In the civil law it is said, “things sa-
cred, religious and holy, belong to no
individual,” and that “any man may
at his will render his own place reli-
gious by making it the depository of a
dead body;” and it is also said, that if
a dead body be laid in a place by the
consent of the owner, the place be-
comes religious though he afterwards
dissents. 134
Cooper’s translation of the full quotation
for that quotation provides, “Things sacred,
www.vtbar.org
religious and holy, belong to no individual:
for that which is of divine right, is not pri-
vate property.” 135
Following these citations back to their
source allows a reader to see what the
judge saw in formulating his opinion. You
can imagine him at a desk, lit by a candle
or lamp, running his thumb down the page
of a worn copy of Cooper, and then inking
in a citation at the end of a string of other
authorities.
Thomas Jackson was the illegitimate son
of Caudice, who once was the slave of a
man named Moore, a citizen of New Hamp-
shire. After both mother and son died, the
Town of Burlington claimed his estate as he
had died without heirs, that Thomas’s sis-
ter Rhoda, also born out of wedlock, could
not be his heir. Judge John Mattocks wrote
the decision in Town of Burlington v. Fosby
(1834) on appeal. He wrote:
Finally, it has been said that the stat-
ute could never intend to give such
great privileges to these illegal chil-
dren, as it would encourage libertinism
and illicit intercourse between the sex-
es. As to the policy of the law, it is for
those who make, and not for those
who administer it, to judge; and when
the provisions are not doubtful, there
is no discretion in the court. Whether it
be the most wise and humane to pun-
ish this sort of children for the impuri-
ties of their parents, is not our prov-
ince to decide. But there is nothing
very new or alarming in this statute. By
the laws of Justinian, bastards were al-
lowed conditionally to inherit to their
mothers; and in most of the nations of
Europe, with the exception of inher-
iting and transmitting to their illegiti-
mate relations, they are placed on the
footing of other subjects; and we re-
fuse them the right to inherit any part
THE VERMONT BAR JOURNAL • SUMMER 2017
of their father’s estate, which some of
the ancient nations allowed them, and
only permit them in all respects to be
the children of their own mothers. 136
porting that proposition with a list of Eng-
lish cases and ending with Cooper’s Justin-
ian as the ultimate source. A buyer cannot
rescind a contract upon discovering that
“his purchase is defective or unsound, un-
less he made a previous and special stipula-
tion, that the seller should stand to all de-
fects.” Caveat emptor was the rule of Jus-
tinian, and the rule of Vermont, he claimed.
Curiously, the citation is not to Justinian di-
rectly, but to Cooper’s notes, interpreting
the English and American common law ba-
sis for the doctrine. 132 Chief Judge Richard
Skinner recited the same principle as had
Phelps in his opinion, but did not mention
Justinian among his sources. 133
In another case, the proprietors of Bur-
lington set aside the public common in
1798. Various businesses obtained leases
from the town to build on that land, next
to the courthouse. E. & T. Mills erected
a printing office on the common in 1821.
A neighboring businessman sued him for
damages, claiming a public nuisance. In
Abbott v. Mills (1831), the jury favored the
plaintiff, and on appeal the high court af-
firmed the decision below, after ruminat-
ing on the way property can be dedicated
to the public. Judge Charles K. Williams
wrote the decision for the court. He cited
Cooper’s Justinian.
Rhoda was declared the true heir. Justin-
ian’s original language appears in Book II of
the Institutes. “[E]ven spurious children are
admitted by the Orfician senatus-consul-
tum to the inheritance of their mother.” 137
Here Justinian looks back to a decree en-
acted during the consulate of Quintus Mar-
cius and Spurius Postumus from the second
century B.C., bowing to ancient authority in
the same way as Vermont judges and jus-
tices have done during the last two centu-
ries. 138
Myron Leslie was a Bennington attor-
ney who appeared on behalf of the plain-
tiffs in the appeal entitled Baxter v. Vincent
(1834). 139 He argued that a contract made
in Lower Canada by two parties each of
whom were citizens of that country, should
not be enforced in Vermont under the trust
laws of the state. In his argument, he ex-
plained, “This action, as prescribed by the
statute, is to be regarded as creating a spe-
cific remedy or method, to enforce a legal
right; but not as giving a legal right which
did not before exist. The maxim of the civil
law is, ‘render to every man his due;’ and
this precept, as laid down by Justinian, is
enforced in a variety of ways, according to
the statutory regulations of different coun-
tries.” The citation is the first line of the first
book of Justinian’s Institutes. “Justice is the
constant and perpetual disposition to ren-
der every man his due.” 140 An uncharacter-
istically laconic Isaac Redfield, appearing
as co-counsel, is reported to have “con-
fined himself to an examination of the sev-
eral statutes relating to the trustee process,
and contended they admitted of no ratio-
nal construction, by which a person resid-
ing without this state could be adjudged
21