Doe, Charles (1830–1896)

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DOE, CHARLES (1830–1896)

Charles Cogswell Doe, associate justice of the New Hampshire Supreme Court from 1859 to 1874, and chief justice from 1876 to 1896, is remembered as one of the country's greatest common law judges. He is less renowned for his contributions to constitutional law. One reason may have been his bold originality. During his years on the bench, constitutional law was less tolerant of the unorthodox and less receptive to eccentric genius than was the common law. And Doe was original if not eccentric. The perspective from which he viewed the state constitution is an example. The drafters of the document had adopted words indicating they were writing a social compact and Doe insisted it had to be interpreted as a social compact. Under the other types of constitutions—those that were organic laws, not compacts—the government, Doe maintained, possesses inherent powers limited by certain enumerated provisions (for example, the federal bill of rights). When the liberty of a citizen is pitted against the authority of the state, the citizen must find specific wording to restrain government. A constitution that is a compact, by contrast, has no place for inherent power. As a result, Doe held in Wooster v. Plymouth (1882), civil rights are not immunities but "privileges which society has engaged to provide in lieu of the natural liberties so given up by individuals" under the "contract." The proposition that the compact made government an agent, and individual rights absolute except when specifically surrendered, permitted Doe to relieve the citizen of the burden of establishing constitutional limits on state authority. The state had to demonstrate that the power it claimed had, by compact, been delegated to it.

The chief constitutional doctrine resulting from the social compact doctrine was equality. "The bill of rights," Doe ruled in State v. U.S. & Canada Express Co. (1880), "is a bill of their equal, private rights, reserved by the grantors of public power." Equality, he added, is "practically the source and sum of all rights, and the substance of the constitution." Doe sought to make equality the most fundamental civil right protecting nineteenth-century Americans.

The national development in constitutional law most troublesome to Judge Doe was the United States Supreme Court's decision in the sinking fund cases (1879). Fearing that the ruling endangered private property rights, he wrote several opinions hoping to diminish those cases' influence. In Corbin's Case (1891) Doe even invented the concept of "constitutional estoppel" to bar the state government from taking an action that in a corporate charter it had expressly reserved the right to take. Doe's particular genius even led him to criticize fletcher v. peck (1810) and dartmouth college v. woodward (1819), two decisions most contemporaries thought protected property rights. Doe believed they weakened property rights and increased arbitrary legislative power. Better had they been decided on the separation of powers principle than on the contract clause.

In Doe's hands, the separation of powers principle became a means of enlarging his court's jurisdiction. His distrust of legislative power resulted in support of laissezfaire principles, but his belief that courts should impose common law tests of reasonableness on business supported a measure of regulation. The supremacy of constitutional limitations was his foremost principle.

John Phillip Reid


Reid, John Phillip 1967 Chief Justice: The Judicial World of Charles Doe. Cambridge, Mass.: Harvard University Press.

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Doe, Charles (1830–1896)

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