Hosmer to Peters to Daggett
| Publication year | 2021 |
| Pages | 275 |
73 CBJ 275. HOSMER TO PETERS TO DAGGETT
Three years ago I wrote about the doings of the Connecticut courts as revealed in the earliest volumes of the official reports, Kirby, I and Il Root, I to V Day and 1 and 2 Connecticut. (fn1) That article covered the period from 1785 to 1818, when the first modern constitution in Connecticut was adopted. This article covers the period from 1819 to 1834, when the domination of the Connecticut Supreme Court by Federalist judges came to a close.
Although the Supreme Court was created in 1784, most of the opinions reported in Kirby and Root (1785 to 1798) were decisions of the Superior Court. (fn2) Starting in 1802 with Day's Reports, the official reports thereafter contained almost exclusively Supreme Court opinions until 1935, when the Connecticut Supplement series was created for trial court opinions.
Before 1808, the Supreme Court - "The Supreme Court of Errors" until 1965 - consisted of the Governor, Lieutenant Governor and the 12-member Council (Senate). Its decisions in I and II Day are mostly unsigned, with little or no reasoning, and rarely contain any views of the individual judges. When the Supreme Court was reconstituted in 1808 to transfer its power to all nine of the Superior Courtjudges, the same situation concerning unsigned decisions continued (see III Day) until 1810, when a statute required each of the judges to give his individual reasoning. (fn3)
It is only starting with signed seriatim opinions in 1810 that we have any clear look at the personalities on the Supreme Court. Volumes IV and V Day and I and 2 Connecticut contain the opinions of two of the greatest judges in Connecticut history, Tapping Reeve and Zephaniah Swift. I have already discussed their opinions elsewhere. (fn4) These four volumes are especially important today in light of the renewed emphasis on the Connecticut Constitution; they reflect judicial views extant just before the adoption of the 1818 Constitution.
Two interrelated purposes of the 1818 Convention were to provide for a separation of powers and judicial independence. (fn5) The 1818 Convention created a separation of powers where previously there was none, and it created unlimited tenure to age 70 for the Supreme and Superior Courtjudges where previously they were elected yearly by the General Assembly.
The 1818 Convention supposedly marked the triumph of the Republicans against the established order of a conservative Federalist society.. In many ways it did: the Congregational Church was disestablished, suffrage was expanded, and the size of the combined Supreme and Superior Court was reduced from nine to five, whereupon most of the Federalist justices (including Chief justice Swift) lost their office. But the Federalists at the Convention who staked the future of their party on unlimited tenure for judges were immediately vindicated. In spite of the loss of Swift, the Supreme Court became the last bastion of Federalism in Connecticut through the 1820s and into the 1830s.
I find it somewhat odd that lawyers and judges today pay a great deal of constitutional attention to what Reeve and Swift thoughtjust before 1818, but relatively little attention to what otherjudges thoughtjust after 1818. After all, Swift lost his job because of 1818; the judges who sat in the 1820s either obtained or retained theirjobs because of 1818, and two of them were delegates to the Convention. Much of the constitutional jurisprudence of the 1820s was consigned to the dustbin of Connecticut history in the 1890s by judges who thought they knew more about what the Framers intended than did the judges of the 1820s. (fn6)
Until 1818 all nine of the judges were Federalists and Congregationalists. In the spring of 1818, when the Republicans (also called Tolerationists and later Democrats) took over the Legislature and Governorship and set up the Constitutional Convention for that summer, two of the lesser Federalist lights on the court were replaced by two Republicans, John T. Peters (an Episcopalian) and Asa Chapman. When the Legislature met in the spring of 1819 under the new Constitution and reduced the size of the Supreme Court to five, Peters and Chapman were reappointed along with two of the remaining Federalist judges, Stephen Hosmer (a judge since 1815) (fn7) and Jeremiah Brainard (a judge since 1806). William Bristol, a delegate to the Convention, was the one new appointment.
Even though Hosmer was in the Federalist minority, he was appointed Chief justice, a position he held until 1833. He was apparently appointed because of the quality of his work. (fn8) Like John Marshall in Washington, Hosmer had a first-rate legal mind and basically ran the court his way, at least until 1826, while the other justices (including Republicans Chapman and Bristol) meekly went along with his views. Except for one person: John T. Peters.
Peters was a Republican firebrand who thought the Constitution made dramatic changes in the way government was to be run. No one else on the Supreme Court agreed with him (he appears to have been incapable of making judicial alliances), so he could do nothing but rail away at how the other justices were selling out the principles of 1818 by bowing to Hosmer's views. Although Hosmer won out in the 1820s, Peters often was ultimately vindicated. He was just a century or so ahead of his time.
In 1826 James Lamnan, one of the most important Republican delegates to the Convention, and David Daggett, a prominent Federalist, were appointed in place of Chapman, who had died, and Bristol, who had became a federal judge. (fn9) Daggett's was a remarkable appointment. He had been partisan in his activities for 35 years. But he was also the leading lawyer in the state, as one can infer by reading the reports on his numerous scholarly oral arguments to the Supreme Court, especially in Day's Reports. (fn10) His appointment coincided with the Era of Good Feelings in both state and national politics, when partisanship was at a historic low. (fn11) So the 1826 Republican Legislature (Governors did not choose judges until late in the 1800s) chose competence over politics even though this appointment made the Federalists a majority on the Court. What the Republicans got was a formidable ally for Hosmer, who thereafter assigned many of the most important appeals to Daggett (unlike Chief.justice Marshall). (fn12) What they also got (because Lanman, like Chapman and Bristol before him, went along with the majority) (fn13) was the continuedjudicial isolation of Peters. The period from 1818 to 1826 is fairly called the Hosmer Court; but the period from 1826 to 1834 is fairly called the Daggett Court even though he was Chief justice only for the last two years. (fn14)
Hosmer retired at age 70 in early 1833, Peters died in mid-1834, and Daggett retired at age 70 in late 1834. The Hosmer or Daggett versus Peters arguments of the 1820s and early 1830s make these volumes of the Connecticut Reports (3 to 10 Conn.) fascinating reading; they are also important reading when construing the Constitution.
We make much of the Bill of Rights today. Although there had been considerable political debate on the subject before 1818, at the 1818 Convention it was not a major issue. In fact the Convention apparently lifted its version almost verbatim from the Mississippi Bill of Rights of 1817. (fn15) The 1818 Convention itself produced the first case of state constitutional significance, Stow v. Converse, (fn16) which ironically concerned the Bill of Rights. Stow was one of the luminaries of the Convention and Converse was the editor of one of the newspapers reporting on the Convention. Converse reported that Stow had set up an infidel club. Stow, represented by David Daggett, sued for libel and, truth being a defense to a libel action in Connecticut since 1804 (we were way ahead of the times), Converse proposed to prove that Stow was an infidel because he had opposed a particular religious doctrine. Hosmer, in an opinion in which even Peters joined, rebuffed Converse:
I deeply regret, that in this age of religious freedom, it should have ever occurred to any one, that an expression of belief, however erroneous, on a disputed point of doctrine, in the respectable churches of this state, was an attempt to subvert religion; and what is more extraordinary, that a court of law should be called on to prescribe bounds to the ological discussion. (fn17)
A judgment for the plaintiff was eventually affirmed, and no mention whatever was made of freedom of speech or of the press by either the court or the lawyers. (fn18) The inference is that there was a common understanding that these rights did not affect defamation actions, probably because in civil actions they prevented only prior restraints on publication. (fn19)
Freedom of religion itself does not fare so well seven years later in Atwood v. Welton. (fn20) In 1809, the Supreme Court had held in Curtiss v. Strong (fn21) that a witness who denies the obligations of an oath is ineligible to testify under oath. This matter was revisited in Atwood, where the witness believed his happiness secure at death regardless of his conduct in life. Curtiss was extended to this case:
But the decision in Connecticut, Curtiss v. Strong, 4 Day 51 must be the guide to this Court. That case was elaborately discussed; - it was decided by the unanimous opinion of the nine judges of the Supreme Court of Errors within the last twenty years; and the decision has been acquiesced in. No murmurs have been heard respecting it. The reasons should be cogent to compel a departure from such a decision.
It has been said, however, that this decision in excluding the witness, is a violation of the constitution of the state. I presume this argument rests on the 3rd and 4th sections of the declaration...
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