by Paul S. Gillies, Esq.
RUMINATIONS
The First Dissents
Judge Nathaniel Chipman
Judges try not to dissent. Sometimes
they concede a point or persuade their fellow judges to change opinions to make
them more acceptable. Other times they
just have to disagree. Looking closely at
the first dissents in the canon of the Vermont Supreme Court reveals how tentative
the early judges were in making them. From
1778 to 1860, when Isaac Redfield retired,
there were only thirty-two dissents in the
first eighty-one years of the Court. Many
years there were none. Many judges served
without showing any difference of opinion
with their brethren.
The first recorded differences of opinion
among judges come nearly two decades after the Court was formed. In King Administrator of Ingersoll v. Van Guilder (1797),
Judge Lott Hall thought a justice certificate
was admissible, Judge Enoch Woodridge
disagreed, and Judge Nathaniel Chipman agreed with Hall.1 In Wilcox v. Sherwin (1797), Chief Judge Nathaniel Chipman and Judge Hall disagreed on whether
a warrant and rate-bill were admissible in
court if there was no proof of a legal assessment or a legal town meeting vote establishing the tax. Hall thought it could be
admitted, Chipman that it not be allowed.
In this the chief was outvoted, despite his
long and scholarly explanation. “Woodbridge, J. agreed in opinion with Hall, J.,
and gave the same reasons.”2 In neither decision is the word “dissent” used. They really weren’t dissents; they were just disagreements over evidence in the midst of a trial.
There are fewer appeals before 1824 because the Supreme Court was principally a
trial court in those years. All the members
participated in every trial. After 1824, the
highest court became largely appellate,
giving judges the distance to focus on how
they regarded a particular controversy or
8
Judge John Mattocks
Judge Isaac Fletcher Redfield
legal question, allowing the judges to focus
purely on the law, as the facts were largely established. This separation of powers
within the judicial function was essential for
the development of doctrines, principles,
and precedents applicable to other cases,
bringing predictability and consistency to
the process, particularly after the reports
began to be regularly published after 1822.
Many dissents appear without comment.
In 1820, for instance, when Judge Joel
Doolittle dissented from the Court’s decision in Adams v. Clark, he wrote no explanatio