Gazetteer of Washington County, Vt., 1783-1889, Part 6

Author: Child, Hamilton, 1836-, comp; Adams, William, fl. 1893, ed
Publication date: 1889
Publisher: Syracuse, N. Y., The Syracuse journal company, printers
Number of Pages: 898

USA > Vermont > Washington County > Gazetteer of Washington County, Vt., 1783-1889 > Part 6

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

The school-house in the shadow of Camel's Hump, where George F. Ed- munds and Matt Carpenter had their night contest, when they were students, before a justice jury, was a sample " temple of justice," in the like of which many of the best lawyers say they got their best training. These justice jury trials are pretty much gone by-and the habit of having them was better for the training of lawyers than for the business progress of the communities ; but all is not lost, for the justice courts-and the Supreme Court for that

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matter-are still "on wheels," and shed more or less benignant judgments here and there as the convenience of the plaintiff's lawyer and the supposed convenience of the parties and witnesses dictate.

There are compensations in other directions, too, in the changes that time has made. When Judge Poland, who was in the legislature ten years ago,. had procured the passage of a law providing for the appointment of " masters to find and report the facts" in chancery cases, Judge Peck gave him a Scotch blessing for having " destroyed the Court of Chancery-the growth of and the product of the wisdom of hundreds of years." Judge Poland's law seems to work well, however, as his new pauper law may if the Supreme Court's period of incubation over its interpretation is ever determined- and besides we have efforts toward an assumption of chancery powers in unexpected quarters-the late equitable judgment of a Washington county justice of the peace for the plaintiff to "recover eighty-five dollars and a gigg " having been within a few days equalled if not excelled by a Rutland County Court jury, which in a flowage case added to their ver- dict for damages an order that the defendant should remove from his dam " within ten days " the boards causing the flowage.

But this hardly describes our Montpelier court-houses ; and indeed, were it not for one of our profession whose memory goes back to its days, I could hardly describe the first one at all. The committee at first appointed to build a court-house do not seem to have made progress, for November 9, 1812, the use of the hall of the State House was granted for the holding of courts for the year ensuing. And upon such grants, or without them, the courts for this county were held, till the latter part of 1818, in the old State House. which, first occupied in 1808, was upon the completion of the second State House, about 1837, moved away and its timbers were bought by A. A. Sweet,. and many of them used by him in the construction of the house sometime known as the E. M. Brown house, now the property of the estate of Capt .. A. A. Mead.

November 6, 1817, Chapin Keith, George Worthington, and John Peck were- appointed a committee to build a court-house, and on the 18th of that month they contracted with Salvin Collins and David Herrington for its erection. The contractors were to build and did build " near the northwest corner of the State House common." That common at that time did not extend as far west as now, so that the old court-house was nearly in front of the present State House. At that time the turnpike to Burlington ran along pretty near where the State House now is, and State street, at least below the Pavilion, did not exist. The court-house was thirty-four feet wide and forty-eight feet long, and there were by the contract to be "three door steps twelve feet long and hewed of the Barre ledge stones." Our Barre neighbors-they of the booming town of Vermont-can see that even then their product was- prized, but think of calling the now famous " Barre granite " just "the Barre; ledge stones !"

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The court-room was 33 by 34 feet, "arched above," and " 21 feet between joints." There were four "jury-rooms " in the front of the building, two on the first and two on the second floor; back of these was the court-room reaching to the roof. There were in the court-room " nine windows of forty lights each," and in other parts of the house "seventeen windows of twenty- four lights each "-all the lights to be of "good 8 by 10 glass." The building was to be completed September 1, 1818, and was occupied the fall of that year, though the contractors and the committee had a falling out about the amount due, as it was claimed and so decided that in some points they had failed to build according to the contract, though in others they had builded better than required by its terms.

This court-house remained where erected till about 1837, when it was moved to where it now stands. It continued to be used as a court-house till the fall of 1843, after which it was for a time used by the Catholics as a church, and of late years has been the residence of the priest in charge of St. Augustine's church.

The first trial for a capital crime ever had in this county was in the days of this old wooden court-house, but was not held in it, but in the hall of the old State House. This trial began April 21, 1836, and was that of Michael Moricey (or Morrisey) for the murder of John Corrigan, at Montplier, April 2, 1836. The crime was committed at Moricey's house near the lower end of Barre street, and was by hitting Corrigan with a club so that he died in a few hours from the effects of the blow. The trial was concluded the day after it began, and the accused was found guilty of manslaughter and sen- tenced to ten years imprisonment. Paul Dillingham was state's attorney, and Miller and Upham were counsel for the respondent.

In 1843 a new brick court-house was erected, at a cost of about $3,500, on Elm street and partly on the site of the present court-house. At the first. term of court held in the new building it caught fire and was burned about 3 o'clock in the morning of Tuesday, November 28, 1843. The files in pending cases were burned and one volume of old records. Court was con- tinued in Masonic hall, and nobody seemed to regret the loss of the house, as it was very unsatisfactory in both location and construction.

The property on the corner of State and Elm streets was procured by sub- scription, and when a new court-house was erected it was made to front State street, and proved a very satisfactory building. The judge's desk was in the west part of the court-room and had a very resonant top which Judge Peck now and then used to strike with vigor. That desk top was, as Judge Peck used to say some old lawyer told him the statement of a legal proposi- tion ought to be, "as hard and dry as a pine knot." It was this he struck when he commanded Col. Randall to " stop !"-and the same that resounded to his blow when he roared out at the witness Rockwell, "answer his ·

questions or I'll commit you to jail," and Rockwell shrunk down in his chair saying, " Lord, have mercy !" The jury box was in the northwest corner,

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the jury facing the south and so unable to see the "Goddess on the State House " that caught the eye of the excited advocate who was painting the heartlessness of the persecutor of his client ; waving his hand toward the window from which he but not the jury could see the statue, the climax came, " heartless as the brozen image that now stands before you."

In 1878 an addition to this court-house was authorized, and in 1879 it was built and the old part of the house remodeled at a cost of $10,000. The court-room then obtained was never surpassed in acoustic properties. May 25, 1880, the court-house was burned, but the walls left standing. The same year it was rebuilt in its present shape, the building now being twenty- two feet longer than before the addition made in 1879.

The Supreme Court has, beginning with May, 1887, held its term for Washington county and its General Term in the court-room of the library annex to the State House, which was built in 1885-86.

There is now building just west of the county court-house a large and elegant postoffice and court-house for the United States government-a structure that will be largely a monument to the untiring industry of Senator Morrill, and to the great esteem in which he is held by his fellow legislators in the national capital.

THE EARLY COURTS.

From the organization of the county till the third Tuesday of October, 1825, the Supreme Court consisted of one chief judge and two assistant judges, chosen by the legislature each year. This court had only appellate . jurisdiction in civil cases (except where the state was a party) ; in criminal cases it had both appellate and original jurisdiction, the latter in the graver crimes, such as treason, murder, arson, rape, burglary, robbery, perjury, adul- tery, forgery, horse stealing, counterfeiting, &c., &c. The judges of this court did not, till 1825, preside in County Court.

The county courts, up to October, 1825, consisted of one chief judge and two assistants, chosen yearly by the legislature-from 1825 the present law, by which a judge of the Supreme Court presides in County Court, has been in force, except during the Circuit Court experiment, which lasted from 1850 to 1857. The Circuit Court was helped out of existence, or into it, I have been told, by Stephen Herrick, of Middlesex, who had a. lawsuit about a railroad contract and was persistent in litigation as in all other things. The County Court, as it existed at the organization of the county, had cognizance of such criminal and civil matters as was not given to the Supreme Court or justices of the peace. The jurisdiction of justices of the peace was limited in criminal cases to those where the fine did not exceed seven dollars, and where the corporal punishment did not exceed ten stripes, and in civil cases (except for slander, replevin, trespass on the freehold, and some others) where the matter was less than thirty three dollars, and in some cases (on

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note, settled account, etc.) up to fifty-three dollars. The pillory and whip- ping were, it is true, not used as late as 1811, but they were on the statute book, if not as usable punishments, yet as jurisdictional lines. They went out of use by the act of November 9, 1808, which enacted that whenever a con- viction should be had for a crime in which part of the punishment was pillory or whipping, the courts " may in their discretion dispense with the pillory and whipping, and in case of crimes hereafter committed against the statute last aforesaid, said court shall omit the pillory and whipping." The county courts were entirely distinct from the supreme courts.

When the county was organized John Marshall was chief justice of the United States Supreme Court. Joseph Story was a member of that court, and Elijah Paine was United States district judge for the district of Ver- mont. Royal Tyler, who had written a novel and a drama, was chief judge of the Vermont Supreme Court, and his assistants were Theophilus Harring- ton (who would not hold one man could own another without the " produc- tion of a bill of sale from Almighty God "), and David Fay, who was the youngest son of Stephen Fay, and a brother of Jonas and Joseph Fay, and who himself, when fifteen years old, served as a fifer in Capt. Robinson's company at the battle of Bennington. Nathaniel Chipman, Asa Aldis, Rich- ard Skinner, Dudley Chase, C. P. Van Ness, and Richard Skinner again followed in pretty quick succession as chief judges before the court was in- creased to four judges in 1825, and to five judges in 1828. Within twenty years after the organization of this county three members of its bar had been upon the Supreme Court bench-James Fisk, of Barre, and Samuel Prentiss and Nicholas Baylies, of Montpelier,

THE FIRST TERM.

Monday, December 2, 1811, the first term of County Court for Washington county was convened. Ezra Butler, of Waterbury, afterwards governor, was chief judge, and his assistants were Salvin Collins and Bradford Kinne. Clark Stevens, the good Quaker of Montpelier, had been elected judge by the legislature of 1811, but he did not wish to be a judge, and Mr. Collins was elected upon his declining to accept the office. With Judge Butler, however, it was not a case of "nolo episcopari," for he was a Baptist clergyman, and was willing to overlook and judge things both temporal and eternal.

The jurors summoned were Richard Kneeland, Chester Marshall, and Joseph Darling, of Waterbury ; John L. Kenedy, Adonijah Atherton, and Jason Crossett, of Duxbury ; Nathan Benton, Jr., Ebenezer Mayo, and Elia- kim Hawkes, of Moretown ; Samuel Mann, Samuel Montague, and Lovel Warren, of Middlesex; and Joseph Churchill, Simeon Burke, and Reuben Wells, of Stowe. The first jury trial was on the second day of the term, and was in the case of Jonathan F. Gibson vs. Charles Huntoon, and the jury was composed of the above named jurors, with the exception of Kenedy, who

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was absent, and Burke and Wells, who were excused. Timothy Merrill was for the plaintiff, and Prentiss & Vail for the defendant. The jury did not agree and the " papers were taken back," and the case continued.

The number of cases on the " old docket " was 138, and the new entries were 140. The old docket was made up of cases sent from Orange, Caledo- nia, and Chittenden counties. There were eight cases on the old docket and five cases of the new entries tried by jury. There were agreements in all the other cases tried by jury ; these were on the old docket : No. 8, Prentiss & Vail and Dudley Chase for plaintiff, and Merrill and Cyrus Ware for de- fendant, verdict for plaintiff $41.37 and costs ($40) ; No. 20, Denison Smith for plaintiff, and Dudley Chase for defendant, verdict for defendant to recover his costs ($35.39); No. 65, Nicholas Baylies for plaintiff, and Bulkeley & Loomis for defendant, verdict for plaintiff for $198.17 and costs ($41.96); No. 70, Prentiss & Vail for plaintiff, and Dudley Chase for defendent, verdict for plaintiff for $139.00 and costs ($42.62) ; No. 74, Prentiss & Vail for plaintiff, and Bulkeley & Loomis for defendant, verdict for plaintiff for $76.58 and costs ($30.87) ; No. 87, Dan Carpenter for plaintiff, and Bulkeley & Loomis for defendant, verdict for plaintiff for $12.50 and costs ($10.33) ; No. 57, Bulkeley & Loomis for plaintiff, and Prentiss & Vail for defendant, verdict for plaintiff for $2,573.42 and costs ($30.42). The new entry cases tried by jury were No. 17, Prentiss & Vail for plaintiff, and Cyrus Ware for defendant, verdict for defendant to recover his costs ($15.90); No. 28, Cyrus Ware for plaintiff, and Prentiss & Vail for defendant, verdict for plaintiff for $10.63 and costs ($29.90); No. 71, Bulkeley & Loomis for plaintiff, and Prentiss & Vail for defendant, verdict for plaintiff for $56.00 damages and defendant appealed ; No. 80, Bulkeley & Loomis for plaintiff, and Cyrus Ware for de- fendant, verdict for plaintiff for $40.00 damages and defendant appealed ; and No. 86, Bulkeley & Loomis for plaintiff, and Prentiss & Vail for defend- ant, verdict for $47.37 and costs ($20.60).

Of the 138 cases on the old docket there appear, by the docket on the plaintiffs' side, to have been entered forty-nine by Dan Carpenter, of Waterbury ; one by Dan Carpenter and G. Robinson; (I find the name of no such lawyer as G. Robinson in any county in 1811-per- haps he was "empowered " by the plaintiff under the 23d section of the judiciary act of 1797, and had "filed his power with the clerk," in which case he could appear for a party, doubtless " without the bar," as will be seen in Judge Kinne's case hereafter.) twenty by Denison Smith, of Barre ; three by Denison Smith and Bulkeley & Loomis ; twenty-six by Bulke- ley & Loomis ; eleven by Prentiss & Vail ; five by T. Merrill; one by S. Prentiss, Jr .; three by Nicholas Baylies ; three by Cyrus Ware; and other scattering names from other counties including Dudley Chase, of Randolph, Horace Everett, of Windsor, Roger G. Bulkeley, of Williamstown, Moses Chase, of Bradford, Keyes, Foot, and Adams, of Burlington, and some others. The principal entries for defendants were Bulkeley & Loomis in twenty-eight

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cases, Prentiss & Vail in twenty-one cases, Dan Carpenter in seven cases, T. Merrill in eight cases, Denison Smith in five cases, C. Adams in four cases, Dudley Chase in four cases, and C. P. Van Ness in two cases.

Of the 140 cases on the new docket-or the " new entries "-Dan Car- penter entered twenty-one, Buikeley & Loomis fifty-one, Prentiss & Vail fif- teen, Denison Smith sixteen, Merrill nine, N. Baylies thirteen, Cyrus Ware two, and other scattering entries. Prentiss & Vail appeared for the defense in forty-seven cases, Merrill in sixteen cases, Bulkeley & Loomis in ten cases, Cyrus Ware in nine cases, Denison Smith ir. five cases, and Dan Carpenter in one case, with other scattering entries of other attorneys.

The jury this term were paid $160.58, and talesmen received $4.50. Judge Butler received for his labors for the term $104.90, Judge Collins and Judge Kinne $83.93 each. The state received cash for entries $65.25, cash for jury fees $90.00, cash for reviews and appeals $33.50, and cash for licenses $72.50. The June term, 1812, was not as costly, the jury receiv- ing then $ 105.90, Judge Butler $ 101.93, and Judges Collins and Kinne $81.54 each. The first term had about two weeks' work in it, the court sitting on the 2d, 3d, and 4th of December, then adjourning to the 16th and sitting till the 28th. Imprisonment for debt continued till 1839, and at the first term the entry of "defendant committed " is found on the docket in seven cases.

The first year's licenses "to keep a tavern " were to Ziba Hall, Lovel Kelton, Thomas Davis, Obadiah Eaton, Sally Hutchins, Jonathan Snow, and Michael Hammett, at Montpelier ; to William F. Meeds, John Farrar, and Ludowick Luce, at Moretown ; to Samuel Jones and Mehitabel Woodbury, at Berlin ; to Joshua Hill, Libbeus Sherman, and Stiles Sherman, at Water- bury ; Silas Williams, at Plainfield ; and Gideon Wheelock, at his house in Calais. Licenses "to sell foreign and distilled spirits " were granted to va- rious parties in Montpelier and Barre, also to sell wines and to " retail for- eign and distilled spirits and wines." The licensing of peddlers does not appear at this early day, however, nor do the county clerk's records of that time show as now, under the beneficent provisions of No. 104 of the laws of 1888, the pedigrees of stallions. Truly the law is a growth.

THE EARLY FIELD.

The field of operations of the earlier lawyers is worth a moment's att en- tion. The towns that went to make up the county had, in 1800, a popula- tion of 5,65r, and in 1810 of 10,524. Barre increased in those ten years from 919 to 1,669 ; Berlin, 685 to 1,067 ; Calais, 443 to 841 ; Duxbury, 153 to 326 ; Fayston, 18 to 149 ; Marshfield, 172 to 513 ; Middlesex, 262 to 401 ; Montpelier, 890 to 1,877 ; Moretown, 191 to 405 ; Northfield, 204 to 426 ; Plainfield, 256 to 543 ; Stowe, 316 to 650; Waitsfield, 473 to 647 ; Waterbury, 644 to 966; and Worcester, 25 to 41. Cabot,

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then in Caledonia county, increased in the same time from 349 to 886; Woodbury, also in Caledonia county, from 23 to 258; Roxbury, then in Orange county, from 113 to 361; and Warren, then in Addison county, from 58 to 229. The comparative wealth of the counties is shown by their grand lists for 1811, when the grand list of Washington, then Jefferson, county was about one-fourth that of Windsor county, one-third that of Wind- ham county, two-fifths that of Orange county and of Addison county, and one-half that of Bennington county and of Chittenden county.

Law-breakers were "loungin' round and sufferin'" in those days after pretty much the same fashion as now. In the first two or three years we find respondents answering to charges of theft, blasphemy, perjury, not pro- curing standard weights and measures, passing counterfeit money, breaking jail, riot, and " keeping a nuisance."

A great source of income to lawyers in those days was from collection suits that came from the general custom of the people of buying on credit and paying when sued. Sheriff Keith used to go out with his saddle-bag full of writs about every year-justice writs that were principally in mere collection suits. And the County Court docket was also amazingly full, containing, as we have seen at the first term, 138 old cases and 140 new ones. June term, 1812, it had 138 old cases and 169 new entries ; December term, 1813, 108 old cases and 190 new entries. But as the " War of 1812" went on, law and possibly the lawyers became somewhat silent amid arms. June term, 1814, there were eighty old cases and 103 new entries; December term, 1814, showed fifty four cases on the old docket and ninety-five new entries; and June term, 1815, there were but fifty-three old cases, while 124 new ones ap- peared, business starting up after the war was over. And soon after it started up with a vengeance, for the March term, 1817, showed 131 old cases and 274 new entries. It is very likely that the hard times following the war were intensified by the fearful weather of the summer of 1816. That summer was so severe that it drove the inhabitants out of Worcester, but one or two fam- ilies remaining, and for two or three years broke up the work of settlement there. The writing in an old almanac before me shows the reasons why the farmers "got left " in 1816. The minutes were evidently made by David M. Camp, who afterwards became lieutenant-governor. They are : " May 14, snow ; May 29, snow ; May 30, very cold ; May 31, hard frost ; June 5, warm, sultry, thunder, etc .; June 6, snow and hail in the morning, continued snowing all day ; June 7, frost, snow all day, water froze an inch thick ; June 8, snow all day ; June 9, more moderate ; June 10, cold in the morning, ground considerably frozen ; very dry season ; August 22, frost seen in some places ; August 24, frost somewhat harder." Mr. Camp's old almanacs also show that in September, 1815, a " frost killed everything," and that in 1817 there was " snow, 16 June ; hard frost, 17 June." It must have been rather a cold June term, that of 1816. Up to 1817 county courts began the first Mondays of June and December; in 1817 the time was changed to the

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second Mondays of March and September, and there have since been various. changes, till now the second Tuesdays of March and September are for a long time settled upon. Many years the terms began in April and November.

When the county was organized the old Vermont Register and Almanac for 1812 gives eight practicing attorneys and four clergymen as the number in its borders. Two attorneys and two clergymen were omitted in that enu- meration, however. There were then ten lawyers in Washington county and 179 in the state ; there were six clergymen in this county and 131 in the state. Of the 131 clergymen two were Presbyterians, two Episcopalians, forty-three were Baptists, and eighty-four were Congregationalists, and one of the latter was the Rev. Publius V. Booge. The six Washington county clergymen were Judge Butler, of Waterbury, and Rev. Mr. Perry, of Barre, Baptists ; and: Aaron Palmer, of Barre, James Hobart, of Berlin, Chester Wright, of Mont -. pelier, and Amariah Chandler, of Waitsfield, Congregationalists. James Fisk,. of Barre, then in Congress, had preached universal salvation, but had got into politics and out of the practice of law if not of gospel.

Spotted fever, typhus fever, and politics were contagious and flagrant in the . early history of the county. The first named disease was very fatal in other parts of the county in the winter of 18to-II, but found but three victims in Montpelier, the physicians of the town being very successful in treating their many patients. The second was very fatal at the county seat, seventy-eight per- sons dying in Montpelier in 1813, one of them being the wife of Capt. Jeduthun Loomis, a leading lawyer. The funeral sermon preached on the occasion of her death, by Rev. Chester Wright, is extant, as well as one on the death of" Sibyl Brown, a little girl who suddenly died of the spotted fever. While Mr. Wright was "improving " these occasions to call the minds of the people from things temporal to things eternal, the minds aforesaid pretty largely "stuck in the bark" of the war. And Mr. Wright got himself prayed for by Elder Ziba Woodworth, who had served in the Revolution, and who was called on to pray at a war meeting which Mr. Wright had not seen his way clear to pray at when invited. " Uncle Ziba " prayed temporal damnation on the heads of opponents of the war as heartily as the other good parson preached eternal woe to the unregenerate. Curiously enough Mr. Wright's grandson has for years been pastor of the Unitarian church in Montpelier, a. good man, liberal as his good grandfather was orthodox, while just now his . . grandfather's old church has called to its still orthodox pulpit an eloquent clergyman who was a few years ago a Unitarian preacher. The uncertainties of the law are still subject-matter of discourse, however.

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Gazetteer of Washington County, Vt., 1783-1889, Part 6

Author: Child, Hamilton, 1836-, comp; Adams, William, fl. 1893, ed Publication date: 1889 Publisher: Syracuse, N. Y., The Syracuse journal company, printers Number of Pages: 898

Author: Child, Hamilton, 1836-, comp; Adams, William, fl. 1893, ed
Publication date: 1889
Publisher: Syracuse, N. Y., The Syracuse journal company, printers
Number of Pages: 898