Page:The Granite Monthly Volume 5.djvu/178

 154 THE GRANITE MONTHLY.

feeling was so strong that when oar constitution was adopted, a proposition that the legislature might create a court of chancery, with the provision, in substance, that the jury might try all questions of fact, was defeated by the people.

It probably never occured to anybody when they had defeated a proposition authorizing the legislature to create a court of chancery providing all questions of fact could be tried by the jury, that they had granted to the legislature the power to establish such a court which could deprive anybody of the right of trial by jury.

So far as the court of chancery in this State is concerned, it is obvious that, if the sense of the people was of the slightest earthly account, its existence is without a shadow or tittle of constitutional authority.

Prior to the adoption of any constitution, the people had triumphed. As a rule, all questions of law and fact, in the way I have stated, were tried by jury.

The courts before the union with Massachusetts were all held in the "four towns," as they were called, close to the sea-coast, and at a later day and until 1772, at Portsmouth.

All the judges — three and generally four — unless as sometimes happened they looked at the wrong almanac — attended and presided at the trial. When there were four of the judges, as not unfrequently happened, sometimes all charged the jury and oftentimes ranged themselves on opposite sides and the result not unfrequently was a "hung jury."

The result was that in five years there were fifty disagreements, and not un- frequently causes were tried with disagreements five or six times, but as a rule the stout-headed and stout-willed jurors rode rough-shod over these quarrel- ing moderators, and rendered such a verdict as they thought on the whole was best.

There were no law terms, as we understand them, — such a thing was never heard of in those days. All questions of law, so far as they could be decided at all, were decided at the trial terms, and in general, on the spur of the moment.

We had no law court as such, until the passage of Judge Parker's act in 1832, but the practice of reserving cases to be considered in vacation originated entirely v/ith Jere. Smith after he became chief justice in 1802.

He first introduced the single judge system at trial term. This was overturned and again restored when he became chief justice a second time. It was again overturned when the superior court was created in 18 16, and for years all the judges in that court sat together at the trial term ; and their opinions which go to make up the earlier volumes of New Hampshire Reports, though generally considered in vacation, were read or announced at the trial terms.

Long prior to the accession of Judge Smith, the court had been invested with the power to make rules regulating practice, but there is no evidence that they ever made any.

There were strong men upon the bench at that time, but these men were not lawyers. No one but a cheap lawyer could afford to take such a place.

There were but eight lawyers in the state as late as 1768, and they increased slowly after that ; but the majority of them had much more learning and ability than the courts before which they practiced. The result was that every case, like every tub, stood upon its own bottom, and every case was decided upon what the jury regarded as its own merits. The result was, although we had statutes, to use the language of Chancellor Kent, " we had no law of our own, and nobody knew what it was."

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