The phrase is from Matthew 23:23: “Woe
unto you, Scribes and Pharisees, hypo-
crites; for ye pay tithe of mint, and cummin,
and anise, and have omitted the weightier
matters of the law, judgement, mercy and
faith, or rather fidelity: these ought yet to
have done, and not to leave the other un-
done.” This is Jesus talking about lawyers.
That is very wise, and a fit ending to a
true rumination, except how can we not
make certain logical conclusions based on
these word choices? First, they are made
consciously. No judge could write cavil and
not expect that it would sound foreign to
the reader. The judge is using the term dis-
paragingly in most cases. To call out cavil is
to accuse one of acting in a consciously dis-
honest fashion, attempting to distract the
decision-maker from the “weightier mat-
ters of the law,” critical of shenanigans and
www.vtbar.org
tricks, and chicane. To the advocate who
has made choices on what to argue, the
same conclusion might not be shared.
If cavil came with an audio clip, like a cell
phone alert, you would hear a click or snap
as it appeared in a decision, signifying the
closing of a mind to what is alleged. It tolls
all further conjecture or consideration of
something that need not be raised again.
____________________
Paul S. Gillies, Esq., is a partner in the
Montpelier firm of Tarrant, Gillies & Rich-
ardson and is a regular contributor to the
Vermont Bar Journal. A collection of his
columns has been published under the ti-
tle of Uncommon Law, Ancient Roads, and
Other Ruminations on Vermont Legal His-
tory by the Vermont Historical Society.
____________________
In re Williams, 197 Vt. 39, 59 (2014), ¶ 53.
State v. Johnstone, 194 Vt. 230, 238-239
(2013), ¶ 25.
3
McCormack v. Rutland Hospital, Inc., 194 Vt.
242, 249 (2013), ¶ 16.
4
Trudell v. State, 193 Vt. 515, 519 (2013), ¶ 7.
5
Ex-Ante means the warrant was based on
assumption and prediction, not actual results,
which are ex-post. Bryan Garner, A Dictionary of
Modern Legal Usage (Oxford and New York: Ox-
ford University Press, 1995), 334.
6
In re Search Warrant, 193 Vt. 51, 94 (2012): ¶
85.
7
Id.
8
State v. Wyrocki, 191 Vt. 177, 181-182 (2012),
¶ 11.
9
In re Houston, 180 Vt. 535, 543 (2006): ¶ 25.
“Frosted” is deserving of its own investigation as
1
2
THE VERMONT BAR JOURNAL • WINTER 2016-17
a term of derision in Supreme Court decisions.
10
Lomberg v. Renner, 121 Vt. 311, 315 (1959).
11
State v. Jarvis, 89 Vt. 239 (1915).
12
Shum’s Adm’x v. Rutland R. Co., 81 Vt. 186
(1908).
13
Crosby v. School Dist. No. 9 in Readsboro, 35
Vt. 623, 628 (1863).
14
Lyon v. McLaughlin, 32 Vt. 423, 425 (1859).
15
William Shakespeare, Henry IV Part 1 (New
York: Houghton Mifflin Company, 1997). 907;
Conant v. The Bellows Falls Canal Company, 29
Vt. 263, 271-272 (1857).
16
Id.
17
Davis & Aubin v. John Bradley & Co., 28 Vt.
118, 127 (1855).
18
State v. Williams, 27 Vt. 724 (1855).
19
Lapham v. Briggs, 27 Vt. 26 (1854).
20
Sherman v. Johnson, 20 Vt. 567 (1848).
21
Boston India Rubber Factory v. Hoit, 14 Vt. 92
(1842).
22
Fenton v. Clark, 11 Vt. 557 (1839).
23
Kirkaldie v. Paige, 17 Vt. 256 (1845).
24
Graves v. Adams, 8 Vt. 130, 133 (1836).
25
Allen v. Warren, 9 Vt. 203, 207 (1837).
26
Torrey v. Field, 10 Vt. 353 (1838).
27
Dulany v. Wells, 3 H & McH. 20, 42 (1790).
28
Burges v. Hack, 2 Va. Colonial Dec. B195, 3
(1735).
29
Thomas Cranmore, An Answer unto a Crafty
and Sophistical Cavillation (London: Iohn Daye,
1590).
30
John Milton, Paradise Lost, Book X, lines 758-
759 (New York: The Odyssey Press, 1957), 424.
31
“Cavil,” Oxford English Dictionary (Glasgow
and New York: Oxford University Press, 1971),
204-205.
32
Smith v. Martin, 93 Vt. 111 (1919).
33
Newll v. Town of Whitingham, 58 Vt. 341
(1886).
crossing of the t’s and the dotting of
the i’s; to make the law, designed to
further justice and an even distribution
of the public burdens, an instrument
of oppression, wrong, and injustice;
and all this, simply because the listers-
-the administrators of the law--did not
know their duty. . . . Why should their
ignorance of the law, and unfounded
fears for themselves, be made a penal
offense on the plaintiff, and be visited
on him by more than doubling his just
taxes? 33
15