Ruminations
tutions; for I believe with the Scotch
covenanters, in my own neighborhood,
that the law as well as a man “may like
the kirk well enough without riding in
the rigging.”10
Here is no diffident dissent.
In Burr’s Ex’rs v. Smith (1835), Mattocks
filed the longest and most erudite dissent
to that time.11 The executors sued five charitable societies, challenging their claims under a will, arguing as they were not formally
incorporated, they could not qualify for the
legacies. The case was important enough—
and significant money was involved—to
cause the Court to delay its decision. Two
years earlier, the Court had heard argument, but failed to decide it, and since then
there had been a change in the makeup of
the Court. Chief Judge Hutchinson had lost
his bid for another term and Nicholas Baylies had also stepped down, replaced by
Jacob Collamer and Mattocks. Reargued a
second time, before only three judges, who
disagreed, the case was heard a third time
in 1835. Even then, explained Williams, “we
are not now agreed.” He believed the disagreement “arises from the difficulty of the
subject itself; and that there is no prospect
that any future time, or by any other court,
there would be more unanimity.”12 He confessed that the reasons he was led to his
conclusion may not have been shared with
others in the majority. That shows the way
opinions were written at that time. Williams
was writing for himself, announcing the decision of the majority, but not necessarily explaining the reasons that every judge
agreeing to the outcome accepted. The
majority in Burr’s Ex’rs ruled the societies
were qualified to receive the bounty of the
will, through the exercise of the Chancery
Court’s equitable powers, further enhanced
by statute, even though the bequests were
otherwise unenforceable. Extensive citations to English law were used to justify this
10
power.
Mattocks had left the bench before he
wrote his dissent, which was joined by another judge whose name is not given in the
report. Mattocks explained his duty to take
a contrary position stemmed from “the importance of the question, and the fear that
the precedent may lead to dangerous consequences.” Mattocks agreed with the majority that no legal estate passed by will to
the societies. He wrote, “I am not dissentient on this point.” But the final conclusion that the Court could award the funds
to the societies Mattocks adamantly opposed. That was not the way he understood
the English authorities or the power of the
court of chancery. Nor was it the way he
saw religion.
And Sir Francis Moore has said, that religion is variable according to the pleasure of succeeding princes. It might
happen, that piety and charity, about
the modes and forms of which good
men disagree, would vary with succeeding chancellors, and with the excitement and fluctuations of the times
and topics that engage the attention of
the public. The difficulties are not the
common ones which all courts have to
encounter, of distinguishing cases, and
applying some known rule or principle to the one in hand; or if the case is
new, the best analogous principle, and
which there is sometimes perplexity
in doing, but can generally be effected with tolerable correctness; because
most honest men are agreed, in the
main, about what is just. But the difficulty in the cases in question is intrinsic; for all things that are lawful, are not
commendable; and what is commendable at one time, is not at another, from
mere change of public sentiment.
... But in the matter of favor, as being
pious and charitable uses, to say “no”
THE VERMONT BAR JOURNAL • WINTER 2016
to any of them, would be invidious—to
say “yes’’ to them all, would be a tremendous stretch to the conscience of
an orthodox chancellor. Nothing but
the express warrant of the legislature
would induce me to handle these exciting questions, some of which there is
already danger may affect the tranquility of the nat