The Jeffersonian Crisis

William Branch Giles, a radical Jeffersonian Republican congressman from Virginia, warned in 1801 that "what concerns us most is the situation with the Judiciary as now organized." ³⁹ With Jefferson in the White House, a Republican majority in Congress, and Republican control of several state legislatures, the radicals intended to humble federal and state judges while working a wholesale plan of legal reform. Radicals

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distrusted lawyers and believed that local democracy in an agrarian society based on "common sense and common honesty between man and men," not the technicalities of the common law, offered the surest road to justice. ⁴⁰

Moderate Jeffersonian Republicans, like President Jefferson, stood poised between the extremes of Federalism and radical Jeffersonianism. Like the radicals, the moderates were troubled by the behavior of the federal judiciary, but like the Federalists they saw the national courts as a vital instrument for the maintenance of the republican experiment. They wanted, in short, to restrict the federal Judiciary, and even to teach sitting Federalist judges a lesson in republican accountability, but they had no desire to disable the federal court system. Jefferson also had a "darker side," and he resorted to the federal courts to coerce political opponents, especially after 1807 when he imposed an embargo on American commerce with the Continent, driving Federalist merchants to criminal acts. ⁴¹

Moderate Triumph in the States

This Jeffersonian crisis over the judiciary also extended into the states where divisions existed between radicals and moderates. The former envisioned a judicial system that would be under the direct control of the people, that abolished appellate courts, and that relied on readily accessible trial courts uncluttered by common law pleading. They had a particular animus toward the common law. Radicals regularly cited Benjamin Austin, an artisan from Boston, whose pamphlet, Observations on the Pernicious Practice of the Law by Honestus ( 1786), condemned the common law as too technical and urged that, "for the welfare and security of the Commonwealth" lawyers "should be ANNIHILATED." ⁴² The radicals wanted to replace the common law, which they often described as a " hodge-podge of mystery," with a simple code drawn up by the legislature, the people's branch of government. ⁴³ Deeply democratic and inherently localistic, they proposed to wed the law to the ebb and flow of daily communal life.

Federalists in the states took a contrary position. They not only supported the common law as a historic protection for "liberty" and property, but they believed that only persons trained in it could successfully administer the rule of law. Where the radical Jeffersonians in states like Pennsylvania, Kentucky, and Virginia proclaimed that appellate courts were a distant and unaccountable check on popular will, Federalists argued that such courts prevented juries from disturbing the purity and reason of law. Moreover, Federalists expected that a multilayered state court system would ensure that property rights would never be sacrificed to legislative majorities and juries. That juries in the federal treason cases had proved remarkably pliable in sustaining the government seems to have been either lost on or ignored by the Federalists. They were, in any case, more prepared to trust in the judiciary than in the people.

Moderates agreed with radicals on the need for judicial and legal reform, but they also agreed with the Federalists that courts had to check popular will. From the time of the Revolution through 1815, every state except two modified its constitutions in ways that restricted the legislative branch and enhanced judicial authority and legal organization. The two states that did not engage in constitutional reform modified their judiciaries through statutes. The moderates prevailed almost everywhere. Only in Kentucky did the radicals have a significant impact; only in Massachusetts did the Federalists hold sway.

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Most states adopted expanded and inexpensive trial courts. Each trial court possessed an original criminal and civil jurisdiction, and each was staffed by three or more judges. Most states expected that these judges would have some legal training, and in most instances these new courts eclipsed in importance the old justice-of-the-peace courts, long a favorite of radicals. New intermediate courts of appeal appeared that sat in specific locations throughout the year, thus bringing appellate justice closer to all state residents. A high appellate tribunal capped the court structure. Most state appellate judges held office during "good behavior," and the principle of judicial review survived, although these judges did not begin to exercise significantly this power until the mid-nineteenth century. The common law also survived, although distrust of it remained pervasive, and throughout the rest of the century legal reformers repeated demands for codification of state law.

Taken together, these state reforms meant that the administration of justice was somewhat decentralized yet organized in a hierarchical form. The new structure promised a measure of certainty, uniformity, and predictability in legal decision making, qualities that benefited the budding capitalist economies of most states. The moderate triumph, moreover, was every bit as sweeping at the national level.

Date: 2015-01-29; view: 925