Summer 2009-#10. RUMINATIONS Nathaniel Chipman and the Common Law.

Author:By Paul S. Gillies, Esq.
 
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Vermont Bar Journal

2009.

Summer 2009-#10.

RUMINATIONS Nathaniel Chipman and the Common Law

THE VERMONT BAR JOURNALVolume 35, No. 2Summer 2009 RUMINATIONS Nathaniel Chipman and the Common LawBy Paul S. Gillies, Esq.The large rocks in the pond near the farm where he grew up appeared to be moving. He could see the tracks on the bottom of the pond, indicating that some powerful force had driven them toward the shore. The observer returned to the spot year after year, noting the continuing progress of the stones. Finally he had the answer.

I had observed, that as the warm weather advanced in the spring, the ice at the north part of the pond, where it was exposed to the influence of the sun and southerly winds, disappears to a considerable distance, before it was disengaged from the south shore, by a tall and thick forest of hemlock and spruce, it was protected from the influence of both; and that when released from the shore, the ice was sometimes driven to the north by a southerly wind [and] this led me to believe that the ice was the agent in the removal of those stones.(fn1)

One spring he watched it happen, and heard a "grating noise of the gravel beneath, and plainly saw the motion of the stone, as well as the gravel and earth that was accumulated and accumulating before it."(fn2)

He talked about the phenomenon with other men of science, and was surprised to find, "that at a time when the ardor of philosophical research has left almost no corner or recess of the physical world unexplored, this should have been still considered as a wonderful secret of nature."(fn3) At that point, the scientist turned inward, drawing a lesson from the experiment. But I believe it often happens, that while we are looking out for something more recondite and profound, we overlook the most obvious cause, which seems to solicit our notice-and perhaps as often reject it as an alien or a vulgar intruder, because we find no niche to accommodate it, in our favorite system.(fn4)

Nathaniel Chipman wrote this article in 1828 at the age of seventy-five.(fn5)He was living in Tinmouth at the time, where he had spent most of his life.(fn6)He lived another fifteen years, and remained vigorous and inspired to the end of his days. In 1833, age eighty, he published Principles of Law, a new version of the book of legal philosophy he had written and published forty years earlier in 1793.(fn7) During the last decades of his life, Chipman lived in poverty and seclusion.(fn8) His only source of income was his revolutionary war pension.(fn9) When he died in 1843, he had outlived every man who served on the Vermont Supreme Court before 1813. His obituary explained, "The generation in which Judge Chipman held so conspicuous a place, has long since passed away, and he has himself lived so many years in seclusion that his existence was almost forgotten, save by those who never forget generous learning."(fn10) Five years before he died, he was referred to as "the late Chief Justice" in a reported Supreme Court decision.(fn11)

The mortal remains of Nathaniel Chipman rest on a hill in the Tinmouth Cemetery, near a large plinth with these words on it: "A principal founder of the civil institutions of this State, and framer of its fundamental laws."(fn12)

His Long Life in Brief

He was born on November 11, 1752 in Salisbury, Connecticut, the eldest of ten children of Samuel Chipman and the former Hannah Austin. His father was a blacksmith.(fn13) Thomas Chittenden was a neighbor.(fn14) Chipman's education consisted of nine months of preparation for college with the Rev. Jonathan Lee. After he entered Yale at the age of twenty-one, his family moved to Tinmouth and settled on a farm.(fn15)

In a letter to a friend, written shortly after he began the study of law in Salisbury, Connecticut, after graduating from Yale in 1777, he wrote to a friend about his future plans.(fn16) "I shall probably settle in Bennington, where I shall indeed be rara avis in terris, for there is not an attorney in the state. Think Fitch, think what a figure I shall make, when I become the oracle of law to the State of Vermont."(fn17) He said it in jest, without any intention of having it repeated in print , but his prediction proved true.

He was a product of his experience, education, and upbringing. Before he was an oracle of law, he was a soldier, serving on Washington's staff at Valley Forge, in 1778, and participating in the Battle of Monmouth.(fn18) He was a poet in his early years.(fn19) At Yale he learned Hebrew, Greek, and Latin, and his brother Daniel says that he read the Old Testament in Hebrew, the New Testament in Greek, Homer, Virgil, and the minor Greek and Latin poets, every year of his life thereafter.(fn20) He needed only five to six hours sleep a night, and routinely awoke early.(fn21) He was small of stature, and he had an air of haughtiness, although it was said he could talk to any man.(fn22)

Nathaniel Chipman moved to Vermont in the spring of 1779, and upon admission to the bar became Vermont's third lawyer, after Stephen Row Bradley and Israel Smith.(fn23) During his first years, and in between the various public offices he held, he practiced law.(fn24) He was not good with clients, according to his brother. "The fact seemed to be, that he had acquired so confined a habit of seeking after truth conscientiously, that he could not readily enter into the feelings of his client, imbibe his prejudices, and with him have a full connection of the justice of his cause, without which no advocate can make the most of a bad case."(fn25)

Chipman quickly assumed an important role in government, becoming the leader of a faction of political figures that challenged the established order, including the first leaders of the state, like the Allens and Chittenden. He also grew enemies. Visiting the office of Stephen Row Bradley at Westminster, where the legislature was meeting in the winter of 1780, Chipman was assaulted by Matthew Lyon. Lyon said any man who would say what Chipman had just reported did not have a spark of honesty, and Chipman called Lyon an "ignorant Irish puppy." Lyon then grabbed Chipman by the hair and broke the comb that held it in place, causing Chipman to grab a pen knife in defense. Before any real damage occurred, Bradley grabbed Lyon from behind, and flung him to the corner of the office with Chipman's help. Chipman and Bradley then laughed at Lyon openly. Lyon became an enemy for life.(fn26)

Chipman was elected by Tinmouth voters as their Town Representative in 1784, 1785, 1808, and 1809.(fn27) The General Assembly chose him to serve on the Supreme Court four separate times, first at the age of thirty-three, in 1786.(fn28) After two years, he left the bench and worked as one of the commissioners appointed to negotiate the problem of New York claims to Vermont land, a prerequisite to Vermont joining the union.(fn29) He was elected to the Supreme Court a second time in 1789, but this did not interfere with his commitment to Vermont statehood. At the constitutional convention in Bennington in January, 1791, his speech led the members to the nearly unanimous vote in favor of statehood.(fn30) He was then appointed to carry the news to Congress.(fn31)

Nathaniel Chipman married Sarah Hill in 1791, and they had five sons and two daughters. Three of the sons died in infancy.(fn32) After statehood was achieved in 1791, Chipman was appointed Vermont's first U.S. District Judge. As he had little to do in that job, he used the time to produce Sketches of the Principles of Government, published in 1793, a book that has been called the first systematic study of law written in America.(fn33)

He was elected a third time to the Vermont Supreme Court in 1796, as chief justice. While serving on the Court, he also fulfilled a legislative drafting assignment given him by the Vermont General Assembly, as the principal author of the Revision of 1797, the first complete systemization of Vermont statutes since government started in 1777.(fn34) In 1797, the legislature elected Chipman one of Vermont's U.S. Senators.(fn35) Referred to by his peers as "Judge Chipman," he was a partisan of President John Adams. In the Senate it was said of Chipman that he needed "deep water to play in." He was respected.(fn36) He presented the nation with a very different face from the rough countenances of the revolutionaries formerly associated with the new state.

His last two one-year terms on the Supreme Court began in 1813. For the third time he was elected chief justice.(fn37)These two years produced Chipman's greatest work, the decisions by which he is best known and revered. He also served on the 1813 Council of Censors, and compiled a political brochure entitled The Constitutionalist, urging the creation of a Vermont Senate, an idea a generation ahead of its time.(fn38) But the Federalist Party was about to collapse, and he lost his seat on the Court in 1815. That was his last public office.

He died on February 13, 1843, at the age of ninety. He was a man of action, but also a man of words. No one who has served on the Vermont Supreme Court wrote and published more than he did in his ninety years.

Sketches of the Principles of Government (1793).

This is a book of legal philosophy written for a national audience. The word "Vermont," or its special history, is missing from the text. From his prospect of the world in Tinmouth, Judge Chipman looked out on the world with a benign idealism that...

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