 44.

45.    Address of the Convention, Journal of the Convention, 1784, in appendix, NH State Papers 847 (Concord).

46.    Id.

47.    WOOD, at 435; the convention termed the governor “the soul ... without [which] the body politic is but a dead corpse.”

48.    New Hampshire Constitution, 1784, THE PRESIDENT.

49.    Id. THE GENERAL COURT, THE SENATE, THE HOUSE OF REPRESENTATIVES.

50.    Id. THE JUDICIARY.

51.    Early Americans had little concept of an independent judiciary.  Often, they would refer to both the executive and judicial power together as “the magisterial power.”  See, WOOD, at 454.

52.    TURNER, at 44.

53.    PARKER, at 541-542.

54.    Lynn W. Turner, William Plumer of New Hampshire, 1759-1850 20-25  (Chapel Hill, 1962) (hereinafter cited as “TURNER”).

55.    William Plumer to Daniel Tilton, Dec. 16, 1787, in Id. at 25-26.

56.    Plumer to U.S. Senator Jeremiah Smith, January 2, 1795, William Plumer Papers (Library of Congress) Reel 2.   Plumer wrote, What a ridiculous figure does the legislature make?   How inconsistent!  They inform the governor that they think the business for which he convened them was important; but when they act on that very business they resolve it is a meer [sic] private suit in which the state has no interest, & in which they will do nothing but lend their name to a complaint!”

57.    See Plumer to Smith, January 2, 1792, Id.; TURNER, at 40.

58.    Id.

59.    Jeremiah Mason, Autobiography, in Memoir and Correspondence of Jeremiah Mason, 126-127 (G.S. Hillard, ed.) (Cambridge [Riverside Press], 1873) (hereinafter cited as “MASON”).

60.    PLUMER, JR., at 171.

61.    Plumer to Smith, January 2, 1792, reel 2.

62.    Proceeding by special act itself hindered the development of general rules, beyond crowding out other proposals on the legislative calendar.   The Pennsylvania Council of Censors highlighted this problem: the people “have been taught to consider an application to the legislature as a shorter and more certain mode of obtaining relief from hardships and losses, than the usual process of law.”   WOOD, at 408.  Thus, special legislation provided a “band aid” solution to problems, lessening pressure to institute the fundamental reforms—general regulations and refinement of judicial procedure—needed truly to remedy deficiencies.

63.    Plumer to Smith, January 2, 1792, reel 2.  “Sound policy requires that a period should be fixed beyond which litigation should not be permitted.”   Plumer’s son also alluded to this problem in a biography of his father: “The chances of protracted litigation, as the law then stood, were very great ... it will readily be believed that suitors seldom got what the bill of rights promised them—’Justice freely, without being obliged to purchase it; completely, without denial; and promptly, without delay.”’   PLUMER, JR., at 120.   Justice Woodbury also appealed to these concerns, quoting from James Madison’s Federalist No. 44 on this question.   1 NH Reports 215.

64.    Address of the Convention, Journal of the Convention, 1784, in appendix.   NH State Papers 847 (Concord).

65.    TURNER, at 45.

66.    Id. at 47.

67.    See supra note 14.

68.    Journal of the Convention, 1791.

69.    TURNER, at 49.

70.    Id. at 51.

71.    “Part of a letter found open in the street,” from the March 7, 1792, Concord Herald in Osborne’s New Hampshire Spy, March 17, 1792.

72.    Id.

73.    A Freeman (John Samuel Sherburne [?]), “Strictures on ‘some remarks on the proceedings of the late Convention & c.,”’ (NH, 1792), American Bibliography (NY, 1941) vol. 8, no. 24823.

74.    Plumer to Smith, February 17, 1792, reel 2.   See also supra note 58 and accompanying text.

75.    GWYN, at 82-99; WOOD, at 14-16.

76.    GWYN, at 66-81; 100-128; CORWIN, at 64.   This view was also shared by many English Whigs.   See supra note 36.

77.    WOOD, at 391-467; CORWIN, HIGHER LAW; In centering on the English separate powers theory informing Americans, Gwyn neglects the “Natural Law” understanding which constituted one of the most unique aspects of American separate powers doctrine: many Americans believed “Natural Rights” and “Natural Law” limited what government could rightfully do, and separation of powers was instituted to restrain government, and particularly the legislature, within these bounds.   Using separate branches to limit the objects of legislation was a novel innovation, even for Coke’s doctrine, which practically embraced the supremacy of Parliament: for Coke, the legislature might be limited by “Natural Law,” but no human authority could restrain it.   Contemporary English theory centered explicitly on protecting the interests of estates within government; the more moralistic “higher law” tradition on which Americans drew appears to have been neglected in England during the eighteenth century. It was to this conception of “natural” limits on government that Justice Woodbury turned in Merrill.   Woodbury considered his textual analyses “clear” (even if the meanings he drew from the text alone, while not unreasonable, were not the simplest and most straightforward interpretations possible) because he had interpreted them with the framers’ “higher law” goals in mind.   Thus, Woodbury explained that special acts were void, “no more from the express prohibition, than, that, in their nature and effect, they are not within the legitimate exercise of legislative power,” claiming also that “an act which operates on the rights or property of only a few individuals, without their consent, is a violation of the equality of privileges guaranteed to every subject.”   In so arguing, Woodbury referred explicitly to the Roman tradition, quoting from Cicero one of the most important principles of Roman law: “Vetant leges sacrae, vetant duodecem tabulae leges privatis hominibus irrogare, id emin est privilegium,” or “according to the sacred laws, according to the Twelve Tables, laws which penalize particular individuals are forbidden, for that is what a law of personal exception is.”  See CLINTON, at 33 (noting the importance of this principle in Roman law).  Woodbury felt constrained so to argue from first principles even after he seemed to have established textual authority for his position, because these higher law arguments established his interpretation as “the clearest.”  On the importance of “the clearest manner” standard, see infra section IV.   On “higher law” interpretations in early American jurisprudence see generally Hadley Arkes, Beyond the Constitution Ch. 1-4 (Princeton, 1990); NELSON, at 917-960 (Nelson describes judicial appeals to “accepted understandings” of rights.); CLINTON, at 31-43 (Describing the American doctrines of separate powers and judicial review as part of a long lineage of attempts to “encapsulat[e] political power, arbitrary in its nature, within some ‘binding rule of right.”’)

78.    PLUMER, JR., at 116.

79.    “An Act to Restore Elisabeth M’Clary to her Law,” manuscript record, Gilman v. M’Clary, Rockingham County Superior Court, 1791 (Records and Archives, Concord).   Gilman claimed M’Clary owed him for several barrels of rum, and M’Clary claimed she never ordered the liquor.

80.    5 Laws of New Hampshire 508.

81.    “An Act to Restore ...” manuscript record.

82.    PLUMER, JR., at 170-171.

83.    Gilman v. M’Clary, manuscript record.

84.    PLUMER, JR., at 171.

85.    PARKER, at 541-542.

86.    PLUMER, JR., at 59, 171; CLINTON, at 53-54.   The doctrine of judicial review found expression in numerous judicial opinions before this time, as several scholars have noted.   HAINES, at 148-170.   Undoubtedly, Woodbury and his predecessors drew heavily on this tradition, and I do not mean to suggest that the accommodation in Merrill presented an entirely new conception of the judicial function.   Rather, it represented an application of this theory within the particular structure of New Hampshire government; Merrill’s story represents the establishment of effective judicial review, not the formulation of a new concept.

87.    See appendix I.

88.    KONEFSKY & KING, at 64-65; 5 Laws of New Hampshire 524-625.

89.    MASON, at 126-127.

90.    Woodbury does not cite this case in Merrill, and the law itself seems to be absent from compilations of period statutes.

91.    Jenness v. Seavey, manuscript record (Records and Archives, Concord) Inferior Court record.

92.    In granting a new trial, the legislature would excuse the brothers from an agreement to abide by the decision of referees in the case.   Id.

93.    5 Laws of New Hampshire 440.

94.    5 Laws of New Hampshire 404-405.

95.    Jenness v. Seavey, manuscript record (Records and Archives, Concord) Inferior Court record.   In an agreement with the referees, the brothers had removed the case to Superior Court.

96.    Id.   Rockingham Superior Court record (1792).

97.    6 Laws of NH, 120.

98.    KONEFSKY & KING, at 64-65; 6 Laws of NH 141-142.

99.    6 Laws of NH, 412-413.

100. Butterfield v. Morgan (1797), cited in Merrill, 1 NH Reports 216.

101. 6 Laws of NH, 412-413.

102. 1 Cited in Merrill, 1 NH Reports 216.

103.  See supra note 63.

104. The brothers claimed to have evidence their father never incurred the debt sued on, but court records contain the signed affidavits of two witnesses to the pact between the deceased and Seavey.

105. 7 Laws of NH 699-700.

106. MASON, 52.

107. TURNER, at 189.

108. Cited in Merrill, 1 NH Reports, 216.

109. “An act to restore ...” manuscript record.

110. See appendix I.

111. Manuscript record, Journal of the House of Representatives, “Report of the Justices,” June 24, 1819 (Records and Archives, Concord).

112. Id.

113. 1 NH Reports 203.

114. Id.

115. This important factor was highlighted by Professor Thayer:

    [W]e introduced for the first time into the conduct of government through its great departments a judicial sanction, as among these departments,—not full and complete, but partial.   The judges were allowed, indirectly and in a degree, the power to revise the action of other departments and to pronounce it null.   In simple truth, while this is a mere judicial function, it involves, owing to the subject matter with which it deals, taking a part, a secondary part, in the political conduct of government.   If that be so, then the judges must apply methods and principles that befit their task.... They must not step into the shoes of the law-maker, or be unmindful of the hint that is found in the sagacious remark of an English bishop nearly two centuries ago, quoted lately from Mr. Justice Holmes:—’Whoever had an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver ...’ James Bradley Thayer “The Origin and Scope of the American Doctrine of Constitutional Law,” in Ezra Ripley Thayer, ed., Legal Essays 32-33 (Cambridge, 1972) also, see generally 20-33 (hereinafter cited as “THAYER”).

116. MORGAN, at 241, 333.

117. Id. at 7-8.

118. BURT, at 34-102, 155-199.

119. 1 NH Reports; PLUMER, JR., at 172-173.

120. MORGAN, at 29, 330-333.   Morgan notes that Congress has an important role to play in establishing governmental legitimacy because of its representative nature.   The courts have assumed this role almost exclusively with the rise of “judicial monopoly” theory.

121. HAINES, at 148-170.

122. See, e.g., George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (New York: McMillan Publishing Company, 1981) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vols. I-II) (Paul A. Freund, ed.). xiii-xiv, 7 (It will be a “pervading theme” that Chief Justice John Marshall was able to “establish the authority of the Court” and “establish [it] as an arbiter of fundamental issues of governmental power.… A relatively feeble institution during the 1790s, … [the Court] acquired in only a few years time, and largely under the guiding hand of John Marshall, more power than even the framers of the Constitution may have anticipated.”); G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (New York: McMillan Publishing Company, 1988) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vols. III-IV) (Paul A. Freund and Stanley N. Katz, eds.) 964-975 (The decisions of the Marshall Court “furnish … evidence of the impressive discretion of the Justices to function as substantive rule makers. No Court in American history was freer to make up its own rules of law.”).

123. MORGAN, at 45-139.

124. CLINTON, at 18, 116-127.

125. BURT, at 34-102, 155-199.

126. THAYER, at 32.

127. See supra note 77.

128. MORGAN, at 11, 16-42.

129. Id. at 7-8.

130. See supra note 124.

131. BURT, at 34-102.

132. MORGAN, at 26-29.

 

Timothy LawrieAuthor

Attorney Timothy A. Lawrie resides in Charlottesville, Virginia, and works as in-house counsel for a civil engineering firm.  He received his undergraduate degree from Wake Forest University in Winston-Salem, NC.  He attended law school at the University of Virginia, where he also earned an M.A. in American history. This article, written while he was a graduate student at UV and was originally published in the American Journal of Legal History, July, 1995 (39 Am. J. Legal Hist. 310), has been revised slightly for publication in the New Hampshire Bar Journal. It is reprinted with the permission of the author and the Temple University School of Law, publishers of the American Journal of Legal History. In the next issue of the Bar Journal, attorney Eugene Van Loan will follow-up this article with more discussion about the concept of judicial review.

 

 

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