New Hampshire Bar Journal
2011 Summer, Pg. 40.
Judicial Practice, eighteenth Century
New Hampshire Bar JournalVolume 52, No. 2Summer 2011Judicial Practice, eighteenth CenturyBy Honorable Elwin L. PageThe following is a reprint of an article published in Vol. 4, #4 of the New Hampshire Bar Journal, in July 1962. A profile of the late Hon. Elwin L. Page appears on page 44.
Some practices in the courts of New Hampshire in the eighteenth century were so different from those of this day that it may be of interest to point out a few of them.
It is probable that judges, when in court, were always robed. But as to counsel the evidence is so slight that it is difficult to state a general rule. When the Superior Court was trying a criminal case in 1766, the New-Hampshire Gazette reported that Wyseman Clagett, King's Attorney, and William Parker, for the respondent, were "habited in black robes, the proper dress of the bar."(fn1) The stress upon propriety may suggest that such robes were not always worn, as they should be. When the first term of the Superior Court for Rockingham County was held in Portsmouth, there was a procession from the State House to the Court House. The judges were in robes, the attorneys in "Gowns, bands, andc.(fn2)
Theophilus Parsons, of Massachusetts, had a large practice in New Hampshire. In 1778, at least in Massachusetts, he wore in court a black woolen gown and a bag-wig. Soon after that he ceased to use them.(fn3) Probably New Hampshire lawyers cast them aside at about the same time, and the judges ceased to use theirs. As reminders of hated British customs, they must have seemed no longer to be appropriate.
Neither judges nor counsel here resumed them for over a century until the reorganization of the courts in I90I. A few people can recall that robes were proposed for the judges, and there was strong opposition. But the judges resumed black robes, while counsel wore nothing distinctive.
Though in Massachusetts the sheriff has a mace of sorts, in New Hampshire none has been used for time out of mind, unless the sheriff's gavel is a stunted mace.
charging the jurt
In both the Inferior Court of Common Pleas and the Superior Court of the eighteenth century, three judges constituted a quorum. Each of the judges customarily instructed the jury individually and seriatim. Each stood when he did so. It must have happened sometimes that the judges were not unanimous as to the law. In such a situation the jury might have taken any theory of the law, whether stated by a judge or conceived by a juror, in the latter case the jurors being in effect judges of the law. That difficulty was not avoided until some years of the nineteenth century had passed.
But the practice of the judges standing while addressing the jury barely outlasted the century. When Chief Justice Jeremiah Smith came to the Superior Court in 1802, there was a case that was tried for the second time. Smith's two associates had sat at the first trial and given conflicting charges. They now declared that they would waive charging again and leave the business solely to Smith. When the new Chief Justice rose to give the charge, he was so nervous that the paper he held fluttered; he could not read his own clear hand-writing. So he sat and placed the manuscript on the bench. That ended the formality of the judge standing when addressing the jury except when, now and then, some judge presided whose confidence was unshaken.(fn4)
"watering the jury"
According to Belknap, there were occasions when the justices heard cases "outside the court." This was called "watering the jury." It caused complaint, the objectors believing that the court bypassed trial by jury when the judges were partial to important litigants.(fn5)
If there were any such ill dealings, no particular evidence has been found. Longtime local practice, dating back to our judicial beginnings, favored arbitration; and in some cases to the end of the eighteenth century cases were referred to single justices of the Superior...