A Vermont Common Law

Editor's Note: Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.  Common law is the term used to describe legal precedent that comes strictly from case law and prior decisions.   Today Paul presents us with the case that first recognized that Vermont had established its own common law, which marked both a legal and historic milestone for the relatively new state..

By Paul Gillies

Matthews v. Hall, 1 Vt. 316 (1828)

            Vermont adopted the common law, “as it is generally practiced and understood in the New England states,” in 1778, by an act of legislation.  In 1787, under the leadership of Nathaniel Chipman, the General Assembly enacted “so much of the common law of England as is not repugnant to the Constitution or to any act of the Legislature of this State.”  The act went to require Vermont courts to be guided by all English statutes passed before October 1, 1760 in interpreting that common law. 

            Today this seems very strange.  There they were, their Revolutionary wounds just healed, accepting English law as the basis of Vermont law.  Statehood in 1791 didn’t change that law, and it is codified today as 1 V.S.A. § 271:  “So much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution or laws shall be laws in this state and courts shall take notice thereof and govern themselves accordingly.”

            Twenty-seven years after that 1787 act, Nathaniel Chipman was sitting as Chief Judge of the Vermont Supreme Court when a prosecutor, trying to save his indictment from a procedural defect, argued that its form had been in use for more than 30 years, and that justified treating it as valid, as the “common law of Vermont established by usage.”  Chipman, the great advocate of the common law of England, was aghast.

That laws affecting essential rights, should, by custom, originate in our Courts, independent of the constitution and laws enacted by statute, and in opposition to the principles and maxims of the common law so called, is a thing I cannot understand. It is a doctrine which ought not to be countenanced in this Court. If admitted, we should soon, instead of a system formed and matured by the experience of ages, have a crude undigested mass, or rather farago of opinions, adopted through indolence or want of present information, and adopted and continued in practice, mostly from the same causes. And where are the Courts to look for this common law of Vermont? Not to the authority of decided cases, nor to the writings of the ancient sages of the law, approved through a succession of ages. —No, we must resort for the most part to the fallible memory of the Judges, or members of the bar, or to crude precedents of forms, which may in some Counties, by chance, have long passed without exception, and without notice . . . .

State v. Parker, Chip. 301, 6 Am.Dec. 735 (1814).

            Then, just a few years later, William Matthews tried to collect on a note payable to Mark Richards “or bearer,” held by Mercy Hall.  The note was not endorsed to Matthews by Richards, and Hall’s lawyers said this made Matthews’ claim unenforceable.  On appeal, Hall’s attorney Jacob Collamer echoed Chipman’s horror, arguing that the decision at trial was wrong in asserting a Vermont common law as justification for judgment for Matthews. 

The case, by this view of it, though involving but a small sum of money, becomes at once of immense importance, and embraces no less than this question, is there in Vermont, a law-making power, distinct from legislation? Can the will of the people, which is law in regularly constituted governments, be expressed in any way of which courts are to take cognizance, but by their constitutional organ, the legislature? Let the ingenuity of counsel, and the learning of Judges be exercised to equivocate and disguise the point, it is still the same; and the extent of judicial legislation is now to be tested. —It is equally vain for the judiciary to shrink behind the popular will, general consent, or any such evasion, for the only mode of expressing public sentiment, so as to constitute law, in this country, is “constitutional legislative enactment.”

Matthews v. Hall, 1 Vt. 316, 317–18 (1828). 

            Judge Titus Hutchinson wrote the opinion for the Court.  He was not convinced by Collamer’s arguments.  He said the practice of accepting notes payable to bearer has “generally passed without objection” and that this “shows the general understanding that such was the law of the state.”  He finished with this thought:

            This state has so long existed, that we may well treat, as common law of this state, that which has always been considered law here. . . . This is contrary to the common law of England. And this decision was founded upon the long and uniform practice of the courts in Vermont.

Id. at 331.  Chief Justice Richard Skinner expressed a dissenting opinion, but it has gone unreported. 

            Take a deep breath, now.  A line has just been crossed.  The Revolution is complete.  The wall of English law has been breached, not entirely, but surely enough.  Tradition—Vermont tradition—becomes precedent, and law.  Is this legislating from the bench?  Chancellor Kent has the answer:

            It would be . . . extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed.  It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other.  When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court on appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.

James Kent, I Commentaries on American Law (1826, 1884), 472.

           

            Repose is the rule when others are just not right.  This is the key to all decision-making.  It is the reason the judiciary is by nature conservative.  Its best answer is, leave it alone.  Don’t tip over longstanding practice.  Like prescriptive use, in right-of-way disputes, after time passes, and nobody objects, practices take on the aura, and the power, of law.