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Legislating the Courts - Judicial Dependence in Early National New Hampshire (Hardcover)
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Legislating the Courts - Judicial Dependence in Early National New Hampshire (Hardcover)
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In the first decades of the nineteeth century, legal reformers in
the United States strove to standardize courtroom procedures and
expand judges' power at the expense of jurors while simultaneously
imposing uniformity upon judicial decision making. Reid's previous
book, Controlling the Law, offered a case study of this process,
focusing on New Hampshire Chief Justice Jeremiah Smith and Governor
William Plumer. Now in Legislating the Courts, Reid returns to the
careers of Smith and Plumer to continue the story of judicial
authority in the early republic. American constitutional historians
and lawyers generally assume that the current doctrine of judicial
supremacy not only has always been the rule of constitutional law
but was the original intent of the framers of both the federal and
state constitutions. This study disproves the validity of that
assumption for state constitutionalism by concentrating on the law
of New Hampshire-representative of the law in other
jurisdictions-between the years 1789 and 1818. Legislating the
Courts does not argue that judicial independence was not the
desired rule among the framers of the constitutions; instead, by
looking at both practice and constitutional theory, this study
shows that the reality for the early republic was both judicial
dependence and legislative supremacy. To illustrate his points,
Reid refers to three government practices that together with other
matters altered judicial salaries-mandated by the constitution to
be "permanent" and "honorable"-and that created a dependent
judicial system. The first practice, "restoring litigants to their
law," gave litigants who had lost a jury trial and had judgments
pronounced against them the option to petition the legislature to
be relieved from the judgment and to be granted a new jury trial.
In the second practice the legislature acted on the premise that it
had the authority to investigate the conduct of judges and require
them to explain why they behaved in certain ways. Finally, in the
third practice, the legislature exercised the authority to remove
judges from their tenure at "good behavior" by "legislating" them
out of office and then appointing a new bench. Despite an attempt
to subordinate the judiciary to the will of the citizenry, as
represented by the state legislature, Reid finds that judges
managed to maintain their autonomy, subject only to the dictates of
the law.
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