2006 Winter, 34. INTERPRETATION AND AUTHORITY Separation of Powers and the Judiciary's Battle for Independance in NH, 1786-1818.

AuthorBar Journal Author - Attorney Timothy A. Lawrie

New Hampshire Bar Journal


2006 Winter, 34.

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

New Hampshire Bar Journal Volume 46, No. 4, Pg. 34Winter 2006INTERPRETATION AND AUTHORITY Separation of Powers and the Judiciary's Battle for Independance in NH, 1786-1818Bar Journal Author - Attorney Timothy A. LawrieIn September of 1818, the youthful Justice Levi Woodbury boldly claimed for New Hampshire's Superior Court of Judicature the exclusive power of applying law in particular cases, and with it, the power of judicial review. Speaking for a unanimous court in the case of Merrill v. Sherburne,(fn1) Woodbury declared that legislation granting new trials in particular cases - known as "restoration to law" - was an unconstitutional usurpation of judicial authority.(fn2)

Not only did these personal acts infringe on judicial authority to "decide private disputes 'between or concerning persons,"'(fn3) their retrospective nature offended explicit provisions of New Hampshire's Bill of Rights.(fn4) 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.(fn5) 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.(fn6)

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.(fn7) 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.(fn8)

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,(fn9) 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.(fn10) This account challenges some contemporary analyses(fn11) 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.(fn12) At the close of the Revolution, however, it was the most common form of legislation.(fn13) 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.(fn14) 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.(fn15) Judges instructed juries, but their instructions were basic, and they deferred to the jury's judgment even in matters of law.(fn16)

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.'(fn17)

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."(fn18) 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."(fn19)

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.(fn20)

Judges, without the guidance of general statutes, were reluctant to overrule jury decisions and grant new trials.(fn21) 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.(fn22) Courts had also been granted some equitable authority before the Revolution,(fn23) 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.(fn24)

This procedure was not novel, but based on well-established precedent. Since its earliest days, Parliament had proceeded by personal legislation in private cases.(fn25) 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.(fn26) 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.(fn27) 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.(fn28)

Influenced by memories of the legislature's prominent...

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