USA > Vermont > Early history of Vermont, Vol. II > Part 10
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"It is with some reluctance that I shall enter again into public service, all circumstances consid- ered; yet the good of this people lies so near my heart, that when duty calls, nothing shall deter me from acting that part I judge will contribute most to the peace, happiness and prosperity of the people. Therefore with a firm reliance on receiv- ing that kind aid and support from the Council and House of Representatives that the nature of my office requires, I shall accept the office to which I am elected, and am ready to take the qual- ifications pointed out by the constitution; and I pray God to grant me wisdom to conduct agree- able to His will, and then I trust it will be for the best good of His and my people."
CHAPTER IX.
EARLY LAWS OF VERMONT.
Previous to 1724, the territory now called Ver- mont was an entire wilderness, and down to that time there were no traces of human existence within her borders except an occasional residence of the Indian. The soil for ages had been enriched with decaying vegetables. This was the situation of the country when it began to be the abode of civilized man. Lands were cheap. The first set- tlers were principally emigrants from New Eng- land and for the most part of an English origin, which accounts for the adoption of English cus- toms and laws hereafter mentioned. All the dan- gers and hardships incident to pioneer life and new settlements in a vast wilderness surrounded by savages and exposed to want, were encount- ered by the settlers. None but energetic, hardy and brave men and women would seek homes in the then unbroken wilderness of Vermont; but they came and arose above the perplexing difficul- ties that beset them. They had high ideas of lib- erty and independence and great confidence in their abilities which served to carry them through the hardships of the early settlements and the try- ing ordeal through which they had to pass in their controversy, not only with Great Britain, but with New York, that has been so fully delineated
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in this and the previous volume. Many of the first settlers were men of superior talents though unpolished. Their traits of character always marked their action and proceedings in the Coun- cil and the field and fitted them to inaugurate and maintain their town and State governments that they afterwards set up for themselves. The first settlers did not come here with the views of estab- lishing an independent government, but to culti- vate the soil, to make themselves homes and pro- cure a competency for themselves and their chil- dren. It was not so much a matter to them, whether they should be under the government of New Hampshire or New York, provided they were permitted to enjoy, unmolested, the hard earned. fruits of their industry. With this view in mind they paid for their lands and took the title of the same by grants from the Governor of New Hamp- shire with a confident reliance that the title thereto, derived from the Crown, was without a flaw. When New York claimed they had a supe- rior right to their lands and sought to dispossess them of it, the settlers' only alternative was to make a determined resistence, and resorted to the law of self defence. New York seemed to adopt the principle that might made right. The set- tlers, therefore, said, We recognize no authority coming from New York, but we will establish our own laws and maintain our rights by force of arms if need be.
At this time there was no state government worthy of a name. When New York made her claim to the lands to Connecticut River, New
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Hampshire soon withdrew her claim to the terri- tory and consequently her protection to its inhab- itants. This left nothing but town governments apart from New York. These towns on the New Hampshire Grants were small republics. There was no other regular government in the State. Everything was unsettled; there was no social compact, nor any bond of union save that which resulted from common wants and common dan- ger of the people, but it was a strong bond created out of urgent necessity. Every arm of the settlers was nerved for resistance against New York. The settlers fell back upon their natural rights and the law springing from them. To give effect to these rights and the resistence, town meetings were called through the grants; com- mittees of Safety were appointed, to act in behalf of the people in the defence of their rights in the absence of a State government. Conventions were called in which different towns were represented by their town committees or delegates. From these organizations decrees went forth for the maintenance of the rights of the Grants, and espc- pecially against the actions of the Yorkers, which were enforced by the application of the beech seal. The executors of these decrees became a terror to evil doers.
Until the adoption of the Constitution in 1777, the people were governed by the most despotic power, and but little regard was paid to such laws as exist in well regulated governments. Af- ter the government of the State was organized un-
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der the Constitution in 177S, the people began to live under laws enacted by the General Assembly which reflected the will of the people, and not lon- ger under arbitrary power. The people saw the necessity of having a government of law. So much of the common law of England as was ap- plicable to our local situation and circumstances, and not repugnant to the Constitution and laws of the State, was adopted and consid- ered the law of this State. This was a wise pro- vision, as the common law had grown up and ex- panded, little by little, through a long term of years to meet the wants and necessities of the peo- ple. At the October session of the Assembly of 178S, an Act was passed constituting a Court of Chancery. "It was enacted that a Court of Chan- cery be constituted within and for the State of Vermont to be holden in the several Counties at the several terms and places appointed by law for holding the Supreme Court of judicature of this State in each and every County. And the judges of the Supreme Court of judicature as aforesaid, two of whom to be a quorum, and they are here- by constituted and appointed judges as chancellors of said court with all the powers exercised by that court in the Kingdom of Great Britain and the neighboring States, not repugnant to the Consti- tution. And that all bills or matters heretofore brought and depending before a Court of Equity in this State and undetermined be taken up in the same stage in which they were left by said former Court."
The Act of the General Assembly at its October
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session in 1786, constituting the Supreme Court, a Court of Equity, repealed the Act of October 22, 1779, that authorized the Governor and Council and General Assembly to try certain cases in eq- uity.
Thomas Chittenden on taking the oath of office as Governor on the 14th of October, 1779, made a speech before the General Assembly, the noble words of which are worthy of record, and are as follows : viz., --
"GENTLEMEN :
The Legislature having constitutionally met, I cannot forbear expressing to you my highest sat- isfaction in the many great and important advan- tages arising from the due execution and careful administration of the laws, since they took place, and cannot but rejoice when I reflect on the infin- ite difference between a state of anarchy and that of a well regulated government; the latter of which we daily experience. And I most earnestly recommend to all magistrates, and others in au- thority under me, together with the freemen over whom I have the honor to preside, to persevere and let their conduct be uniformly just, and up- right, and encourage one another to unite iu the supporting and maintaining their common rights ; which cannot fail to recommend this State to the impartial world. At the same time am unhappy to inform you that, notwithstanding the generous and lenient measures with which the disaffected inhabitants in the lower part of Cumberland County have been indulged, yet they continue in their unjustifiable obstinacy against the authority
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of this State; I shall, however, recommend the suspension of the laws intended to have been ex- ecuted on those offenders, at present, in conse- quence of a letter received from his Excellency John Jay, Esquire, President of Congress, inclos- ing certain acts passed by that honorable board, relating to a final settlement of all difference sub- sisting between this and the adjacent States; which I now submit to you for your considera- tion; a subject of the greatest importance, and de- mands your most serious attention.
"Your agents to Congress have attended, agreeable to their instructions, from time to time. Their proceedings I shall now lay before you for your perusal and approbation ; which, I hope, will prove satisfactory. From every circumstance, I think we have the highest reason to believe that from the efforts of our agents and the interposi- tion of Congress, our unhappy disputes with the neighboring States, will soon terminate in a final and happy issue.
"With respect to the present situation of the domestic affairs of the State, it is with pleasure that I inform you that the measures pursued by the Board of War, by the assistance of Divine Providence, have proved effectually sufficient to defend our frontiers, against the ravages of the common enemy, while they have been permitted to execute their horrid vengeance on many of the innocent inhabitants of the different parts of the continent ; which, in some measure, proves the ap- probation of Heaven to our Independence, and justifies the measures pursued to support and de-
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fend it. As the time for which the troops now in service, are engaged, expires the middle of Novem- ber next, you will be careful to make such provi- sions for future defense, as your wisdom shall direct."
The act specially referred to was that of June 1779, to prevent persons from exercising author- ity unless lawfully authorized by the State, which, though general in terms was specially aimed against all persons who should attempt to act in the name and by the authority of New York, and was as follows : viz.,
"BE IT ENACTED, &c. that if any person with- in this State, (except continental officers) shall, af- ter the first day of September next, accept, hold, or exercise any office, either civil or military, from or under any authority, other than is or shall be derived from this State, and be thereof duly con- victed, shall, for the first offense, pay a fine not ex- ceeding one hundred pounds, lawful money, ac- cording to the discretion of the court which may have cognizance thereof; and for the second of- fence of the like kind, shall be whipped on the naked body not exceeding forty stripes, according to the discretion of the court before whom they are prosecuted: and for the third offence, shall have their right ear nailed to a post, and cut off; and be [ branded in the forehead with the capital letter C, on a hot iron. This act to continue in force until the rising of the Assembly in October, 1780, and no longer."
On March 23, 1778, the Assembly passed an act to pay the surgeons for dressing the wounds of
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the soldiers of this State that were wounded in the Bennington action. After the laws that had been enacted and promulgated in 1779, his Excel -. lency Thomas Chittenden issued his proclamation requiring their due observance and was as fol- lows: viz.,
"WHEREAS, The virtuous efforts and laudable exertions of the good people of this State, have not only enabled them (by the benevolent interpo- sition of the all-wise Governor of the universe) to frustrate the wicked devices, the despotic and ty- rannical designs of their foreign as well as domes- tic enemies, but has procured to themselves the in- estimable blessings of a free and independent gov- ernment, and merited the esteem and confidence of the United States of America.
"And Whereas, it has ever been found (by uni- versal experience) in all free governments, to be of the highest importance, both for the honor of God. the advancement of religion, and the peace, safety, and tranquility of the inhabitants thereof, that good and wholesome laws be established, and jus- tice impartially administered throughout the same, in order to secure each subject in the peace- able enjoyment of his rights and liberties both civil and religious. And whereas the laws of this State are now promulgated in a full and legal manner amongst the inhabitants thereof, whereby each subject may become acquainted with his duty :
"I have therefore thought fit, by and with the advice of my Council, and at the request of the General Assembly, to issue this Proclamation, and
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do hereby strictly require, charge and command all persons, of what quality or denomination so- ever, residing within this State, to take notice thereof, and govern themselves accordingly, on pain of incurring the penalties therein contained.
"And I do hereby further strictly require and commannd all magistrates and justices of the peace, sheriffs, constables, and other civil officers, to be active and vigilant in executing the laws aforesaid, without partiality, favor or affection.
"Given under my hand, and the seal of this State, in the Council Chamber, in Bennington, this 26th day of February, in the third year of the Independency of this and the United States of America, and in the year of our Lord, one thous- and seven hundred and seventy-nine.
THOMAS CHITTENDEN.
By his Excellency's command, with advice of Council. JOSEPH FAY, Sec'y. GOD SAVE THE PEOPLE."
The early laws of Vermont are not only inter- esting subjects of study, but they throw much light on the habits and disposition of the people, show- ing their independence and spirit of patriotism and showing a disposition to deal severely with those who were disobedient, lawless, and dis- loyal to the government. There appears to have been but little Statute law enacted by the Genenal Assembly, except that which was intend- ed for a temporary purpose, until 1779. The fol- lowing note found in Slade's State Papers throws light on this point : viz .-
"Much exertion has been made to obtain a copy
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of the laws of 1778,-but without effect. They were published towards the close of that year, in a pamphlet form, but were never recorded in the Secretary's office. No records appear to have been made in that office until the year 1779; when the Constitution, and the laws of that year were re- corded. The laws of 1778, were probably de- clared to be temporary-as were the laws of sev- eral succeeding years-and ceased to have effect before any records were made. Some of them, in- deed, were, obviously, designed to answer a tem- porary purpose only,-such as the acts, enacting certain laws 'as they stand on the Connecticut law book ;' and all appear, so far as we can learn from the journals of the legislature, to have pos- sessed the character of mere temporary regula- tions, rather than permanent laws. Some of them were probably re-enaeted, in substance, in the year 1779, and incorporated in the general code of that year. These considerations may explain the extraordinary fact that the recording of those laws was purposely omitted. It is indeed a subject of regret that any cause should have been thought sufficient to justify a neglect, by which the first es- say at legislation, by the government of Vermont, has been lost to succeeding generations."
An act for securing the general privileges of the people, and establishing common law and the Constitution, as part of the laws of the State was passed at the February Session of the Assembly 1779, held at Bennington, and was as follows: viz .-
"FORASMUCH as the free fruition of such liber-
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ties and privileges as humanity, civility, and chris- tianity call for, as due to every man, in his place and proportion, without impeachment and in- fringement, hath been, and ever will be, the tran- quillity and stability of churches and common- wealths; and the denial or deprival thereof, the disturbance, if not ruin of both :
"Be it enacted, and it is hereby enacted, by the representatives of the freemen of the State of Ver- mont, in General Assembly met, and by the au- thority of the same, that no man's Ilfe shall be taken away; no man's honor or good name stained; no man's person shall be arrested, re- strained, banished, dismembered, nor any ways punished ; no man shall be deprived of his wife or children; no man's goods or estates shall be taken away from him, nor any ways indamaged, under colour of law, or countenance of authority ; unless it be by virtue of some express law of this State, warranting the same, established by the General Assembly ; or, in case of the defect of such law, in any particular case, by some plain rule, war- ranted by the Word of God.
"That all the people of the American States, within this State, whether they be inhabitants or not, shall enjoy the same justice and law that is general for this State, in all cases proper for the cognizance of the civil authority and courts of ju- dicature, in the same, and that without partiality or delay ; and that no man's person shall be re- strained or imprisoned, by any authority what- ever, before the law hath sentenced him thereto, if he can and will put in sufficient security, bail, or
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mainprize, for his appearance, and good behav- iour, in the mean time; unless it be for capital crimes, contempt in open court, or in such cases wherein some express law doth allow of, or order the same.
"Be it further enacted by the authority afore- said, that common law, as it is generally practiced and understood in the New-England States, be, and is hereby established as the common law of this State.
"Be it further enacted by the authority afore- said, that the constitution of this State, as estab- lished by general convention held at Windsor, July and December, 1777, together with, and agreeable to, such alterations and additions as shall be made in such constitution agreeable to the 44th section in the plan of government, shall be for- ever considered, held, and maintained, as part of the laws of this State."
The last clause of this act that the constitution "shall be forever considered, held, and maintained as a part of, the laws of this State," would seem to be a work of supererogation, as the constitu- tion was the fundamental law of the land. This singular proceeding can only be accounted for from the fact, as we have seen by the former vol- ume of this history, that the constitution had never been submitted to or sanctioned by the peo- ple, but went into operation as it came from the hands of the convention that framed it.
At the said session the Assembly passed a law giving Justices of the Peace jurisdiction to try and determine causes where the matter in demand or
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fine did not exceed ten pounds, or the corporal punishment did not exceed ten lashes; and award sentence where the title of land was not con- cerned. If the matter in demand, fine or pun- ishment, exceeded what is stated above, the county court had exclusive jurisdiction. The in- fliction of corporal punishment was the practice of barbarous ages. The fact that that mode of pun- ishment has gone out of date is an indication that the world is rising into a higher state of civiliza- tion. At the February session 1779, the General Assembly constituted and established one Supe- rior Court for the State, consisting of one Chief Judge and four other judges. This was at a time when there were but two Counties in the State ; and for that year the Superior Courts were to be held at Westminster and Newbury in the County of Cumberland and at Bennington and Rutland in the County of Bennington.
The statute was quite severe against persons for breaking open jails and rescuing prisoners. The statute on this subject was as follows : viz.,
"That if any person, or persons, shall impede or hinder any officer, judicial or executive, civil or military, under the authority of this State, in the execution of his office; on conviction thereof be- fore the superior court of this State, shall be whipped on the naked back, not exceeding one hundred lashes for the first offence, and pay all costs and damages that shall accrue from such disorder, beside cost of prosecution : and for want of estate to pay said costs, damages, &c. the of- fender may be bound in service to any subject of
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this State, for such time as shall be judged by said court to be sufficient to pay said costs, damages, &c. And said court are hereby authorized to bind said delinquent.
"Be it further enacted, by the authority aforesaid, that if any person shall be guilty of a second offence of the like nature, and shall be con- victed thereof, he shall be branded with the letter C on the forehead, and shall be whipped on the naked back, not exceeding one hundred lashes; to be repeated every time of conviction.
"Be it further enacted, by the authority afore- said, that if any person or persons, either directly or indirectly, shall break open, or aid or assist in breaking open, any goal, or place of confinement, wherein any prisoner or prisoners may be confined by the authority of this State, on conviction thereof, shall be whipped on the naked back, not exceeding one hundred lashes, and be branded on the forehead with the letter B, and pay a fine, not exceeding one hundred pounds, and all costs and damages that may accrue from such disorder, to- gether with cost of prosecution; and for want of estate to pay said costs and damages, the offender may be bound in service as aforesaid.
"That the superior court, before the dismission of such delinquent, may call on him to give bonds, in surety, not exceeding three thousand pounds, for his good behavior: and in case such delinquent shall refuse to give such surety, said court are hereby empowered to confine such delinquent in any of the goals in this State."
In the early days of Vermont it was not safe to
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be idle, as it was enacted by the General Assembly in February, 1779, "that the selectmen for the time being, in the several towns in this State, shall from time to time, diligently inspect the af- fairs and management of all persons in their town, whether householders or others; and if they shall find any person or persons that are likely to be reduced to want, by idleness, misman- agement or bad husbandry, that then such select- men may appoint an overseer to advise, direct, and order such person in the management of their business for such a time or times as they shall think proper; certificate of which appointment shall be set on the sign post, and a copy thereof lodged in the town clerk's office, by such select- men forthwith; and thereupon no such person, while under such appointment, shall be able to make any bargain, or contract without the con- sent of such overseer, that shall be valid in law." There were further provisions made by the act that if the orders of the overseer were not heeded, the selectmen after investigation and hearing duly had were to take care of the delinquent's family and property.
The constant danger to which the people of the State were exposed from foes without and dis- loyal persons within the State required that sev- ral regiments of well drilled militia should be ready for service in defence of the State: There- fore it was provided by an act of February 1779, that the Governor should be captain general and commander-in-chief and the deputy governor, for the time being, should be major general, of and
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over all the military forces within the State. The State was divided into five districts, and one reg- iment to be raised in each district, to be made up from the military companies of the several towns in the district. It was further provided that all male persons, from sixteen years of age to fifty should bear arms and duly attend all musters and military exercises where they belonged, "except ministers of the Gospel, councellors, justices of the peace, the secretary, judges of probate and supe- rior and inferior courts, the president, tutors, and students at collegiate schools, masters of arts, al- lowed physicians and surgeons, representatives or deputies, for the time being, school masters, attor- neys at law, one miller to each grist-mill, sheriffs, and constables, for the time being, constant jury- men, tanners who make it their constant business, lamed persons, or others disabled in body."
It was also provided, "That every listed soldier and other householder, shall always be provided with, and have in constant readiness, a well fixed firelock, the barrel not less than three feet and a half long, or other good firearms, to the satisfac- tion of the commissioned officers of the company to which he doth belong, or in the limits of which he dwells; a good sword, cutlass, tomahawk or bayonet, a worm, and priming-wire fit for each gun; a cartouch-box, or powder-horn and bullet- pouch; one pound of good powder; four pounds of bullets fit for his gun, and six good flints." And a penalty was provided if they failed to keep the same.
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