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The Midnight Judges

Entering the courtroom in Portsmouth for the first time in 1801, the three judges must have been acutely aware of the precariousness of their position. Being called the "midnight judges" did little to add to the aura of respectability surrounding their judicial robes. The three judges, John Lowell, Benjamin Bourne, and Jeremiah Smith, were President Adams' appointees for the Circuit Court of the United States for the First Circuit (which included New Hampshire). The entire nation questioned whether these men deserved to hold their positions. Many thought the judges were merely the last vestiges of a defunct Federalist administration. The Clerk of the Court was Jon Steele, who was also Clerk for the District Court. On their first day, these midnight judges, unlike the judges of all other courts, had no crier. The three judges were faced with the indignity of bellowing the names of the parties from the bench if they didn't find a crier for themselves. The judges solicited Simeon Ladd to perform the task. Ladd was later officially appointed Court Crier.

The judges sat for two days, starting on April 23, 1801, and finishing on April 25. During those two days they allowed continuances in seven cases. The large number of continuances may have been due to the tenuousness of their position. The judicial revisions enacted by Adams did not have adequate support in the new administration. Judges Lowell, Bourne and Smith probably realized they would not hold their positions for long. One case was voluntarily dismissed by mutual agreement and eight judgments were entered; seven of them for debt cases. Each debt case was found for the United States of America, the plaintiff. John Samuel Sherburne asked leave to defend the only decided non-debt case (a testator's dispute) and agreed that judgment be rendered in favor of the plaintiff.

The most noteworthy ruling that occurred during the 1801 session of the court of the First Circuit is the following.

It having been represented to this Court that the District Judge of this District is unable to perform the duties of his office, and satisfactory evidence of the inability of said District Judge being shown to the Circuit Court it is thereupon directed by the Court, in pursuance of the powers vested in them by the 25th section of the Act of Congress entitled an act to provide for the more convenient organization of the Courts of the United States, that Jeremiah Smith esquire one of the judges of this Court perform the duties of the said District Judge during the period the inability of the said District Judge shall continue.

This ruling temporarily replaced John Pickering as an acting district judge, placing a circuit judge upon the district court's bench, the first such action by a judicial court.

In the second session of the circuit court with the midnight judges, business was much the same as in the first session. There was at least one jury trial for debt in which the jury found for the plaintiff. There was also an insurance case involving a ship. The court's first case, Samuel Holland vs. William Greenough, was dismissed, "the parties failing to appear."

The third and last session of the court with the midnight judges begins and ends on the same page of the Final Judgement book (court records), surrounded by a black ink border. It records how court opened again in Portsmouth on April 23, 1802 and adjourned the following day. The three judges maintained a perfect attendance record despite the adverse political climate. The next entry in the Final Judgment book begins with Justice Cushing of the Supreme Court sitting on the bench.

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A Case from Justice Story and Justice Sherburne

There are many cases for the period in and around the War of 1812 that concern the embargo legislation created by Congress to prevent the flow of trade to England. Smuggling was widespread, and the contraband consisted of rum, sugar, various dry goods, even nails. The following is from a typical case regarding violations of embargo legislations. The trial was heard by Justice Joseph Story and District Judge John Samuel Sherburne sitting at Exeter on November 2, 1809.

The United States Plats vs. John Mann upon an Information in the following words viz -- United States of America. -- District of New Hampshire Circuit Court

John Mann of Oxford in said District Gentleman after the passing of the Act of the Congress of the said United States entitled an Act laying an Embargo on all Ships and Vessels in the Ports and Harbours of the United States to wit, on the Sixteenth day of February now last past at Oxford aforesaid, did with force of arms, put place and load into and upon certain carriages or vehicles without wheels viz certain Sleighs, the following goods and merchandize viz . . ., without the said United States and the Territories thereof and from said Oxford, and from said District and from said United States and the Territories of the same United States to a foreign place Country or dominion to wit to the Provence of Lower Canada within the Colonies or Dominions of George the third King of the United Kingdom of Great Britain and Ireland, with Intent to evade the said Act entitled an Act laying an Embargo. . . .Whereupon the said Attorney of the said United States for the District aforesaid, for the said United States, prayeth the consideration of the Court here in the premises, and that due process of Law may be awarded against him the said John Mann in their behalf to make him answer to the said United States touching and concerning the premises aforesaid.--

Dan Humphrey Attorney of the United States for the District of New Hampshire.

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Proceedings from the October Term of 1858

The circuit court was empowered to hear cases of admiralty and maritime jurisdiction and to hear appeals from the district court. The following case from the October term of 1858, heard by Judge Harvey, is a good example of both.

it is considered and decreed by the court that the said Brig, her tackle, apparel, and furniture, and the said Simon Pendar claimant, thereof be condemned in damages in the sum of fifty four dollars, interest thereon from the day of the filing of said libel, being fifty six dollars and seventy five cents in the whole, and the costs of this suit taxed at ninety three dollars forty one cents, and that execution issue therefor.

From which decree the said Pendar claims an appeal at the Circuit Court of the United States next to be holden at Exeter within and for said District on the eighth day of October, A.D. 1857.

This cause was entered in this Circuit Court at the October term A.D. 1857 and cont'd from term to term till this present term, when the said Simon Pendar being three times solemnly called comes not but fails to prosecute his appeal. Whereupon it is considered by this Court that the decree of the District Court be affirmed, and that the said Brig called the Good Hope, her tackle, apparel, and furniture, and the said Simon Pendar claimant thereof be condemned in damages in accordance with the decree of said District Court in the sum of fifty six dollars and seventy five cents with interest thereon from the date of the decree of said District Court to this time, being in all the sum of sixty one dollars and thirty nine cents, and costs of said District Court taxed at ninety three dollars and forty one cents, and of this Court taxed at forty two dollars and sixty cents, being one hundred and thirty six dollars and one cent in all, and that execution issue therefor.

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A Case of Justice Nathan Clifford and Judge Harvey

[The] Grand Jurors of the United States of America for the District aforesaid upon their oaths present that Thomas Nelson of Portsmouth aforesaid in the District aforesaid seaman, called Thomas Nelson... and Thomas Savage . . . and Samuel Sleeper...and John McCafferty . . . heretofore, to wit, on the eighth day of August in the year of our Lord one thousand eight hundred and sixty with force of arms, on the high seas, out of the jurisdiction of any particular state of the United States of America, on waters within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this court, they the said Thomas Nelson and Thomas Savage and Samuel Sleeper, and John McCafferty then and there being of the crew and ships company of a certain vessel being a ship called the Erie owned wholly or in part by a citizen or citizens of the United States of America aforesaid, whose name or names is and are to the said jurors unknown, did piratically and feloniously forcibly confine and detain certain negroes to wit, nine hundred negroes whose names to the said jurors are also unknown in and on board of the said vessel being a ship called the Erie as aforesaid with the intent of them the said Thomas Nelson and Thomas Savage and Samuel Sleeper and John McCafferty to make slaves of the aforesaid certain negroes, to wit, nine hundred negroes, they the said negroes not having been held to service by the law of either one of the states of territories of the said United States of America, against the form of the statutes of the said United States, in such cases made and provided and against the peace and dignity of the said United States . . .

There were two charges upon which the defendants were brought up separately. The first charge was for serving voluntarily on a slave ship -- the defendants were convicted. The second charge was for being engaged in the slave trade for which some of the text of the indictment is shown above -- the defendants were acquitted by jury. The case file for the United States vs. Nelson, et al., contains only a copy of each of the Attorney General's indictments. They differ only in the attempt to pinpoint the defendants' activities as being off the coast of Africa.

The defendants were fined $1 each and sentenced to three and one-half months in jail after conviction under the first charge.

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Proceedings from the New Era

The final glimpses of the court are captured after the Judiciary Act of 1869, which introduced the first circuit judges since the "midnight judges." Justice George Shepley first appears in the docket books of the United States Circuit Court of New Hampshire in the May term of 1870. Justice Clifford appears for the next two terms, and then Shepley returns for the October term of 1871 under the title of "Circuit Judge."

The following two brief items are taken from the clerk's docket book. The docket books are used to briefly describe the court's business, its judgments and orders, and attendance at court. These items illustrate not only the burgeoning of Internal Revenue Service cases, but also the changing vocabulary and shorthand of the court. The entries come from the beginning of the twentieth century but are strikingly similar to something one might find in today's records.

August 26, 1902 - United States vs. Frank Rivers: Indictment found. Vio sect. 5478. Deft. arraigned, plea guilty. Deft. sentenced to pay a fine of $100 and to imprisonment at hard labor in the States Prison at Concord for two years and to stand committed. Warrant to commit issued. Warrant returned served.

December 12, 1905 - United States vs. Samuel B. Strickland: Indictment returned. Vio. Int. Rev. Laws sect. 3242, 3239 R.S. Deft. arraigned, reading waived, plea nolo [nolo contendere]. 1st and 2nd counts not prossed. Deft. ordered to pay a fine of $20.00 and costs taxed at $20.00. Fine suspended during good behavior. Costs paid and respondent

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