Vermont Bar Journal, Vol. 40, No. 2 Winter 2016, Volume 41, No. 4 | Page 12

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 www.vtbar.org