USA > Vermont > Grand Isle County > History of Franklin and Grand Isle counties, Vermont : With illustrations and biographical sketches of some of the prominent men and pioneers. > Part 20
USA > Vermont > Franklin County > History of Franklin and Grand Isle counties, Vermont : With illustrations and biographical sketches of some of the prominent men and pioneers. > Part 20
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Long before the adoption of a constitution for Vermont the people of the region were living under a form of government established by New York, by which the district was made directly subservient to the laws of that jurisdiction. Counties were erected, and courts organized, but that judicial authority was questioned and opposed, and finally set aside.
An old adage teaches that " necessity knows no law"; and it is well known that necessity-stern necessity-made it indispensable to the safety of the inhabitants of the New Hampshire grants that some means should be devised whereby the opponents to the policy advocated by the majority of the people might be held in check, that the inimical con - duct of the Tory element should not become dangerously contagious ; for, if once become rampant, that obnoxious element would certainly have endangered, if not entirely overthrown, the institutions of the in- fant state, and passed its control into the hands of the New Yorkers. And it was stern necessity, too, that impelled Ethan Allen and his com- patriots to establish an informal court for the trial and punishment of the New York officers sent to the grants with warrants of disposses and ar- rest; but the penalty and judgment of this court seldom went beyond a severe reprimand, or the not infrequently impressive effects of the "beech seal." Necessity, also, made it incumbent on the authorities of the "separate jurisdiction " to establish courts of confiscation, not alone
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that Toryism might be checked, but that the means might be provided wherewith to defray the expenses of the government in civil affairs, and as well to provide and maintain an armed force for aggressive and de- fensive warfare, which, during that period, was waging against Great Britain. But after the independence of Vermont had been declared, and after the constitution of the state had been adopted, assuming these transactions to have been absolutely right regardless of the fact that they were not then sanctioned by the general government, then the authori- ties were in a position to organize courts of justice and administer the affairs of the state more "in due form of law."
The fourth section of the original constitution of Vermont declared that " Courts of Justice shall be established in every county in this State." This was adopted in 1777, but it was not until the succeeding year that officers were chosen under its provisions, the affairs of the state in the meantime being entrusted to the "Council of Safety." This brought into existence the first courts of the counties of Bennington and Cumberland, which then embraced almost the entire district of the state. It is not clear just how or when justices of the peace were first appointed, but there is found a record " of the justices of the peace chosen and au- thorized by the act of Assembly at Bennington, June 17, 1778." The first evidence tending to show the establishing of higher courts is that disclosed by the Assembly journal for the year 1778, wherein reference is made to the " Superior Court appointed by the Legislature," but for lack of record the powers and jurisdiction of this court cannot be related.
In February, 1779, at a session holden in Bennington, the General Assembly passed an act "constituting and establishing one Superior Court in the State of Vermont." This court consisted of five judges with unlimited jurisdiction in all causes of action, except in cases where the matter in demand did not exceed twelve pounds (appeals excepted), and where, for the year ensuing, the question of the title of land was in- volved. The same legislature, on a later day of the session, passed an- other act, entitled "An Act regulating Trials and Appeals," which reads in part as follows: "Whereas no County Courts have been estab- lished in this state, which makes it necessary that all such cases or ac- tions as would otherwise be heard before such County Courts, should now be heard and determined in the Superior Court, Be it enacted," etc.,
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-directing County Court actions to be determined in the Superior Court until County Courts be established. But the acts passed at this session of the Assembly were declared to be " temporary laws," and to remain in force only until the "rising of the General Assembly in Octo- ber next." In October, however, an act was passed extending the op- eration of all laws previously adopted until the close of the Assembly's business in March, 1780. Also the October Assembly passed an act directing that the judges of the Superior Court be chosen by the joint ballot of the Governor and Council and the House of Representatives ; and further, another act fixed the fees of an attorney practicing in the Superior or County Court at six pounds. This act, however, was re- pealed November 8, 1780.
The Court of Chancery was established by an act of the legislature passed at the October session in 1779, by virtue of an act which consti- tuted the Superior Court of the state a Court of Equity ; and by subse- quent enactment the judges of the Supreme Court were made chancel- lors, and the " powers and jurisdiction of the Chancery Court to be the same as those of the Court of Chancery in England, except as modified by the constitution and laws of the state."
Probate Courts were established under an act passed June 17, 1780, but it was not until October 20th following that judges of probate were first designated. As originally constituted the Probate Court was made a court of record, having a seal; also having special original jurisdiction of the settlement of estates and appointment of guardians.
The Supreme Court was established in June, 1782, superceding and supplanting the Superior Court, by an act of the General Assembly, con- curred in by the Governor and Council, which provided "that there shall be and hereby is constituted a Supreme Court of Judicature within and for this State, to be held and kept annually at the respective times and places in this act hereafter mentioned, by one chief judge and four other judges, to be chosen by ballot by the Governor, Council and General As- sembly annually at their October session." From the time of its organ- ization until 1786 the Supreme Court consisted of one chief judge and four assistants; from 1786 to 1825 of three judges; from 1825 to 1827, inclusive, of four judges; from 1827 to 1850 of five judges; from 1850 to 1857, on account of the re arrangement of the judiciary of the state, of
28
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HISTORY OF FRANKLIN AND GRAND ISLE COUNTIES.
three Supreme and four Circuit judges; from 1857 to 1870 of six judges; and under the law of 1870, and from that until the present time, of "one chief judge and six assistant judges," that number constituting the pres- ent Supreme Bench of the state. Courts of Insolvency were established in 1870, and judges of probate given jurisdiction of the settlement of in- solvent estates.
According to the present disposition of the judicial powers of the state the Supreme Court judges are also judges of the County Courts of the several counties of the state, in which character they are associated with two assistant judges, chosen locally, and who may or may not be learned in the law, there being nothing more than the ordinary requisites of cit- izenship to qualify them for this office.
In 1792, when Franklin county was erected, and in 1802, when Grand Isle was likewise created, the local judiciary comprised one chief judge and two assistants; and inasmuch as Grand Isle county was mainly a part of Franklin prior to its separate erection, the general statement that the judges whose jurisdiction extended throughout Franklin also included Grand Isle may be treated as substantially correct. The organization of the courts of Franklin county was completed in 1796, the year after that in which the county itself was fully organized. The first court was held during that year in the Hoit residence on Main street, as afterward known, and there they continued to be held until 1803, when the court- house was completed. The first court was presided over by Chief Judge Ebenezer Marvin, while John White and Samuel Barnard officiated as as- sistants. General Levi House was state's attorney; Prince B. Hall, sher- iff; John White, county clerk and clerk of the courts.
In 1802, as is fully narrated in a preceding chapter, Grand Isle county was erected, taking the greater part of its territory from Franklin, and a lesser part from Chittenden county; but it was not until the year 1805 that Grand Isle county was fully organized, and not until March, 1806, that the first term of the County Court was held. Asa Lyon was the first chief judge, while the assistants were Nathan Hutchins and Alex- ander Scott; clerk of the court and county clerk, Alpheus Hall; sher- iff, Amos Morrill; state's attorney, Philo Berry.
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CHIEF JUDGES OF THE COUNTY COURT.
Ebenezer Marvin, the first chief judge of the County Court of Frank- lin county, was a native of Connecticut, born in April, 1741. His early life was passed on the farm, but he afterward studied medicine and be- came a physician of prominence. After residing for a time in various towns in Connecticut, Vermont and New York, Dr. Marvin in 1794 be- came a citizen of this county, making his home in Franklin, where he died in November, 1820. The life and public services of Mr. Marvin were various and valuable. Says the "Governor and Council": " His first military service was as captain of a company of volunteers who marched to support Ethan Allen and Benedict Arnold at Ticonderoga ; but he subsequently served as surgeon in the Continental service, and in that capacity was present at the battle with and surrenderer of Bur- goyne in October, 1777. He was judge of the Rutland County Court in 1786, and from 1788 to 1794, when he removed to Franklin ; was judge of Chittenden County Court from 1794 until 1796, and of Franklin County Court from 1796 until 1802, and again from 1808 until 1809. He represented Tinmouth in 1783, and from 1786 until October, 1791, when he took his seat in the Council. His services in that body con- tinued for eleven years, until 1802." Describing Judge Marvin the late Chief Justice Royce said : " In person Judge Marvin was august and impressive, being at least six feet in height, with broad shoulders, full chest and stout limbs, every way strong and muscular, and withal quite corpulent. A larger human head than his is rarely if ever seen. In politics he was a Federalist of the Washington school, and in religious preference and profession an Episcopalian."
Jonathan Janes, the successor to Judge Marvin, took his seat on the local bench in 1803, and continued until 1808. He was a native of Connecticut, from which state he came to Vermont at an early day, prior, it is said, to the organization of Franklin county. His first place of resi- dence in the county was at Richford, which town he represented from 1799 to 1802. In 1800, 1801 and 1802 Mr. Janes was assistant judge and moved to the county seat, and became chief judge in 1803. He was county clerk from 1809 to 1813, and again in 1816; was judge of pro- bate from 1808 to 1812. Judge Janes died in 1824.
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HISTORY OF FRANKLIN AND GRAND ISLE COUNTIES.
Joseph D. Farnsworth, the third of the chief judges of the County Court, was born in Middletown, Conn., December 22, 1771. He be- came a practicing physician in 1789, being then but eighteen years of age, and came to Vermont in 1790, locating in Addison, but in 1795 moved to Fairfield, and thence to Charlotte in 1824, to St. Albans in 1836, and to Fairfax in 1839, ending his days in the latter place Sep- tember 9, 1854. Dr. Farnsworth was assistant judge in 1807-08, and succeeded to the chief judgeship of the County Court in 1809, and con- tinued in that capacity until 1815, and again served from 1816 to 1824.
William Brayton .- For sketch of Judge Brayton see "Supreme Court Judges."
Zerah Willoughby, the last of the succession of chief judges of the Franklin County Court, was a resident of Fletcher, and first appears in local history as one of the assistant judges, serving from 1801 to 1806. He was councilor in 1808 and 1814; again assistant judge in 1813-14, 1818-23, and chief judge in 1824-25. By occupation Mr. Willoughby was a farmer and merchant, being the pioneer of the latter industry in his town. He represented Fletcher for four years, commencing with 1821 ; also during 1821 he was town clerk.
In Grand Isle county Asa Lyon was the first of the succession of chief judges of the County Court, concerning whom a recent publica- tion says : " Rev. Asa Lyon was born in Pomfret, Conn., December 31, 1763 ; graduated at Dartmouth College in 1790; was pastor of the Con- gregational church at Sunderland, Mass., from October 4, 1792, to September 23, 1793. He organized the Congregational church in South Hero, in conjunction with Grand Isle, in 1795, and was its first minister, though he never was installed, but was elected by its mem- bers. After a few years a difficulty arose as to his support, when he declared that his pastoral services should be gratuitous. Beginning with a valuable farm, and living in the most frugal fashion, he became the wealthiest man on the islands without the aid of a salary." Mr. Lyon represented South Hero from 1799 till 1803, from 1804 to 1807, and part of the year 1808, until chosen councilor, serving as such one year. He represented Grand Isle from 1812 to 1815, being then elected to Congress and serving to March, 1817. He was chosen chief judge of the Grand Isle County Court, first in 1805, and again in 1806, '07, '09, and '14.
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Benjamin Adams succeeded to the chief judgeship of the County Court in 1808 upon the election of Judge Lyon to the Council, but was him- self succeeded in 1809 by his predecessor. In 1810 Judge Adams was re-elected, and continued in office until 1814, when Judge Lyon was again chosen. In 1816 Judge Adams was again elected, and served without intermission until 1824. In 1819 and 1820 Mr. Adams repre- sented South Hero in the Assembly.
Phillyer Loop, the third in the succession of chief judges, first went on the bench in 1814, in the capacity of assistant judge, and succeeded to the chief position in 1815, serving only one year. In 1810 Mr. Loop represented Alburgh in the General Assembly.
Lewis Sowles was elevated to the chief judgeship in 1824, and con- tinued until the next year, when the office was abolished. As early, however, as 1809 he was chosen assistant judge, and served until 1815 ; and again from 1817 until 1824, when he took the chief position. Like- wise, when the Circuit judges became the presiding officers, Mr. Sowles was again elected assistant judge, serving from 1826 to 1831.
Of the persons heretofore mentioned as having served in the capacity of chief judges of the County Court of Franklin and Grand Isle counties, none, save one, were members of the bar of either county, and were not, therefore, men of whom it can be said that they were learned in the law within the strict meaning of that term. That they were men who pos- sessed at least the average of intellectual ability, that they were men who had a fair understanding of legal maxims and legal principles, no person for a moment can doubt ; for other than such men the people and the legislatures of the period in which they lived were not in the habit of electing to responsible and important positions, either on the bench or in the other leading civil offices of the counties. But with the radical changes made in the character of the judiciary in 1825 it be- came one of the fixed rules of law of the commonwealth to select for the office of judge none except men possessed of full legal education, mem- bers of the bar duly and regularly admitted to practice in the state; and even before the changes made at the time indicated justices of the Supreme Court were elected and appointed by the legislative power of the state only from that portion of the people who were identified with the profession of the law. Therefore it will become the province of this
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chapter in succeeding pages to recognize and refer only to such persons as have been or are members of the legal fraternity, if such characteriza- tion may be allowed.
Of the magistrates on the bench and the practitioners at the bar of the courts, past and present, in the counties of which we write, many have attained distinction, and some eminence. Among the leading legal minds of this commonwealth these counties have furnished their full quota. On the bench and at the bar have been found lawyers of strict integrity and rare ability ; men of worth, men of character, men whose social and mental qualities have made them famous; men whose marked attainments have made for them a high standard in the legislative halls of the state and of the nation ; men whose influence has been so salu- tary and all-pervading that the whole bar seems to have caught some- thing of its spirit, and maintained a freedom from all unworthy methods as can be found in very few communities.
SUPREME COURT JUDGES.
Asa Aldis .- The elevation of Judge Aldis to the Supreme Bench of the state was the first apparent recognition by the appointing power that Franklin county had a bar of sufficient strength to warrant the selection of one of its members for this high office. At the bar of the county at that time were many strong and able legal minds ; but Judge Aldis was the peer of any of them, and his selection for judicial honors was re- ceived with much favor by his associates, and by the profession gener- ally throughout the state. Asa Aldis was born in Franklin, Norfolk county, Mass., in 1770. At the age of five years he became an orphan, and then was taken into the family of an aunt, where he remained until he was fourteen years old. His early education was received under a private tutor, after which, in 1792, he entered Rhode Island College, and was graduated in 1796. He then commenced a course of law study with Judge Howell of Providence, R. I., and in due time was admitted to the bar in that state. For the practice of his profession he located at Chepachet, and remained there some two or three years; but as this place did not appear to offer the success he desired to attain as an attor- ney he made a journey to the then new West, with a view to locating in that country; but not finding a promising locality he returned East,
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coming by the way of St. Albans. Here he saw an opportunity for a young and active lawyer, and at once determined to make that point his future home. Accordingly he settled his affairs at his former residence and became a resident of St. Albans in 1802, and a member of the Franklin county bar in 1803. During the next year he formed a law partnership with Bates Turner, which continued until the latter moved to Fairfield. Mr. Aldis at once took a prominent place in the local bar, being considered by all people of the region as an attorney of more than usual ability. In 1804 he was elected state's attorney, and served in that capacity until 1806. He does not appear to have held any other office until 1815, when he was chosen to the position of chief justice of the Supreme Court of the state, his associates on the bench at the time being Richard Skinner and James Fisk. Judge Aldis remained on the bench but one year, and then resumed practice at the local bar, where, in 1819, he formed a partnership with James Davis, then a leading mem- ber of the profession in the county, a resident of the county seat, and who was admitted to the bar in August, 1812. This relation was main- tained until 1832, when Mr. Davis retired, his place being taken by Asa O. Aldis, son of Asa, the firm thus formed continuing practically until the time of Judge Aldis's death, October 16th, 1847. Judge Asa Aldis was a member of the Council of Censors of 1820. He was one of the Vermont presidential electors in 1824, and again in 1828.
William Brayton -The second representative of the Franklin county bar on the Supreme Bench of the state was William Brayton ; and he is understood as having been an attorney formerly a resident of Swanton, possibly a native of the town. Judge Brayton was admitted to practice in Franklin county in February, 1807, and was the only lawyer of the county who was elected chief judge of the County Court during the con- tinuance of that office in the county, his term of service as such cover- ing the years 1815 and 1816. The next year, 1817, Judge Brayton was elected to the Supreme Bench and served five years, and until succeeded by Judge Charles K. Williams, in 1822. The practicing attorneys of the present time will undoubtedly remember Judge Brayton more particu- larly through " Brayton's Reports," which were published during the period of his incumbency of the judgeship.
Stephen Royce, the peer of any man who ever occupied a place on
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HISTORY OF FRANKLIN AND GRAND ÍSLE COUNTIES.
the Supreme Bench of Vermont, in the halls of the state legislature, or in its gubernatorial chair, was born in Tinmouth, this state, on the 12th of August, 1787 ; came with his parents to Huntsburgh, now Franklin, in 1791, and two years later to Berkshire, where he ever after made his home, although during the course of his busy career he resided tem- porarily elsewhere at various times. There were no established schools in Berkshire prior to 1800, but young Royce, nevertheless, laid the foun- dation for his education through parental instruction, beside learning much by absorption and observation, for he was unusually bright and intelligent, even as a child, and seemed to gain knowledge from every surrounding object in nature, such was the peculiar construction and character of his mind. When he was but thirteen years of age young Stephen was sent to Tinmouth for the purpose of attending school, where he remained for some time, but not without interruption, as he was occasionally called back to Berkshire, his services being required on the farm. He entered Middlebury College soon after the incorporation of that institution, and was graduated with the class of 1807. Return- ing home he afterward taught school in Sheldon, at the same time pur- suing a course of law study under the instruction of his uncle, Ebenezer Marvin. In August, 1809, he was admitted to practice in Franklin county. In his early years of practice he is found in various places : first for two years in Berkshire ; then one year with his uncle in Shel- don; after which he went to St. Lawrence county, N. Y., for a time, but returned again to Sheldon. From 1816 to 1818 he was state's attorney for this county, and during 1815-16 represented Sheldon in the legis- lature. In 1817 the young counselor moved to the county seat, and in 1822 '23 and '24 represented St. Albans. In 1825 he was elected to the Supreme Bench, serving during that and the next year, but in 1827 was succeeded by Bates Turner. However, in 1829, Judge Royce was again elected to the bench, and served with honor and even distinction con- tinuously till the close of his term in 1851, then declining a proffered re- election. From 1846 to the time of his retirement our subject was chief judge of the Supreme Court. But the people of the state had still other honors for their late chief justice, for in 1854 and '55 he was elected governor of Vermont. After two terms of honorable incum- bency in the highest office in the state, and being grown " weary and
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old with service," Judge Royce retired to private life, taking up his abode on the old home farm in Berkshire, where he ever after remained until the end of his days, on the IIth of November, 1868, then being more than eighty years of age.
After the death of Judge Royce, at a meeting of the bar in St. Albans held January 19th, 1869, the eulogist of the occasion, B. H. Smalley, speaking of the life of the late chief justice, said : " That character, pub - lic and private, has become the property of the nation in general, and of Vermont in particular ; and it is well to set forth its virtues as the proud heritage of our state and an example to the rising generation. In all his relations in life he was guided and controlled by the highest princi- ples of moral rectitude. Not that rectitude which is said to make a man 'honest within the statute'; it had a larger scope, a more solid basis, than any mere human law in his own strong intuitive sense of jus- tice. In his personal transactions, where there was any doubtful mat- ter, he always gave the benefit of the doubt to his opponent, more anxious to do entire justice to others than to exact it from them to him- self. As a jury advocate he was the equal of any at the bar. He had the capacity of so stating the case to the jury that the simple statement was often more effective than the most elaborate argument of his opponents. In analyzing and presenting the evidence to the jury his quick eye and keen perceptions enabled him to detect distinctions and shades of difference that often escaped the notice of his opponents.
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