Ruminations
change their minds or even expressly criticize the holding of the majority. He looks
beyond the immediate dispute, and pronounces his view of the law for future courts
to consider.
Redfield dissented from the chief judge’s
ruling in the case of Ex parte Holmes (1840).
This was a habeas corpus petition of a Canadian citizen, accused of committing murder in Canada, asking for his release. Vermont Governor Silas Jenison had ordered
him arrested at the request of the governor of Lower Canada. The court released
Holmes, based on a decision of the U.S.
Supreme Court, or at least a perception of
such a decision, as the information provided to the Vermont court was incomplete.
Redfield began his opinion sounding as
though he did not dissent from the majority.
The history of this case is so peculiar
that I feel justified in briefly stating the
reasons which have induced me to acquiesce in a decision, which I feel to be
unjust and impolitic, if not dangerous
to the peace of our community, and
which I cannot well reconcile with the
fair exposition of the acknowledged
principles of the federal and state governments of the United States.
Why acquiesce, then? Because Redfield
had to accept the higher court’s ruling was
12
how he started what was actually a dissent
to the decision of the U.S. Supreme Court.
I would, at least, suffer the states to exercise their power, so indispensable to
the regulation of their internal police
and the execution of their own criminal laws, until congress made some
provision for its exercise. It seems unreasonable that murderers and robbers and vagabonds of every degree,
should be permitted to thrust themselves upon us, and when we, in obedience to our own laws, attempt to expel them, we should be prevented, by
some dormant power in the national
government, which they refuse exercising for our relief, or by some constructive prohibition or limitation to which
we never understandingly assented.
But the decision is made, and even if
it fill one land with felons of the most
daring character, we must abide the
consequences, till we can obtain relief
in some constitutional mode. I can only
express my regret, that a majority of
that court should have found it necessary to come to so undesirable a result.
There is a note following Redfield’s opinion that explains how Bennett had dissented to the state’s exercise of jurisdiction
over Holmes originally, before the case was
appealed to the federal court. It is a curious
THE VERMONT BAR JOURNAL • WINTER 2016
statement, as it reports what he thought,
but is not in his own words. The note explains that he believed, “if the state government had the concurrent right to exercise this power with the general government, still the governor would have no
right to call this power into exercise without some provision in the state constitution
or an act of the legislature conferring upon
him such right.”21 In 1857, the legislature
put an end to the awkward situation of a
judge of the Supreme Court having to sit in
review of decisions he had made as a trial
judge by prohibiting the practice.22
Redfield dissented from Judge Luke P.
Poland’s decision in Buck v. Squires (1850),
an appeal where the majority reversed
Judge Redfield’s trial ruling.
The importance of this case to the immediate parties would hardly justify
me in making a formal dissent from
the opinion of the court; and could I
feel any assurance, that the decision
made in this case will not hereafter be
regarded, as having virtually set aside
the well settled rule of law, that land
bounded, by deed, or other conveyance, upon a fresh water stream, not
navigable, or by the side of a highway,
is to be regarded as extending to the
centre of such boundary, I would surely not occupy the time of the court, or
space in the reports, by making any
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