Ruminations |
established beyond all question or cavil .” 18
The U . S . Constitution requires Vermont to give full faith and credit of the judgment of another state ’ s court decisions . “ This is too explicit to admit of much cavil ,” wrote the Chief Justice , in Lapham v . Briggs ( 1854 ). 19
Redfield sounded irritable in his decision in Sherman v . Johnson ( 1848 ). It was a pauper support case , with the Fayston Overseer of Poor pursuing the father of a child born out of wedlock . The mother had signed a release from liability , and the Overseer was pursing the natural father to cover the costs of maintaining the child . The father argued the release cleared him of liability too . To Redfield the law was a problem because the legislature couldn ’ t leave the subject alone . He wrote , “ But to save all cavil , the legislature has from time to time passed several statutes upon the subject , each more dark and inexplicable than its predecessor , which it was intended to illuminate , until now it is wholly impossible to conjecture , from the words of the statute , what could be the precise intention of the framers . That perhaps , of itself , is sufficient reason , why the statute should be regarded as wholly inoperative , and the matter stand as it did before , leaving the release of the mother to operate to the extent , only , of her rights .” 20
Redfield wrote he was tempted to take issue with Chief Justice John Marshall ’ s comment in Boston India Rubber Factory v . Hoit ( 1842 ), but then held back . “ We are not inclined to cavil at , nor to criticise , these decisions of that very able and learned court , for we do not well see how they could have been otherwise , under the existing provision upon the subject .” 21
Redfield ’ s dissent in Fenton v . Clark ( 1839 ) is the first reported cavil in Vermont case law . He wrote , “ If the law upon any one subject had been put at rest , and that beyond all possible cavil , I supposed it was in regard to contracts for service , where the entire term was to be performed , before payment of any part of the price .” 22
Lawyers ’ use of cavil
Isaac Redfield was first elected to the Supreme Court in 1835 . He may well have used cavil before then , but there were four cases in his time on the bench when lawyers used the term . In 1845 , the Vermont Reports still included long synopses or quotations of the arguments of counsel as part of the printed decision . In Kirkaldie v . Paige , the reported case shows defendant ’ s counsel Thrall and Pond arguing that statements by a party that would otherwise seem defamatory , made after a complaint was filed , should be inadmissible at trial . The lawyers wrote , “ This court should adopt such a rule , as will hereafter effectually silence
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such regrets and cavillings , and one that will not deserve them .” 23 The plaintiff ’ s lawyer in Graves v . Adams ( 1836 ), wrote , “ The plain language of the complaint , shows the identity of the person which the objection denies , beyond the possibility of cavil .” 24
In Allen v . Warren ( 1837 ), lawyer Roswell Field , arguing over the meaning on an 1821 act on scire facias , stated , “ Again , in Sec . 6 , the word judgment recurs , and in a connexion , not admitting of any cavil about its signification .” 25 And in 1838 , when Field appeared as a defendant , Redfield listened as Field ’ s attorneys Asa Aikens and Phineas Smith argued that the “ second charge ,” claiming the wife instigated Field to obtain a fraudulent divorce , “ is justified , beyond cavil .” 26
Cavil in history
Obviously the word was in long use before Vermont judges ever started using it . The first reported use in a United States court was Dulany v . Wells ( 1790 ), in the General Court of Maryland , by Francis Scott Key , part of whose argument is repeated in the decision . Construing the treaty that ended the Revolutionary War on behalf of a party , Key explained , “ this case must ultimately rest on the true liberal construction of the treaty , upon such principles as will , in its own language , best ensure a permanent peace , by making liberal equity and mutual reciprocity ( free from partial advantage ) the basis of it ; and only suggesting to your honours , that the empire of America , now risen to importance amongst the nations of the earth , should establish its honour by a religious adherence to the extent of its engagements , free from cavil and exempt from chicane .” 27
The earliest reported decision in America to use cavil was Burges v . Hack ( 1735 ). Before the General Court of Virginia , in a probate case , the court distinguished an earlier decision , stating , “ And this Difference I admit but conceive it is not our Case for here the dying without Issue stands by itself & is not coupled with the Contingencies of dying within Age or before the Dau ’ rs Marriage but separate from them by the disjunctive Or If it had been In Case either of them die within Age and without Issue There perhaps it would be within the Distinction but here the Sentences are disjoined & must be taken distributively and then the dying without Issue has no Relation to or Dependance upon those Contingencies This cannot be thought meerly a Cavil about Words but the Particles make really a great Difference in the Sense for Instance if I promise to build a House & give 500 £ I must do both but if the promise is to build a House or pay 500 £ The doing of either will discharge the Promise And this Distinction I insist on in the Case at Bar is
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not of my own Invention but we find it taken in the Books .” 28
This is hard to read , but that was a different time . Jump back now to 1580 , when Thomas Cranmer wrote An Answer unto a Crafty and Sophistical Cavillation . He was Archbishop of Canterbury and published this response to a book by the Bishop of Winchester . It ’ s challenging to read , but appears to be an argument relating to transubstantiation based on how two bodies cannot be together in one place . 29 In this contest , cavillation is an epithet , a condemnation by title of a point of view that Cranmer rejected completely .
Milton should not be left out of this . He has Adam telling Eve how wrong she was , in Book X of Paradise Lost , saying of the rules for the Garden laid down by God , “ Thou didst accept them : wilt thou enjoy the good ,/ Then cavil the conditions ?” 30
The word cavil has fourteenth century origins , according to the OED , and stems from the Latin cavilla and the Old French caviller . 31
The tithe of mint and anise and cummin
Enough about cavil . There is an alternative , straight from the New Testament . It ’ s a little longer , but it has poetic inspirations . It ’ s the tithe of mint and anise and cummin . It was last used in 1919 in Smith v . Martin , where Justice William H . Taylor dismissed defendants ’ attempts to challenge the damages awarded plaintiff . He wrote , “ Defendants argue that the plaintiff was not deceived by the representation that the balance sheet was ‘ a true statement , the true standing of the company ,’ because he admitted that at the time it was made he knew that it was false . The argument is suggestive of paying “ tithe of mint and anise and cummin ,” while omitting “ the weightier matters of the law .” The merit of the claim is its ingenuity ; but it regards form , and not substance .” 32
Chief Judge Jonathan Ross , dissenting in Newell v . Town of Whitingham ( 1886 ), an early tax appeal decision , commented ,
The inventory and oath tendered being a full and complete compliance with every moral and legal requirement of the law , and lacking only in the prescribed words of the oath , to hold that the plaintiff was liable to be doomed for a violation of the law to my mind is “ to tithe mint and cummin ,” which the law requires not , and to pass over judgment and justice , in its administration , to an honest , conscientious , but unlearned tax-payer ; to sacrifice substance to shadow ; to disregard the vital principle-- “ the equalization of taxation ” --in order to stick to the letter of the law even to the
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