Empire of Liberty: A History of the Early Republic, 1789-1815 (73 page)

S
IMILAR STRUGGLES BETWEEN
the Federalists and Jeffersonian Republicans over the role of law and the judiciary in American life were also unfolding in the states. The increasing democratization of American society and politics made more and more leaders turn to the law and judges as restraints on the popular power expressed in the state legislatures. The Federalists had long since become convinced that the courts were essential in staving off “the confiscating avarice of Democracy.”
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But it was too late:“equal rights” was the rallying cry almost everywhere against aristocratic judicial privilege and the mysteries of the common law. Indeed, so threatening and unsettling did the popular anti-aristocratic attacks on lawyers and judges become that even many Republicans eventually felt the need to come to the defense of the common law and an independent judiciary.

As the Federalists rapidly declined in influence during the first decade of the nineteenth century, the dominant Republicans began turning on one another. Jefferson had predicted that the Republicans would divide among themselves into different parties, and “whatever names the parties might bear, the real division would be into moderate and ardent republicanism.”
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The issue that most conspicuously divided the Republicans was the role of the judiciary.

Nearly all the states sought to reform the law and their judiciaries during the decades following the Revolution, and these efforts generated continual controversy. While the Federalists, often speaking for the static property interests of rentier groups, wanted a judiciary as independent as possible from popular control, the Republicans usually pushed for an elected judiciary, codification, if not elimination, of the common law, and legislative dominance over the judges.

By 1800 almost every state had problems with its judiciary, some more than others. As the governor of Pennsylvania complained,“The extension of Commerce and Agriculture, the increase of population, and the
multiplication of Counties” had rendered the state’s court system “no longer adequate to the regular and efficient administration of justice.”
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Consequently, judicial reforms of one sort or another became necessary. In some states like Kentucky and Ohio the radical Republicans, representing those common farmers most resentful of sophisticated legal processes, were able to accomplish much of their program of weakening the common law and of bringing the judiciary under the control of the people. Elsewhere, however, moderate Republicans, generally representing those who had the strongest entrepreneurial and market interests, came to realize the importance of the common law and an independent judiciary to economic development and began resisting the more radical popular demands.

Of all the struggles over the law and judiciary that took place in the states during the first two decades of the nineteenth century, probably the longest and most intense occurred in Pennsylvania, where there were factions within factions. Groups of radicals in Pennsylvania believed that the revolution on behalf of republicanism had not been carried far enough. The most extreme of these factions was led by Dr. Michael Leib, a Philadelphia physician and political activist, and William Duane, the editor of the
Aurora
. Leib, a founder of the German Republican Society who became a member of the state legislature, later a member of Congress, and eventually a U.S. senator, was totally committed to turning the poor and the common laborers of Pennsylvania into political actors. His commitment to the international republican revolution and the most extreme forms of majoritarian democracy was equally strong.

As long as the Federalists were the major enemy, different opposition groups in Pennsylvania, including artisans, entrepreneurs, and laborers of all sorts, had been able to combine under the rubric of the Republican party. But with Jefferson’s victory in 1800 and the decline of the Federalists, the radicalism of Leib and Duane became more conspicuous. The Leib-Duane faction began attacking all social and economic distinctions, even those naturally earned, denouncing the role of gentlemen in politics, and promoting a “happy mediocrity of condition” in all things, including property.
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These radicals, who came to be called the “Malcontents” or the “Jacobins,” objected to the entire complex structure of America’s federal and state governments, its separation of powers, and, in particular, its independent judiciaries. Leib and Duane and their
followers charged that the courts were not susceptible to popular control and that judges used the mysteries of the common law to enhance the privileges of the few at the expense of the many. By 1805 Leib’s extremism led his more conservative Republican critics to compare him to Robespierre.
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To move against some Federalist members of the judiciary, Leib and Duane combined with other radicals in the state legislature led by Nathaniel Boileau, a graduate of Princeton and a descendant of Huguenot immigrants, and Simon Snyder, a self-made man who in 1802 became speaker of the house in the state legislature and in 1808 governor of the state. Their radical cause was reinforced by an Irish-born immigrant from England, John Binns, who, like others, had fled the British crackdown on advocates of French revolutionary republicanism. Binns established the Northumberland
Republican Argus
, which, along with Duane’s
Aurora
, became an important mouthpiece for the reformers’ campaign. These factions condemned the common law for its “abstruse and technical phrases,” and for being “ill suited to the plain and simple nature of a Republican form of government,” and urged the state house of representatives to order the judges to simplify it.
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Although this measure failed, the radical Republicans in the state legislature, like their colleagues in the federal Congress, turned to the process of impeachment as a means of removing obnoxiously partisan Federalist judges. The first victim was Alexander Addison, a hard-line Federalist and president of one of Pennsylvania’s district courts of common pleas. Addison had helped suppress the Whiskey Rebellion and had furiously condemned the principles of the Virginia and Kentucky resolutions. In January 1803 the Pennsylvania house of represent atives impeached him, with the radical Republicans arguing that his opposition to the will of the people, and not any criminal act, was sufficient grounds for impeachment. After a two-day trial, with Addison conducting his own defense in what one newspaper called “the most insolent, arrogant and overbearing” manner, the senate convicted him on a party vote, removed him from office, and forbade him from ever again holding judicial office in Pennsylvania.
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Addison’s ouster scarcely satisfied the radical Republicans, and in 1805 they pressured the assembly to impeach three additional Federalists
who were members of the state supreme court. By now, however, many other Republicans believed that the assault on the judiciary was getting out of hand. With the Republicans breaking apart into radical and moderate wings, the state senate was unable to muster the necessary two-thirds vote for the conviction of the three Federalist judges. The moderates argued that the judges were “the bulwarks of a limited constitution, against legislative encroachments.” Their power did not mean that they had any superiority over the legislature.“It implies nothing more than the people are superior to the legislature, and that the judiciary, as a coordinate branch of the government, charged with execution of certain powers, is bound to regard the will of the people, as expressed in the constitution, in preference to the will of the legislative body.” It was the same argument Hamilton had made nearly twenty years earlier in
Federalist
No. 78.
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By now the struggle had widened into a full-scale debate over the future of the common law and the character of judges in Pennsylvania. Republican governor Thomas McKean, who had been chief justice of the state supreme court for two decades, was appalled at the ignorance and narrow-mindedness of the populists in the assembly. The radicals, he said, were urging the barring of lawyers from the courts, the eliminating of the common law (or “lawyers law,” as they labeled it), and the substituting of untrained arbitrators for educated judges. But even more alarming, they were also contending that “all men of talents, lawyers, [and] rich men” were unqualified to sit in the legislature. These “clodhoppers,” as McKean called them, could not comprehend that the law was “a science of great difficulty and endless complications” and required “a lifetime to understand it.”
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With the radicals seemingly threatening “the destruction of our state Government,” McKean was able to gather to his side many moderate Republicans, or “Quids,” as Duane, the irascible editor of the
Aurora
, called them. (“Quids” after
tertium quid
: a “third something,” neither Federalists nor, in Duane’s opinion, true Republicans.) Perhaps McKean’s principal supporter and most loyal ally was Alexander J. Dallas, U.S. district attorney who had been secretary of the Commonwealth of Pennsylvania in the 1790 s. When the Republican party caucus dominated by the radicals denied McKean the gubernatorial nomination in 1805, McKean, Dallas, and other Quids combined with the Federalists to create
a coalition ticket. The nature of the judiciary and the common law was the principal issue of the campaign.
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Dallas helped compose an address in 1805 that summarized the fears of the moderate Republicans that too much democracy was endangering Pennsylvania society. This address, widely distributed in newspapers and pamphlets, was one of the most comprehensive defenses of the judiciary and the common law made in these years. It contended that without the protection of the courts and the mysterious intricacies of the common law,“rights would remain forever without remedies and wrongs without redress.” The people of Pennsylvania, the address declared, could no longer count on their popularly elected legislature to solve many of the problems of their lives.“For the varying exigencies of social life, for the complicated interests of an enterprising nation, the positive acts of the legislature can provide little fundamental protection alone.”
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These views represented a severe indictment of democracy.

McKean narrowly won the bitterly contested election for the governorship. Following a failed attempt to impeach McKean, the coalition between the Leib-Duane faction and the Snyderites began to break apart, especially as Snyder and his followers glimpsed the possibility of actually attaining the governorship if they moderated their message. While Leib, who was back in the state legislature after serving in the U.S. Congress, demanded that the state remove all English cases from state law and codify the entire common law, the Snyderites argued for much more piecemeal reform, with Nathaniel Boileau contending “it would not be practicable to reduce the common law at once into a text.”

This conflict between these two popular reform factions broke new political ground in America. For the first time, no “aristocracy” was involved; both of the two contesting groups called themselves “democrats,” and both spoke in the name of the common man.
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But the issue of the role of the courts versus the role of the legislature continued to plague Pennsylvania.“The acts of the legislature form but a small part of that code from which the citizen is to learn his duties, or the magistrate his power and rule of action,” declared the presiding judge Moses Levy in the Pennsylvania cordwainers’ trial of 1806 . These legislative acts were simply the “temporary emanations of a body, the component members of which are subject to perpetual change,” and they
applied “principally to the political exigencies of the day.” Only the unwritten common law could supply what was legally needed. Only “that invaluable code” composed of ancient precedents and customs could ascertain and define,“with a critical precision, and with a consistency that no fluctuating political body could or can attain, not only the civil rights of property, but the nature of all crimes from treason to trespass.” The conclusion was clear. Only the common law whose “rules are the result of the wisdom of ages” could adapt to the novel and shifting circumstances of modernity and regulate “with a sound discretion most of our concerns in civil and social life.”
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Yet the Pennsylvania radicals continued to assault judges for their abuse of discretionary authority.“Judges,” the popular radicals contended in 1807,“very often discover that the law, as written, may be made to mean something which the legislature never thought of. The greatest part of their decisions are in fact, and in effect, making new laws.”
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Other states also experienced bitter clashes over the common law and the independence of the judiciary. Since opponents of the common law made much of its British origins, its defenders were hard put to find for the common law in America a basis other than ancient English precedents. Confronted with the argument that only the popularly elected legislature ought to make law, apologists for the common law contended that it also had popular will behind it. Just as statutes were binding because they were enacted with the consent of the legislature,“so these unwritten customs and regulations . . .,” declared Jesse Root of Connecticut in 1798,“have the sanction of universal consent and adoption in practice.”
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But the radical reformers would not agree with what to them seemed sophistry. Their every attempt to codify and eliminate the common law from the courts thus split the Republicans. Many moderate Republicans who had hitherto condemned the courts as aristocratic bastions of Federalist privilege came to appreciate them and their ability to secure all sorts of commercial property from the ravages of radical populists. Thus in state after state Republican parties began breaking apart over support of the judiciary and the protection of property, especially the new sorts of dynamic commercial property owned by rising Republican entrepreneurs
and businessmen. What was important, however, was that the moderate Republicans were able to resist the radical positions without repudiating either the people or democratic politics.