Ruminations: the Ross Court: a Group Portrait
| Publication year | 2005 |
| Citation | Vol. 2005 No. 12 |
December 2005b - #6. RUMINATIONS: The Ross Court: A Group Portrait
James M. Tyler
John Rowell
Laforrest Thompson
Loveland Munson
Russell Taft
Henry Start
Look at these faces, with their beards and mustaches, and stern faces. These are the seven members of the Ross Court. There is the Chief himself, with his long chin whiskers and clear eyes, Taft looking impatient, Munson tired, Thompson engaged, Tyler forthright, Rowell reserved, and Start almost diffident.
Ross was Chief Judge from 1890 to the beginning of 1899, a period of little more than eight years, a period of stability on the court, in terms of membership. Only the Moulton Court (1938-1949) held together longer in years, and then, as now, there were only five justices.1 From 1870 until the creation of the superior court in 1906, there were seven judges on the Vermont Supreme Court. Although they were seven in all, they never sat together, as appeals were usually heard by less than the full court.2 Judges had nisi prius duties in the county courts, as well as their appellate responsibilities, and two or three were often absent.
To understand the Ross Court, first meet Jonathan Ross, Chief Judge, and his history. Ross, the eldest of twelve children, grew up on land in Waterford, Vermont, originally cleared by his grandfather. One of his earliest memories was his father starting a fire with his flintlock, one winter morning, in the days before the match was generally available. "I do not think I had a boughton garment until I was 16 or 18 years old," he remembered. "I never saw a lemon, orange, banana, pineapple, grapes and such like fruits in my early years."3
His worldview was formed in a kind of Eden. He explained:
Never did I hear of such a thing as a man undertaking to buy the influence or note of another with money or whiskey or New England rum or inducements. There were no Esaus in those days. Every man was a king. He wielded in part the government and was so far responsible for it. He understood the ballot honestly held and intelligently wielded made him however poor, the equal of the wealthiest before the low. However poor he would have felt himself most keenly insulted by the offer of any pecuniary or other consideration for his vote. He could not sell his influence without selling himself.4
The six Associate Judges were Russell Taft of Williston, John W. Rowell of Randolph, James M. Tyler of Brattleboro, Loveland Munson of Manchester, Henry R. Start of Bakersfield, and Laforrest H. Thompson of Irasburg. Including Ross, all were born before the Civil War, but only Start served in the military, and he enlisted too late in the war to see any action. Ross was the eldest, at 64 years of age. Taft, Rowell, and Tyler were the same age (55), all born in 1835.5 Thompson, at 42, was the youngest. Munson was 47, and Start, 43.6 They aged together for eight years. They dissented and doubted, but for the most part they coalesced.
All but Rowell were Vermont natives. He was born in Lebanon, New Hampshire, but raised and educated in Randolph. Both Start and Thompson were born in Bakersfield. Ross was the only college graduate (Dartmouth); all of the others had only a grammar school education, aside from the learning they received in law offices, and later in the courts, with two exceptions. Without attending college, Tyler graduated from Albany Law School, and Rowell, after some study with a Vermont lawyer, took a course of lectures at a law college in Poland, Ohio. Thompson read the law on his own, without the supervision of a lawyer, borrowing books from two Irasburg attorneys.7 All had been in private practice before coming to the court.
All members of the court had served in the legislature, in both the House and Senate, with the exception of Tyler, who served only in the House and had been to Congress for two terms. Taft had been Lieutenant-Governor. All but Taft and Munson had served as state's attorney; Munson and Thompson had both been probate judges. All but Munson had frequently argued cases before the Supreme Court before their appointments or elections. In 1890, when this court formed, Ross had been on the court for twnety years, Taft for ten, Rowell for eight, Tyler for three and Munson one year, while Start and Thompson were new to the court.8
The eight years of the Ross Court was a pivotal moment in Vermont social and legal history, a time when a decidedly conservative set of seven men, all strong personalities with fixed, legal convictions, studiously held on to values of their century as it came to an end with the rise of progressivism, liberal thinking, and a still surprising legislative and judicial conversion to new ways of thinking about government and law.
___________The Times___________
Squinting historians say the Gilded Age ended about 1890, and call the next period the Progressive Era.9 You can see the problem right there. Vermont, as with America generally, was in a period of flux, but in some ways was unwilling to admit it. Certainly no one would have said Vermont was progressive in 1890. Color it Republican at the beginning of this period, and conservative. By the end of the decade things became far more rambunctious.
In 1890, Carroll S. Page of Hyde Park was Governor. Benjamin Harrison was President of the United States.10 The Republicans controlled the legislature and the executive department in Vermont. Nationally the control of the House of Representatives had shifted to a Democratic majority.11 New ideas were on the march, and conservatives, including many of the established leaders, were discomforted by the changes in political thinking. Theodore Roosevelt left his ranch in the Dakota Territory for good that summer.12 Two hundred Indians were killed at Wounded Knee.13 Child labor was common in the factories and mills. Labor unions struggled to organize workers. Women were organizing for voting rights.
In Vermont, change was hard to dismiss. Centralization of state government came through the first statewide general funding for education and in 1892 the first statewide sharing of highway moneys, both raised by a state tax imposed on the grand lists of the towns, and then reapportioned according to more uniform standards.14 Vermont had about 332,000 people in 1890,15 but many young people were leaving the state after reaching adulthood.
The nineties ended with a bang. The Spanish-American War united the country during the presidency of William McKinley. After rough riding, Teddy Roosevelt became Vice President, and soon after, unexpectedly, President. The new century brought change to America, and even Vermont was to be jolted us out of the old ways of thinking.
____Administration of the Court__
In the early years of the Ross Court, the entire experience of serving as a member of the court changed radically. Where previously the court rode circuit, starting in January in Chittenden County and then moving weekly from shire to shire until reaching Caledonia County at the end of the summer, the court moved into a permanent home.16 In 1886, the State House was expanded, and in 1892 the legislature allocated space for the Supreme Court. A courtroom was constructed in front of the great fireplace in the room that is presently the legislative lounge. There was still considerable movement of judges over the landscape. Judges presided over trials at the county courts, and had assignments to particular shires. For appeals and matters of original jurisdiction, there were general terms of the Supreme Court in January, May, and October, and special terms in the shires as the Court deemed necessary.17
As a direct result of this new permanence, the decisions of the Court grew longer and more nuanced. During the eight years of the Ross Court, the Supreme Court published 938 decisions, spread over nine volumes.18 As the decisions were evenly assigned, each judge wrote about thirteen decisions a year. There were fifty-one cases in which dissents were filed (a little more than 5 percent). Affirmations of the decisions that were appealed outnumbered reversals 520 to 418. The majority of the cases involved individual disputes, where the result did nothing to alter or improve the common law or discuss constitutional issues. But there were important decisions among the small matters. In these, you can hear the judges talking to each other, as well as to the wider audience of those who purchased Vermont Reports.
The cases reveal the workings of the Court. Every case before the Court was decided on oral argument, sometimes more than once. French v. Osmer (1895) was twice argued.19 For Duron v. Sullivan (1894), the Court heard oral argument at the Franklin County term in 1890, and at the general term in 1890 and 1891, and finally achieved a majority for a decision at the general term in 1893.20 While we cannot look beyond the door to the conference room, the cases reveal intellectual struggles within the Court, particularly as new experiences required a harder look at established principles.
Today, justices have three alternatives. They can join with the majority; they can file a dissent; or they can file a concurring opinion, agreeing with some of the court's decision. During the late nineteenth century another option was available to them: they could doubt. They never really explained themselves. Opinions just ended with a comment such as, "Rowell doubts, and Tyler and Munson dissent."21 Doubt is healthy for anyone. In State v. Slack & Clough (1897), Rowell explained, "it must be admitted that it is very difficult to draw the line with such precision as to make it easy in all cases to apply the rule thus modified; for in the realm of judicial discretion there is...
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