Ruminations
| Publication year | 2016 |
| Pages | 8 |
| Citation | Vol. 41 No. 4 Pg. 8 |
The First Dissents
Paul S. Gillies, Esq.
Judges try not to dissent. Sometimes they concede a point or persuade their fellow judges to change opinions to make them more acceptable. Other times they just have to disagree. Looking closely at the first dissents in the canon of the Vermont Supreme Court reveals how tentative the early judges were in making them. From 1778 to 1860, when Isaac Redfield retired, there were only thirty-two dissents in the first eighty-one years of the Court. Many years there were none. Many judges served without showing any difference of opinion with their brethren.
The first recorded differences of opinion among judges come nearly two decades after the Court was formed. In King Administrator of Ingersoll v. Van Guilder (1797), Judge Lott Hall thought a justice certificate was admissible. Judge Enoch Woodridge disagreed, and Judge Nathaniel Chip-man agreed with Hall.[1] In Wilcox v. Sher-win (1797), Chief Judge Nathaniel Chip-man and Judge Hall disagreed on whether a warrant and rate-bill were admissible in court if there was no proof of a legal assessment or a legal town meeting vote establishing the tax. Hall thought it could be admitted, Chipman that it not be allowed. In this the chief was outvoted, despite his long and scholarly explanation. "Wood-bridge, J. agreed in opinion with Hall, J., and gave the same reasons."[2] In neither decision is the word "dissent" used. They really weren't dissents; they were just disagreements over evidence in the midst of a trial.
There are fewer appeals before 1824 because the Supreme Court was principally a trial court in those years. All the members participated in every trial. After 1824, the highest court became largely appellate, giving judges the distance to focus on how they regarded a particular controversy or legal question, allowing the judges to focus purely on the law, as the facts were largely established. This separation of powers within the judicial function was essential for the development of doctrines, principles, and precedents applicable to other cases, bringing predictability and consistency to the process, particularly after the reports began to be regularly published after 1822.
Many dissents appear without comment. In 1820, for instance, when Judge Joel Doolittle dissented from the Court's decision in Adams v. Clark, he wrote no explanation for his disagreement.[3] Then, beginning in the late 1820s, patterns emerged, revealing rivalries between judges that reflect real differences. The first dissent to explain itself was in Treasurer of the State v. Holmes (1826). Judge Samuel Prentiss wrote the majority opinion, and Judge Titus Hutchinson reluctantly dissented. He lamented doing it. "I am so unhappy to dissent from my brethren in this dissent," he wrote. Thus begins the classic opening for most dissents. Later judges frequently began their dissents with the word "reluctantly" in the first sentence, or "regrettably," as if only something critically important could move a judge to step away from the majority and announce that disagreement publicly.[4] Hutchinson regarded the court's decision, which held there was no right to a writ of scire facias when a sheriff, delinquent in paying sureties on bail, was imprisoned, very wrong. The majority concluded the plaintiff had no remedy under Vermont statutes, a decision Hutchinson regarded as a judicial repeal of a statute.[5]
Hutchinson dissented again in Skinner v. Watson (1832). Chief Judge Charles K. Williams also dissented, making this the first three to two decision in the court's history. The majority opinion in Skinner, written by Nicolas Baylies, responded to the dissent in the body of the decision, another first. While a dissent, by its nature, takes issue with the majority, the decision of the court can't easily ignore the opposing view and engages in direct debate with the dissenter over the issue that separates them.
The issue was the precedential value of unpublished decisions. The chief wrote in dissent that in his prior years on the Court the question in this case—whether a copy of an execution, rather than the original, could validly be recorded in a town clerk's office—had been settled in the negative. "It has been urged, however," he continued,
that these decisions [denying the validity of the recording] are not reported. I consider them, nevertheless, as authorities which ought to govern our decision in this case. The decisions of this Court do not derive any additional efficacy as authorities, from being printed. A hasty decision, whether reported or not, leads to great and manifest inconveniences, may be overruled. A course of decisions, whether reported or not, which have been considered as establishing the law, and which affect property to any great extent, ought not to be overruled without weighty and good reasons therefor.
Hutchinson agreed, stating,
I know there have been some decisions to the contrary of this, as mentioned by Mr. Justice Williams. These are not reported, so that we might see the exact grounds of such decisions. But I have no doubt of the fact, that, at a time, this court considered the law so settled as to exclude further investigation, than to learn that the recording was by copy.[6]
Hutchinson was the author of four majority decisions that triggered dissents. In Dow v. Town of Hinesburgh (1826), he concluded that proof that a man was ordained in a town's church, in order to qualify for land set aside for the first-settled minister, could be given by parol evidence, when there was no official record of the event. He then rejected the minister's claim for lack of such proof. Chief Judge Richard Skinner said he wasn't dissenting, but he was.
I feel it my duty to say, that I do not wish to be considered as assenting to the opinion just given as the opinion of this Court, although I am not so opposed to it as to wish to enter an express dissent. I feel as though the facts secondly offered to be proved, amount to a legal settlement:—at least, I have great doubts if they do not.[7]
In this approach, doubt is not dissent and non-assent isn't dissent either.
Skinner, along with Judge Samuel Prentiss, dissented to Hutchinson's opinion in Strong v. Strong (1827). He didn't explain himself there, but noted that his dissent would appear in the next reported case, which was Hall v. Dana (1827).[8] This is the first dissent to spill over into another decision, but not the last. The Chief Judge was diffident about his disagreement with the majority in the former case.
As to the case of Strong v. Strong, I have only to remark, that, although the decision is made without my concurrence, I have no disposition to oppose it, and shall hereafter most cheerfully acquiesce in administering the law, as far as I may be called to that service, conformably thereto. I more readily yield to the introduction of a rule, that has been adopted in some of the states about us, from a consideration that it has been sanctioned by the Supreme Court of the United States, and has the approbation of many able jurists in this state. My reasons for dissenting, are, that this Court, for the last thirty years, and it is presumed ever since its organization, has uniformly, and in repeated instances, decided, that the equitable rights of an assignee of a chose in action could not at law be protected against the release of the party to the contract, and the party upon the record. When I formerly held a seat upon this bench, whatever my wishes may have been, I felt constrained not to depart, without legislative authority, from the course pointed out and imposed by such a weight of precedent ... The decision itself, made in that case, is unsupported by precedent.[9]
There is something very unhappy about this dissent that dare not speak its name. Skinner is a good soldier. He will follow the law despite his dissent. He regrets having to make this statement, because he was made to accept the principle in the earlier case that he didn't approve of either. He isn't dissenting, but he's not concurring either. A dissent-o-meter should be invented to measure the depth of any disagreement. These early dissents are too respectful. But that would change shortly.
Mattocks' Dissents
John Mattocks was elected to the Supreme Court in 1834 and reelected in 1835. He dissented twice in those two years, and his are the first great dissents of the early period. His dissenting opinion in Lyon v. Strong (1834) forcefully objected to the Court's ruling on enforcing the Sabbath laws as applied to a contract for the sale of a mare.
He explained,
It is always with distrust that I entertain an opinion different from my brethren, and with diffidence that a dissent is expressed. Being fearful that the principle necessarily involved in the decision that has just been made in this cause will not prove salutary, and it being an innovation upon what has heretofore been considered the law of the land, I deem it proper to express the reasons that lead me to a different conclusion from a majority of the judges present.
... [I]t seems to me the effect of this decision will be to permit a fraudulent party to violate a principle that is older than the Sabbath, and in the New Testament better defined and much more frequently enjoined than the observation of that holy day—eternal justice; and surely those who will profane the Lord's day should have no restraints removed that tend to prevent their defrauding the unwary. Still the inquiry is, what is the law applicable to the question? For if that is clear, there is no room for judicial policy.
... I believe to adjudge contracts void made on that day will not tend to the better observance of the day; that neither the common nor statute law, nor any former decisions in this state authorize, nor does sound policy require, the decision which my...
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