Ruminations
| Publication year | 2021 |
| Pages | 12 |
by Paul S. Gillies, Esq.
Kent's Comment
"Judge Story, the only man to be thought of in the comparison, is certainly a very learned and able man; but I cannot help regarding Judge Prentiss as the best jurist in New England."[1]
This compliment, given by the highly regarded Chancellor James Kent of New York, author of Commentaries on American Law (1826-1830), is probably the nicest thing ever said about a Vermont judge or justice. It was also something that stuck to the memory of Samuel Prentiss, Vermont Supreme Court Judge and Chief Judge, U.S. Senator, and U.S. District Judge for Vermont, and was repeated in obsequies and memorials of the man each time Prentiss was mentioned. Looking at it closer, it's clear the statement is more than just an acknowledgement of greatness in a judge. It is also a judgment on the comparative merits of Justice Joseph Story, U.S. Supreme Court Justice (1812-1845) and author of Commentaries on the Constitution of the United States (1833), among other treatises.
There was and is no formal process of determining who is the best jurist in New England or anywhere else for that matter. But Kent's word carried great weight, as he had become an acknowledged Solon as Chancellor, the American Blackstone, even before he published his Commentaries. No one baptized Kent with the power to declare firsts (and seconds). He just said it, in-tending it to be repeated, particularly in Vermont, and to get back to Prentiss. He likely didn't intend that Story would learn about it, and there is no evidence that it got back to Story.
Superlatives are risky. The intent of the bestower of a compliment may vary. It might be obsequious, attempting to curry favor. It might be used to exalt the standing of the complimentor. Who can judge another but a peer? Kent carefully limited the jurisdiction of his judgment to New England, while he remained in New York, outside of the contest.
Rev. W.H. Lord's 1857 eulogy of Prentiss alluded to the comment. "It is said of him," said Lord, "by the most distinguished lawyer and statesman of his age, that his opinion on a legal question was more reliable than that of any other jurist in the country."[2] Rev. Lord's version had extended the range of Prentiss's authority beyond New England to the entire United States.
Kent's use of the honorific "finest jurist" was first reported by Daniel Pierce Thompson in his History of the Town of Montpelier (1860), prefaced by what appears to be the reason for the judgment. Thompson writes, Sometime during Judge Prentiss' Chief Justiceship of this State, Sir Charles Bell, of the Common Bench of England, made, in an important case, a decision which was wholly new law in that country; and it was after-wards discovered, when the reports of the year, on both sides of the water, were published, that Judge Prentiss had, not only in the same year, but in the same week or fortnight, made, in one of our important suits, precisely the same decision, which was also then new law here, arriving at his conclusion by a process strikingly similar to that of the English Justice. This remarkable coincidence, involving the origin of then new, but now well established points of law, and involving, at the same time, an inference so flattering to our Chief Justice, at once attracted the notice of the celebrated Chancellor Kent of New York, who soon after, falling into company with several of our most noted Vermonters, cited this singular instance in compliment to the Vermont Chief Justice, and after remarking that there was no possibility that either the American or English Justice could be apprised of the other's views on the point in question, would up by the voluntary tribute:- ....[3]
Samuel Prentiss was Chief Judge of the Vermont Supreme Court from November 1829 to November 1830. Thompson gives us hints but fails to name the decisions so lauded by Kent. Because Kent's comment was delivered orally, there is no contemporaneous record of his words.
Thompson published his History in 1860, almost thirty years after the comment was made. Thompson knew Prentiss as both were residents of Montpelier, and Prentiss himself is likely the best source of the comment. We have to ask...
What case?
Despite a valiant search, no "Sir Charles Bell" appears as a judge of the Common Bench in the research for 1829-1830. The Sir Charles Bell who gets most of the attention in these years is the Scottish surgeon who first saw the difference between the posterior and anterior nerve roots in the spinal cord, in 1807. "Bell's palsy" is named for him.[4] Suppose Thompson had that part wrong. What cases, decided during Prentiss's chief judge year might qualify? With that perhaps a coincident decision from the Court of Common Pleas for that year would satisfy the hunt.
Looking at the 23 cases decided by Chief Judge Prentiss in his final year on the court, there are several that fit the description of "new law." One is State v. Wheeler (1830). There the defendant had been charged in the information with a felony, while the crime itself, if there was one, was actually a misdemeanor. It seemed to the court to be a private matter, not really a criminal offense. Chief Judge Prentiss wrote, "Whether or not the fact alleged in the information is a misdemeanor, and can be the subject of a criminal proceeding, is a question upon which we have entertained doubts, but upon which we have at length formed an opinion. The distinction between those trespasses for which there is a private remedy only, and those for which there may be a public prosecution, is not laid down in the books with much accuracy or precision. It seems, however, to be clear, that though every trespass, which is a disturbance of the peace, is indictable, a mere trespass, which is the subject of a civil action, cannot be converted into an indictable offence."[5] If the court adopted the reasoning of the appellant, "the doctrine would make almost every trespass or injury to private property the subject of an indictment, and would give to the courts a fearful and alarming jurisdiction, which could be exercised in general to little other purpose than vexation and oppression." Wheeler fits the description of the Prentiss decision enunciating a new doctrine of law. A review of the English cases, however, failed to find a coincident case.
In Bigelow v. Kinney (1830) Prentiss ruled that an infant's contract was voidable, not void, and that once reaching majority age the former infant had to disavow the contract within a reasonable time. Nine years was too long. Silence is acquiescence. Prentiss relied in part on English law, and on a "recent work of great excellence and value, the production of an accomplished and experience jurist, justly distinguished for sound discriminating judgement, and surpassed by none in extensive and accurate erudition," Chancellor James Kent. Kent's Commentaries, recently published, settled that a minor's rights to void a contract were "laid down, after he had been of age a reasonable time, either from his positive acts in favor of the contract, or from his tacit assent under circumstances not to excuse his silence."[6]
Johns v. Stevens (1830) settled the obligation of a dam owner to compensate neighboring owners of land flooded to operate a mill. Prentiss wrote, "If public policy require that encouragement should be given to the building of mills and manufactories, and the liability to frequent actions at common law will discourage the proprietors of mill seats in this state from building in places where they must overflow the land of others, it belongs to the legislature to interpose, and make such provision as policy, consistently with justice, may require."[7] Neither Johns nor Bigelow have counterparts in the English reports for that year.
The best candidate is Pomeroy v. Mills (1830), which settled the question of whether a town can convey a part of a public park on which a public easement has been established. The park, still making news today, is the Burlington City Park. Burlington had not condemned the property for use as a park and courthouse, but dedication and acceptance was conceded given the forty years the land had been used for those purposes. Prentiss called it the creation of a "common highway." He concluded the town had no authority to convey a part of the property for the use of a private business because it owned only an easement, not the underlying fee.[8]
There is a case decided by the Court of Common Pleas that turned on the principles enunciated in Pomeroy v. Wells. This was The King v. Jeremiah Glover, decided in November of 1830. Mr. Milner, a lawyer representing the purchaser of a footway, argued that English statutes authorized the sale. "But it is not of course the land to be sold," he wrote, "because the public have not the land, but only an easement over it."[9] The Court, in the opinion of Lord Tenterden, held that an order for stopping up a footway cannot direct that the "footway so stopped should be sold." That may be the best answer. A review of the decisions in the Law Journals for 1829-1830 reveals no better example, although reading the two cases in tandem does not amaze or excite, on grounds of coincidence or reasoning, as it had for Kent.
It's a little concerning that Kent used the coincidence of decisions as the basis for his compliment of Prentiss. Implied in the judgment is the idea that when an American judge agrees with an English judge on similar facts and comes to the same conclusion on the law, that this constitutes a notable accomplishment for the American judge. Following English common law as a precedent is acceptable; finding the same basis for a legal question at the same exact moment, when as Thompson explained came without any communication between the two judges, is somehow self-justifying. But is it sufficient to justify the...
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