Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 16

Ruminations: Royce Dynasty

ers, than to exact it from them for himself.”
Mr. Smalley, a close relative of Stephen
and a lawyer who learned the law in his
office, described him after his death with
these words: “His face was noble, expressive, and strongly marked. The gleam of his
mild gray eye illuminated the countenance,
and revealed every emotion whether grave
or gay that was passing within, moving the
looker-on, by a sort of magnetic influence,
to sympathize with him.” He rarely read
books, and in his practice and on the bench
rarely referred to cases. “He was not ambitious of the reputation of the ‘case-scavenger,’ but acted upon well settled principles, and by logical and well reasoned arguments drawn from those principles.”9
Stephen’s Decisions

As judge, Stephen was noted for his
“singular modesty and diffidence.”10 He
earned a reputation as the “Doubter” of
the court, although the case books reveal
only an occasional dissent. Decisions never came easy to him.11 He wouldn’t send
written opinions to the reporter “if he was
not satisfied that it was correctly decided,”
and he refused to report cases in “which no
new principle was involved, or no new application of an old principle.”12 As the pay
of judges was based on their reported decisions, this once exposed him to criticism

from the legislature.
When he served as presiding judge at
jury trials, he
had no ambition to exhibit the majesty of the law by working injustice into
individual cases.—He never intimated
an opinion to the jury, as to the weight
of evidence before them; but would,
in his charge, so present the case to
their consideration, that they would
naturally arrive at the result which he
desired.13
His opinions were brief and business-like.
A couple of paragraphs usually sufficed to
get to the heart of the issues. Frank Fish
celebrated that his “written opinions never
degenerated into essays upon the law at
large, and he was careful to confine his language to the matter before the Court.” He
was a respected equity judge as a result.14
Nearly two hundred decisions are printed
in the Vermont Reports under his name.
Some recite English or Vermont cases, but
they are rarely given as the reason for the
Court’s decision, when Stephen wrote the
opinion.
Consider one of his first recorded decisions, Catlin v. Brainerd (1825), where two
men named Catlin leased Barnard and his
partner the factory below the gristmill in
Burlington, and in a separate lease Guy

Catlin conveyed the machinery and tools
to them. The tenants never paid, and the
Catlins sued them in one action on both
leases. On appeal the issue was whether
the two should have been brought in separate actions. Stephen, speaking for the
Court, ruled them mutually enforceable,
the difference a mere formality, and justified trying the cases as one, a decision, Stephen wrote, “founded in reason, and fit to
be observed.”15 This liberality in pleading,
however, was anomalous. Stephen was a
true conservative when it came to respecting the traditions and forms of the common
law.16
Conflicts were not always as finely observed in Stephen’s day as in our own. He
wrote the decision of the Court in Hathaway v. Allen (1825), although six years before he had represented Hathaway in a malicious prosecution suit against the same
defendant.17 The 1825 case was a challenge to the filing of a writ of error, where
defendant’s counsel argued that the plaintiff’s failure to appeal the decision prohibited any further challenge to the decision.
Stephen refused to grant the motion to dismiss. In the last sentence of his decision, his
doubting nature is revealed.
As the statute, however, has not said
that this jurisdiction shall be exercised
in every case, and as very substantial
reasons exist why an appeal should
sometimes be taken, rather than a
writ of error, it is probably within the
powers of the Court, in certain circumstances, to refuse the latter remedy.
But as this is a discretionary power, it
should not be exercised to the injury
and surprise of parties; but should be
regulated by a rule of Court, to take
effect in future, and of which parties
may have notice. The exercise of such
a power, in this case, would be retrospective and unjust.18
In these few sentences, you can see the
mind at work.
Stephen rejected the claims of the Defendant in Bates v. Kimball (1826) as “the
tendency of the pleadings in this case, is
to overturn the whole course of administration, as established by statute in this state,
and restore the system of the common
law.”19 In Bishop v. Doty (1827), he wrote,
“We are satisfied, as well from the authorities consulted, as from the reason and justice of the case,” that Doty had no authority to carry away seventy-eight shocks of
“wheat in the straw” from Bishop’s land,
and so committed trespass. Bishop had
contracted with a farmer to grow one season of wheat on Bishop’s land. Stephen explained that the farmer (whose name was
Farmer)

16

THE VERMONT BAR JOURNAL • SUMMER 2014

www.vtbar.org