USA > Vermont > Early history of Vermont, Vol. III > Part 10
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acquisition. Permit us then to tender you, sir, our warmest thanks for the conspicuous part you have taken in this important arrangement.
"We gratefully contemplate those humane and benevolent measures which civilize our once savage neighbors, and learn them to exchange their hos- tile weapons for the implements of argriculture and household manufacture.
"We recognize with sentiments of esteem, that vigilance and parental care which has enlarged our territory by a negotiation with one of the friendly tribes of Indians.
"From knowing that our maritime force is di- minished, and that our trade is still protected, we obtain imposing proof, that vigilance and econ- omy go hand in hand in the management of our governmental affairs.
"The flourishing state of our treasury demon- strates our growing greatness, and must convince every good citizen that the incident and vilifying expressions too frequently uttered through the medium of the press against the administration of our government, must finally, with equal certainty as justice, revert on the authors.
"Your advice to the House of Representatives respecting our conduct towards the contending powers of Europe, merits our highest approba- tion.
"From our own feelings, as well as from the general knowledge we possess of the sentiments of our constituents, you may be assured that the hardy sons of Vermont, though earnestly engaged in their peaceable pursuits, will be ready to fly, on
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the call of their country, at the risk of their lives, their fortunes and domestic felicity, to maintain their rights as an independent nation-preferring every consequence to insult and habitual wrong.
"Permit us to assure you of our most earnest wish that every possible happiness may attend you through life, and that you may finally receive the plaudit of the great Judge of all."
On Nov. 10, 1798, the Legislature of Kentucky adopted resolutions that embodied the doctrine of nullification that found their logical and final out- come in the gigantic rebellion of 1861. These resolutions were condemned by several of the States, whereupon on Nov. 14, 1799, Kentucky re- affirmed its doctrine of State rights in the follow- ing language. "That the several States that formed the Constitution being sovereign and inde- pendent, have the unquestionable right to judge of the infraction; and that a nullification by those sovereignties of all unauthorized acts done under the color of that instrument, is the rightful rem- edy. The resolutions adopted by Kentucky on Nov. 10, 1798, were drawn by Thomas Jeffer- son and sent to Vermont for the consideration and adoption by the Legislature, one of which was as follows :
"Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their gen- eral government; but that, by compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegat-
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ed to that government certain definite powers, re- serving, each State to itself, the residuary mass of right to their own self-government ; and, that whensoever the general government assumes undelegated powers, its acts are unauthorative, void, and of no force; that to this compact each State acceded as a State, and is an integral party; that this gov- ernment, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but, that as in all other cases of compact among parties having no com- mon judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
The answer of Vermont to the nullification res- olutions were sound in principle and have been adhered to by the national government ever since, and are as follows: viz.,
" To the Legislature of the State of Kentucky.
"We have maturely considered your resolutions of November 10th, 1798. As you invite our opin- ion, you will not blame us for giving it without disguise, and with decision. In your first resolu- tion, you observe, in substance, 'That the States constituted the general government, and that each State as party to the compact, has an equal right to judge for itself as well of infractions of the Constitution, as of the mode and measure of re- dress.' This cannot be true. The old confedera- tion, it is true, was formed by the State Legisla-
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ture, but the present Constitution of the United States was derived from a higher authority. The people of the United States formed the federal Con- stitution, and not the State, or their Legislatures. And although each State is authorized to propose amendments, yet there is a wide difference between proposing amendments to the Constitution, and assuming, or inviting, a power to dictate or con- control the general government.
"In your second resolution, you certainly mis- construe and misapply an amendment to the Fed- eral Constitution, which, if your construction be true, does not surely warrant the conclusion that as a State you have a right to declare any act of the General Government, which you shall deem unconstitutional, null and void. Indeed, you act- ually do declare two acts of the Congress of the United States null and void. If, as a State, you have a right to declare two acts of the Congress of the United States unconstitutional and therefore void, you have an equal right to declare all their acts unconstitutional. Suppose each Legislature possesses the power you contend for, each Legisla- ture would have the right to cause all the acts of Congress to pass in view before them, and reject or approve at their discretion, and the consequences would be, that the government of the Union, falsely called General, might operate partially in some States, and cease to operate in others. Would not this defeat the grand design of our Union ?"
The State of Virginia also sent state-rights resolutions drawn by James Madison, to be adopt- ed by the Vermont Legislature, though not quite
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so rank with the sentiment of nullification as those of Kentucky, but still embodied dangerous principles and they were replied to as follows :
"Resolved, That the General Assembly of the State of Vermont do highly disapprove of the resolutions of the State of Virginia, as being un- constitutional in their nature, and dangerous in their tendency. It belongs not to State Legis- latures to decide on the constitutionality of laws made by the general government; this power be- ing exclusively vested in the Judiciary Courts of the Union."
Thus it may be seen that Vermont has ever taken a consistent, safe and conservative course ever since her admission into the Union, and has ' always stood firm in upholding the true principles of the Constitution as sustained by the courts and now recognized as sound throughout the Nation.
In October 1805, the Legislature refused to con- fer upon one Charles Miller, a subject of his Bri- tannic Majesty the rights of a citizen of the State to enable him to hold a certain parcel of real estate in this State, when he did not intend to become a resident citizen of the State or of any of the United States, and had not brought himself within the provisions of the law of Congress on the subject of naturalization.
CHAPTER VI.
INCIDENTS, LEGISLATION, EMBARGO, SMUGGLING AND INTERNAL AFFAIRS OF VERMONT FROM 1808 TO 1836.
In 1808, there was a matter of considerable magnitude that arose growing out of an attempt in the general government to enforce the "land embargo" law, of March 12, 1808. It was openly declared, especially by smugglers, that the inhabi- tants on Lake Champlain would never submit to enforce that law. On Aug. 3, 1808, a party of twelve of the Vermont militia had captured a notorious smuggling vessel, called the Black Snake, then moored in Winooski river, and as they were taking it down the river to the lake, the smugglers frequently fired upon them, killing Elias Drake of Clarendon and Asa Marsh of Rut- land and wounding Lieutenant Daniel Farrington of Brandon. A murderous wall-piece, charged with fifteen bullets, slugs, and buck-shot was dis- charged among them. Jonathan Ormsby of Bur- lington who joined the government party to aid in arresting the murderers was killed as was Asa Marsh. The smugglers were all seized but two who then escaped, but afterwards were arrested.
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On Aug. 23, 1808, a special term of court was held; and at that time the grand jury returned true bills against Samuel I. Mott of Alburgh, William Noaks, Slocum Clark and Truman Mud- gett of Highgate, Cyrus B. Dean and Josiah Pease of Swanton, David Sheffield of Colchester, and Francis Ledyard of Milton. These men were tried for the crime charged against them. Mott and Dean were convicted of murder; Dean was sen- tenced to be hung on Oct. 28, 180S, but his sen- tence was respited till the 11th day of November 1808, when the sentence was carried into execution at Burlington. Sheffield and Ledyard were also convicted of the crime charged against them. Mott and Sheffield were granted new trials, both of whom with Ledyard were convicted of man- slaughter at the January term of the court 1809. These three men were sentenced to stand one hour in the pillory, be confined ten years in the State prison, and pay cost of prosecution, and in addi- tion to those penalties, Mott and Sheffield received fifty lashes. The three were pardoned by the Gov- ernor: Ledyard, Nov. 12, 1811; Sheffield, Nov. 4, 1815; and Mott Oct. 15, 1817. The sentiment of a large majority of the people of the State of Ver- mont were against the national embargo law as it was oppressive and worked against the interests of Vermont, and, therefore, the people of Vermont were not enthusiastic for its enforcement and gave lukewarm obedience to it. At the special term of the Supreme Court, held in January 1809, at Bur- lington, the grand jury published an address to the freemen of Chittenden County, in which they
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declared that, beyond the Black Snake affair, "in which strangers were principally the actors, we view with satisfaction and admiration, the loyalty and patience of our fellow citizens, and that the charge of Insurrection and Rebellion, lately exhibited against them, are vile aspersions against the honor and the dignity of this county." Evidently the jury did not favor the President's policy of the national government respecting the embargo act. It is not the purpose of the writer at this time to go into a full consideration of the embargo act and the policy of the national gov- ernment respecting it, but it will be further consid- ered when we come to consider the causes of the war of 1812, in Chapter VII. Governor Tichenor in his speech to the Council and House of Represen- tatives in 1SOS, well voiced the sentiment of Ver- mont when he said :-
"The business which our constituents have con- stitutionally assigned to their General Assembly, embracing the civil and political interests of the State, is the great object which will necessarily engage your attention. It cannot be concealed but these have been conisder- ably affected by a late law of the United States and the measures pursued to enforce it. Among a people accustomed to honest industry, and under a government which had permitted them freely to dispose of the fruit of their labor, as a natural and unalienable right, it was to be feared there might exist a strong disposition to evade its restrictions. Nothing but an appeal to their patriotism, and strong conviction of the
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utility of the measure, could enforce obedience to a law which in its operation blighted the best hopes of the laborer and destroyed every incentive to useful and honorable enterprise. While therefore we regret the stain upon the character of a re- spectable portion of our citizens, in consequence of the conduct of a few, who had violated a law of the government, suspending our commerce by an embargo without limitation, we sincerely regret that the law was not accompanied with that evi- dence of national necessity or utility which at once would have commanded obedience and respect. We also must as sincerely deplore that, instead of an application in the first instance to the civil authority, in common with my fellow citizens, the evils which result from that law, I cannot but hope that the wisdom of the national Legislature will induce an early repeal of the same. If however this should not be deemed wise or expedient, I must strongly enjoin the necessity of a quiet submis- sion to the privations and inconveniences that may be experienced, until we are relieved in a constitu- tional way."
On Nov. 3, 18OS, the United States Circuit Court commenced a special session at Burlington, held by Brockholst Livingston and Elijah Paine, Judges, when Frederick Job and John Hoxie were tried for high treason, in levying war against the United States, but they were speedily acquitted by the jury.
The following statement or confession was made by Benjamin Whitcomb in his last sickness, to David Goodall, Esq. of St. Johnsbury, asserting
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that he, during the war between the Americans and the British, on orders from Washington to shoot a British General in retaliation for the wan- ton massacre of Americans by British Indians and their officers, went from Ticonderoga into Canada and shot Gen. Gordon, and received a Major's commission therefor. Washington characterized the shooting of Gordon as assassination. It was stated in Thompson's Vermont Gazetteer, that Whitcomb shot General Gordon in July 1776, and took his sword and watch, but in a letter of June 12, 1777, found in Anbury's Travels, a British account in detail was given of the affair, and in that account no robbery was charged against Whitcomb, and no responsibility against any American officer. The General in command at Ticonderoga, expressed his diapprobation of the act in the highest terms, and Whitcomb to effect a reconciliation, promised to capture a British offi- cer; he captured a friend of Anbury at the very spot where Gordon had been shot.
A very important affair to the public and unfor- tunate for the individual concerned, occurred at the Legislature. Abel Spencer a member of the Legis- lature from Rutland, and a former speaker of the House, was charged with highly dishonorable con- duct. A committee was appointed to investigate the charges against him; he was found guilty by the committee of feloniously taking ninety-three dollars in bank bills, the property of three other members of the House. He was by a unanimous vote of the House expelled from his seat in the Legislature.
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In 1804, a resolution was sent from the House to the Council, stating that " Whereas the Honor- able Judges of the Supreme Court have been im- plicated by a member of the House for taking and receiving fees and perquisites in certain cases which are not allowed by law. Therefore, Resolved, That, a committee of three from this House be appointed to inquire and ascertain the fees and perquisites" that the judges had taken and re- ceived for the time mentioned in the resolution and report, but the Council did not concur. The result of the inquiry in the House was to relieve the judges from any blame in the matter of fees in the opinion of the committee. In 1805, the investiga- tion was renewed and it resulted in a resolution declaring the fees complained of were taken by the judges with upright views, and that they are by law made judges of what is a reasonable and fair construction of the fee bill.
On Oct. 12, 1805, Gov. Tichenor transmitted to the speaker of the House resolutions of Kentucky which were the same in substance that had been transmitted to the speaker by Pennsylvania, pro- posing to amend the Constitution of the United States so as to exclude the Federal Courts from jurisdiction in cases between a State and citizens of another State; between citizens of different States; between citizens of the same State claim- ing lands under grant of different States; and be- tween a State or the citizens thereof, and foreign States, citizens or subjects. The position of Ken- tucky towards Virginia was very much the same as that of Vermont had been with New York be-
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fore the settlement of the controversy in 1790, and that the Legislators of Vermont, therefore, under- stood the grievance of Kentucky and sympathized with her people. The Legislature postponed the matter till the session of 1806, when a favor- able report was made and resolutions adopted in- structing the Vermont Representatives in Congress to use their best endeavors to procure such an amendment to the Constitution as will confine the judiciary power of the courts of the United States to cases in law and equity arising under the Con- stitution and laws of the United States and treaties made or that shall be made under their authority; cases affecting ambassadors and other public min- isters and consuls; cases of admiralty and mari- time jurisdiction; controversies to which the I'nited States shall be a party, and controversies between two or more States. The Legislature in adopting the resolutions made the following dec- laration.
"It is the opinion of this Legislature, that the good people of this State experience nearly all the inconveniences and evils expressed in the resolu- tions from the State of Kentucky; and that two independent courts, having no corrective over each other and holding jurisdiction over the same sub- ject in controversy, cannot continue to exist in the same State without engendering seeds of jealousy and ill will, naturally tending to establish differ- ent and clashing rules of decision, and also form- ing two rallying points and erecting two stand- ards for the resort of political partizans, and lay- ing a foundation for that discord which may
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eventually terminate in the dissolution of our happy Union; which, together with the great ex- pense of the service of writs returnable at so great distance, and of witnesses attending courts, (no depositions being taken within one hundred miles of court,) and the fees of counsel above what is required in our State courts, induce this Legisla- ture fully to concur with the Legislature of the State of Kentucky."
A sufficient number of the States did not ratify all of the proposed amendments and no change was ever made in the Constitution as proposed, except as provided in Article XI of the amend- ments to the Constitution: That article is as fol- lows: viz., "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."
On Jan. 13, 1808, the Legislature of Virginia adopted a resolution proposing an amendment to the Constitution of the United States, so, "that the Senators in Congress of the United States may be removed from office by the vote of the majority of the whole number of the members of the respec- tive Legislatures by which the said Senators have been or may be appointed." This proposal was rejected in 1809; the Assembly declared as their opinion that the Senators did not hold their office during a period of sufficent duration to render such amendment necessary. At the October ses- sion of 1809, a proposition came from Pennsylva-
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nia to amend the Constitution, so "that an impar- tial tribunal may be established to determine dis- putes between the General and State Governments." The Legislature rejected this proposal, giving as reasons for its action, that such disputes are not so frequent, nor of sufficient magnitude to render such a tribunal necessary.
In 1811, the Congress of the United States pro- posed the following amendment to the Constitu- tion of the United States: viz., "If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without consent of Congress, accept and retain any present, pension, office or any emolument what- ever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them or either of them." This proposal was presented to the General Assembly by Governor Galusha on Oct. 17, 1811, and acted upon by the Assembly on October 22d of that year, and was agreed to, ratified and con- firmed on the part of the State.
In 1807, the General Assembly, by their com- mittee drafted an address to President Jefferson urging him to stand as a candidate for the Presi- dency of the United States for a third term. The federalists made no opposition to this address, and it was adopted. President Jefferson on Dec. 10, 1807, made the following reply :
"To the Legislature of Vermont .- I received in due season the address of the Legislature of Ver- mont, hearing date the 5th of November 1806, in
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which, with their approbation of the general course of my administration, they were so good as to express their desire that I would consent to be proposed again, to the public voice, on the expira- tion of my present term of office. Entertaining, as I do, for the Legislature of Vermont those senti- ments of high respect which would have prompted an immediate answer, I was certain, nevertheless, they would approve a delay which had for its ob- ject to avoid a premature agitation of the public mind, on a subject so interesting as the election of a Chief Magistrate.
"That I should lay down my charge at a proper period, is as much a duty as to have borne it faith- fully. If some termination to the services of a Chief Magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will, in fact, become for life; and history shows how easily that degenerates into an inheri- tance. Believing that a representative govern- ment, responsible at short periods of election, is that which produces the greatest sum of happiness to mankind, I feel it a duty to do no act which shall essentially impair that principle ; and I should unwillingly be the person who, disregarding the sound precedent set by an illustrious predecessor, should furnish the first example of prolongation beyond the second term of office.
"Truth, also, requires me to add, that I am sensible of that decline which advancing years brings on; and feeling their physical, I ought not to doubt their mental effect. Happy if I am the first to perceive and obey this admonition of
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nature, and to solicit a retreat from cares too great for the wearied faculties of age.
"For the approbation which the Legislature of Vermont has been pleased to express of the princi- ples and measures pursued in the management of their affairs, I am sincerely thankful; and should I be so fortunate as to carry into retirement the equal approbation and good will of my fellow- citizens generally, it will be the comfort of my future days, and will close a service of forty years with the only reward it ever wished."
By an act of the Legislature of New York passed June 8, 1812, and an act of the Legislature of Ver- mont passed November 6th, 1812, three Commis- sioners from each of the two States were appoint- ed and authorized to designate and mark a perma- nent boundary line between the two States. The Commissioners on the part of New York were Smith Thompson, Simeon DeWitt, and George Tibbits, and on the part of Vermont, Joseph Bee- man, Henry Olin and Joel Pratt, 2nd. In 1813 and 1814, the Commissioners accomplished the work assigned them and made their report under their hands and seals bearing date October 25, 1814, which is too lengthy to insert here.
On October 25, 1814, the Governor put before the Council a letter from the Secretary of War of the United States and one from the Assistant Ad- . jutant General of the Army of the United States, and in the latter there appeared the following clause, "It is the wish of the Government that two thousand of the militia of your State should be drafted and organized for immediate service, sub-
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ject to the call, when necessary, of the command- ing officer in this quarter." The Governor there- upon proposed to the Council for their considera- tion and advice, the following: "can the militia, when called into actual service, be legally com- manded by any officers, except such as are ap- pointed by this State?" The Council appointed a committee to take the question into consideration and make report. The Committee in their report to the Governor, after referring to Art. 1, Sec. S, and Art. II., Sec. 2, of the Constitution of the United States, said, "The President may undoubt- edly command the army and navy of the United States by officers lawfully commissioned by him- self; but he cannot so command the militia of the States, when called into actual service of the Unit- ed States, for the appointment of their officers is a right reserved to the States respectively. If, there- fore, the President would command the militia when in actual service of the United States, he must do it in person, or exercise his command ov- er them by officers appointed by the State, and not by officers appointed by the President. As well might the officers of the militia, appointed by this State, when in the actual service of the United States, claim the right to command the ar- my of the United States, as the officers of the ar- my of the United States to command the militia. There is no constitutional provision for either to claim such right or exercise such command."
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