Hutchinson was the author of four majority decisions that triggered dissents. In Dow
v. Town of Hinesburgh (1826), he concluded that proof that a man was ordained in
a town’s church, in order to qualify for land
set aside for the first-settled minister, could
be given by parol evidence, when there was
no official record of the event. He then rejected the minister’s claim for lack of such
proof. Chief Judge Richard Skinner said he
wasn’t dissenting, but he was.
I feel it my duty to say, that I do not
wish to be considered as assenting
to the opinion just given as the opinion of this Court, although I am not so
opposed to it as to wish to enter an
express dissent. I feel as though the
facts secondly offered to be proved,
amount to a legal settlement:--at least,
I have great doubts if they do not.7
In this approach, doubt is not dissent and
non-assent isn’t dissent either.
Skinner, along with Judge Samuel Prentiss, dissented to Hutchinson’s opinion in
Strong v. Strong (1827). He didn’t explain
himself there, but noted that his dissent
would appear in the next reported case,
which was Hall v. Dana (1827).8 This is the
first dissent to spill over into another decision, but not the last. The Chief Judge was
diffident about his disagreement with the
majority in the former case.
As to the case of Strong v. Strong, I
have only to remark, that, although the
decision is made without my concurrence, I have no disposition to oppose
it, and shall hereafter most cheerfully acquiesce in administering the law,
as far as I may be called to that service, conformably thereto. I more readily yield to the introduction of a rule,
that has been adopted in some of the
states about us, from a consideration
that it has been sanctioned by the Supreme Court of the United States, and
has the approbation of many able jurists in this state. My reasons for dissenting, are, that this Court, for the last
thirty years, and it is presumed ever
since its organization, has uniformly, and in repeated instances, decided, that the equitable rights of an assignee of a chose in action could not
at law be protected against the release
of the party to the contract, and the
party upon the record. When I formerly
held a seat upon this bench, whatever
my wishes may have been, I felt constrained not to depart, without legislative authority, from the course pointed
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out and imposed by such a weight of
precedent ... The decision itself, made
in that case, is unsupported by precedent.9
Ruminations
tled as to exclude further investigation,
than to learn that the recording was by
copy.6
There is something very unhappy about
this dissent that dare not speak its name.
Skinner is a good soldier. He will follow the
law despite his dissent. He regrets having
to make this statement, because he was
made to accept the principle in the earlier case that he didn’t approve of either. He
isn’t dissenting, but he’s not concurring either. A dissent-o-meter should be invented
to measure the depth of any disagreement.
These early d