THE HIGHEST COURTS OF LAW IN NEW HAMPSHIRE,—
COLONIAL, PROVINCIAL, AND STATE.
By Charles R. Corning.
The judiciary of New Hampshire has long enjoyed a high reputation among the lawyers of the land. Its judges have been men of learning, and occasionally men of genius; and their decisions have been recognized and cited in the highest tribunals of the United States and of Great Britain. Considered historically, the Supreme Court of the Granite State does not offer much of value or of interest; it has undergone certain vicissitudes incident to the exigencies and the spirit of the times, and it has appeared under various names, according to the temper of partisanship. Like nearly all judicial systems, our highest court has passed through a sort of evolution, which has affected the character of the bench less than it has affected its methods and procedure. In the ceaseless turmoil of politics the bench did not escape unscathed, and change after change was made in its membership; but in no case did these shocks bring scandal in their train. On the contrary, they merely put spectacles of a different political color over the eyes of the judges; but beyond this even the ultraradical politicians of New Hampshire did not go. It is now more than a decade since the present court passed through a wager of political battle, and its permanency now seems to be assured; for by an unwritten law the dominant party is entitled to a majority of the judges, — four out of seven, — and any vacancy is at once filled by the appointment of a lawyer entertaining the same political belief as the deceased or retiring judge. How long the present form of our judicial system will endure is a question independent of partisanship, and its settlement will be in accord with the best and promptest despatch of justice. In States where politics have been one-sided, judicial affairs have been rarely disturbed; but in the close and hard-fought commonwealths, the influence of political prejudices prevails to a greater or less degree, and it would scarcely be American human nature if it were not so.
Unfortunate as such influence may be, and calculated as it certainly is to bring suspicion on the purest department of government, yet it can be safely affirmed that the ermine of our courts has never been soiled by dirty hands nor infected by the breath of scandal. That the judges should be of the same way of thinking as the majority of voters was as proper in the old times as that the town minister should preach the belief of his parish. The hardheaded fathers who had driven out the British and expatriated the Tories were not likely to sit tamely at the bar of Common Pleas, and hear the law given out by political here tics, — not at all; and the overturning of courts was to them a political duty as imperative as was the seizure of Castle William and Mary, or the imprisonment of Col. John Fenton.
In the distant colonial days the process of justice was exceedingly simple; for the judges decided questions according to their notions of abstract right and wrong, caring little for precedent and less for consistency. Back farther than this, the law necessary to good government was administered by the agents of the trading-companies, and it was not till about the year 1641 that regular courts are mentioned in the books. In 1680 either increased litigation, or the importance of creating a set of office-holders, had the result of establishing a superior and an inferior court, with stated terms and places of meeting. A few years after this the judiciary system was remodelled by the
