USA > Vermont > Rutland County > History of Rutland County, Vermont, with illustrations and biographical sketches of some of its prominent men and pioneers > Part 30
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The County Court continued to sit in Tinmouth until the fall of 1784, when, on the third Tuesday of November, it sat in the village of Rutland. Present, Hon. Increase Moseley, chief judge ; Benjamin Whipple, William Ward and 17
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Samuel Mattocks (it is spelled " Mattox " in the record), assistant judges. In Thompson's Civil History of Vermont (1840), the jurisdiction of the County Courts is given as follows : " The County Courts have in their respective coun- ties, original and exclusive jurisdiction of all original civil actions, except such as are made cognizable by a justice, and of all such petitions as may by law be brought before such court, and appellate jurisdiction of all causes, civil and criminal, appealable to such court, and may render judgment thereon accord- ing to law. They also have jurisdiction of all prosecutions for criminal offenses, except such as are by law made cognizable by a justice, and may award such sentence as to law and justice appertains."
This is substantially the jurisdiction given to this court from the first.
There was no change in the County Court until 1824 (taking effect in 1825), when the following provision of law was passed : "From and after the third Thursday of October, in each county within this State [this court] shall consist of one chief justice, who shall be one of the justices of the Supreme Court, to be designated by the justices of the Supreme Court annually, for each circuit, and two assistant justices, to be appointed as now by law required ; any two of whom shall be a quorum to transact business."
The same act defines the jurisdiction of the court as follows : " Of all crim- inal matters of every name and nature, arising in such counties, except such as are made cognizable before justices of the peace, and award sentence on the same; and in all civil actions whatever, except such as are by this act made cognizable by the Supreme Court and such as are cognizable before justices of the peace, and render judgment," etc.
The counties of Bennington, Rutland and Addison formed the first circuit, and the sessions in Rutland were ordered held on the second Mondays of April and September.
There have been no other changes in this court, except that in 1856 a cir- cuit judge was specially elected, under Legislative enactment, to preside over the County Courts in his circuit, instead of one of the Supreme Court judges, as theretofore provided. This method prevailed, however, only during the year 1857, when the former plan was adopted.
The Court of Chancery was provided for, to be held in the several counties, at the several times and places designated for holding the Supreme Court. The judges of the latter court were constituted judges or chancellors of the Court of Chancery, with powers similar to those held by the chancellors of the En- glish courts. This court passed out of existence in 1839.
The judges of the Supreme Court previous to the organization of Rutland county were, for 1778, Moses Robinson, chief judge; John Shephardson, John Fassett, jr., Thomas Chandler and John Throop, side judges. 1779, Moses Robinson, John Shephardson, John Fassett, jr., John Throop and Paul Spooner. 1780, Moses Robinson, Paul Spooner, John Fassett, jr., Increase Moseley and John Throop. (See Chapter X. for subsequent judges).
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The clerks previous to the formation of the county were Stephen H. Brad- ley, whose administration embraced at first all the State, and subsequently be- came diminished as the various counties were organized ; and Jonathan Brace, who held the office one year.
Probate Courts. - These courts were established about simultaneously with the erection of the county, and have continued with little or no change until the present time. According to the statute it was provided that " this court shall be a court of record and shall have a seal." Its jurisdiction was made the probate of wills, settlement of testate and intestate estates, appointment of guardians, and over the powers, duties and rights of guardians and wards. It was provided that the probate judge should appoint a register, whom he might remove at his pleasure ; that he might issue warrants and processes to compel the attendance of witnesses, etc. This county was divided into two districts- the district of Rutland and the district of Fairhaven. The former embraces the towns of Rutland, Pittsford, Brandon, Chittenden, Pittsfield, Sherburne, Men- don, Clarendon, Shrewsbury, Mount Holly, Mount Tabor, Ira, Middletown, Tinmouth and Wallingford. The Fairhaven district includes the remaining towns of the county.
Justices of the Peace. - These officials were until 1850 nominated and ap- pointed annually by the General Assembly. Originally they had power to try all actions of a criminal nature, where the fines came within the sum of forty shillings, and the corporal punishment did not exceed ten stripes. They could also try civil actions (other than actions of defamation, replevin, trespass upon the freehold, and where the title of land was concerned), where the debt and other matters in demand did not exceed the sum of four pounds; and also de- termine on all specialties, notes of hand, and settle accounts not exceeding the sum of eight pounds. They could also bind over to be tried, by the County or Supreme Court, all criminal offenders the enormity of whose offenses sur- passed their power to try.
The jurisdiction .of justices of the peace has been gradually extended, as experience has shown was desirable, and now embraces the hearing of all civil matters where not more than $200 is involved and criminal matters where the fine does not exceed twenty dollars. They may also cause persons charged with crimes exceeding their jurisdiction to be apprehended and committed to prison, or bound over with sufficient sureties, for trial by the County Court.
The constitution of the State was so amended in 1850 that assistant judges of the County Court, sheriffs and high bailiffs and State's attorneys were there- after elected by the freemen of their respective counties, judges of probate by the freemen of their respective districts, and justices of the peace by the free- men of their respective towns.
The Records. - In the records of the courts on file in the clerk's office of this county, extending as they do back even beyond the history of the county
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itself, are many things of surpassing interest which cannot for want of space be transcribed here ; but brief reference to some of them will not be out of place.
We find entered as a rule of the court, in connection with the first docket of the County Court, before alluded to, the following, which will inform the present bar how their predecessors of that day were admitted to practice :
" A rule made by the court for the admission of attorneys. - Application shall be made to the court, in a private manner, for the admission of every Gentleman to practice as an Attorney at the bar. And if the Court think proper, they will order a private examination of the candidate, or candidates, to be made by the gentlemen of the bar, and if they think proper, after the ex- amination, may then recommend the candidate or candidates to the court in public and will order him or them to be sworn." Thus Darius Chipman was admitted "to the attorney's oath."
The whipping-post was an important adjunct of the early courts for the suppression of crime, and was found in many of the towns of the county. The one used in the town of Rutland stood not far from the site of the present foun- tain in the park on Main street ; with it was connected, as customary, the pil- lory. Here many prisoners convicted of crime were stripped to the waist, tied up to the ring in the post and lashed with a cat-o'-nine-tails, the number of stripes being judged in the sentences. A criminal was thus punished in Rut- land as late as 1808. There was, as is well known, a great deal of counterfeit- ing of paper money in the early years of the county's existence, and the pun- ishment visited upon those engaged in the nefarious business was often very severe. In 1785 one Canfil Wood and another man named Carpenter were arrested and hurried through a trial in which their guilt was established. The sentence of the former was that he " receive fifteen stripes on the Naked Body, on the 15th day of instant [January]," in Rutland. Carpenter was sentenced to receive thirty-nine stripes. These sentences were executed, and the feeling of the community towards counterfeiters generally is indicated in a grim sort of way by the sheriff's return, on which was endorsed the fact of the execution of the sentence, followed by the expressive words, " Well laid on !" There are persons living in Rutland to-day who well remember the whipping-post and its uses.
Another instance, the details of which have been searched by the kindness of Clerk Henry H. Smith, is similar in character to the one described, but shows more forcibly the expedition and certainty of execution observable in many of the old criminal cases. The crime in this instance was passing coun- terfeit money, and the time 1808. Royal Tyler was presiding judge and The- ophilus llerrington and Jonas Galusha, assistant judges. The principal crimi- nal of those arrested was found guilty and sentenced to stand one hour in the pillory, be whipped thirty-nine lashes at the public whipping-post, with cat-o'-
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nine-tails, and pay a fine of $500 and costs of prosecution ($67.20), and be con- fined to hard labor in the State prison for seven years and stand committed until said sentence be complied with. The others received sentences more or less similar. The trial, sentence and its execution, as far as the transportation to the prison, all took place in one day. The venerable Amasa Pooler, still living in Rutland, witnessed the whipping in this case, and saw the sheriff wash the naked backs of the culprits with rum, which he poured from a large pitcher. Something near a hundred sleighs were drawn up around the park, although the day was bitterly cold and the snow deep, to witness the execu- tion of the sentence.
In 1782 the records show that the following persons in the county were licensed to keep public houses and sell liquors under certain restrictions. In Rutland, William Barr and Captain John Smith, Ist. Castleton, Reuben Moulton, Frederick Remington, Isaac Clark. Poultney, Silas How, Nathaniel Smith, Thomas Ashley. Pawlet, Jonathan Willard, Zadock Everist, Joseph Armstrong, Thomas Lothrop, E. Curtice, Elisha Clark. Clarendon, Increase Moseley, Elihu Smith, John Bowman, F. Tullar. Tinmouth, Solomon Bing- ham, Daniel Edgerton, Cephas Smith, Benjamin Haskins, Neri Crampton. Wallingford, Abraham Ives, Alvin Jackson.
Among the old warrants are many strange and quaint pictures of criminal life. One man was arrested for assaulting his wife, " taking his sword and other weapons Dangerous, in a manner which put y'r Complainant in Fear of her Life and Safety."
So, also, in the numerous complaints are to be found interesting documents. John Burnam, esq., who is hereafter alluded to as long a prominent lawyer in Middletown, complained that " Titus Simonds, of Hartford, in the county of Cumberland, is guilty of Enimical Conduct against this and the United States of America, in that he, the said Titus Simonds, on the 4th of September, 1777, did go over to the Enemy, and aid, and assist them against the said States and afterwards was found within the limits of the State, lurking in a secret manner," etc.
Another complaint of May 26, 1779, alleges that Isaac Reed, Enos Lov- ell and Asher Evens, did "break the peace in a Riotous and Tumultuous manner, assembled with other persons, by threatening and Insulting Capt. Lemuel Sargents, of Rockingham in s'd county, when in the execution of a Lawful command, all of which wicked conduct is a flagrant violation of the laws," etc.
Another of this class of documents alleges on the part of Elnathan Hub- bell, of Bennington (after reciting his good name, etc.), that Abner Mill slan- dered him so as to " deprive him of his good name and fame, credit, esteem and reputation aforesaid, and to bring him into scandalous reproach and dis- pleasure, in the following language ; 'Bennington, Aug. 6, 1779. These lines
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from your friend, Elnathan Hubbell to Abner Mill, I desire you'ld come and pay me for that hive of Bease you have taken from my house in the Silent Night, thinking you were secure, but there being two undiscovered to you have acquainted me which are your friends and mine and if you will come spedily and settle it with me, well I nor witnesses will not expose you, if not you may expect the sudden fate,'" etc.
Imprisonment for debt was not abolished in this State until the year 1839, previous to which the courts were burdened with that sort of legal business. But we cannot extend these quotations further. They serve to show in un- mistakable terms, the condition and practices of the courts and officers of early times.
In this connection the following quotation from an old volume entitled Travels Through the Northern Parts of the United States, in the Years 1807 and 1808, published in 1809 by Edward Augustus Kendall, describing a court scene in Rutland in early days, is pertinent and interesting : -
" Rutland is the county town of the most populous county in Vermont ; and adjacent to the inn at which I put up, is the court-house. On my arrival, which was after sunset, I found the public curiosity engaged by a sitting in the court-house, on some persons apprehended on a charge of counterfeiting bank- bills. As this was an offense of which I had heard much in all parts of Ver- mont, I had my curiosity, too, and I repaired immediately to the tribunal.
" At my entrance, I saw, through the dusk, about a hundred persons, shab- bily dressed, standing, sitting, and reclining on the benches and tables; and from this apparent disorder, I came to an instant conclusion, that the court had adjourned ; but, after a few seconds, the words, this honourable court, which pro- ceeded from the speaker whose voice I had not at first distinguished, drew me over to a contrary opinion, and I believed that the honourable court was cer- tainly to be found in some portion of the presence in which I stood. Accord- ingly, I set myself, in all diligence, to look for it ; and, as the principal group was assembled on what I afterward found to be the right hand side of the bench, I first supposed it to be hidden there. Soon after, however, having succeeded in distinguising the person of the orator, and observing the direc- tion in which he addressed himself, I satisfied myself of my error. In short, I descried, upon the bench, four or five men, dressed like the rest, but differing in this, that they were bare-headed, while all the others wore hats. From this particular, I was henceforth constantly able to distinguish the court from the rest of the persons who filled, from time to time, the bench.
"Having now made myself acquainted with the court, I looked next for the jury and the prisoners ; but, jury there was none ; and, as for the single prisoner that was present, he sat, undistinguished, among the lookers-on. By degrees, I discovered, that though there was a whole bench of judges, and six or eight lawyers at the bar, this honourable court, of which the name was a
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Court of Inquiry, was engaged merely in an affair of police, and was called upon only to discharge, or to commit for trial, two or three persons, appre- hended as above. The court consisted only in the person of one of the mag- istrates, his bare-headed companions being but assistants in courtesy. This use of the words court or honourable court had often misled me, and I had now been as much misled as before.
" There is, in Vermont, as in some of its fellow-republics, no attorney-gen- eral for the whole republic, but an attorney-general, or as it is called a State's Attorney, for each particular county. In the present instance, the attorney- general for the county of Rutland, aided by a second lawyer, appeared for the prosecution, and there were also two lawyers who defended the prisoner. These gentlemen, with many others, were seated at a table, covered with green cloth ; and, upon the table, sat two or three of the sovereign people, with their backs toward the honourable court. In front of the bench, and without the bar, upon a raised platform, was an iron stove, or poële ; and, upon the platform, stood half a dozen of the same poeple. The stove, though both the court and the bar frequently spoke of their sufferings from the cold, and occa- sionally discussed the propriety of adjourning, to warm themselves in the ad- joining public houses, contained neither fire nor fuel.
" It was a counsel for one of the prisoners that I had found upon his legs ; and I presently perceived that the merits of the case were in discussion upon the broadest basis. Fundamental principles, as recommended in the instrument, called the Constitution of the Republic, were frequently recurred to. The whole theory of the rights of man, and the whole basis of the social compact, were agitated ; and a deplorable picture of the oppressions of the existing govern- ment were drawn. 'Why, men will say,' exclaimed this counsel for the pris- oner, ' we are fallen in evil times, if the government can put mankind in gaol, when they please, when there's nothing agin 'em!' Proceeding in this strain, and reiterating the words government and fallen in evil times, the counsel made a most formidable speech, such as might have shocked many an honest soul, who, till he heard him, had dreamed of nothing but a paradise of civil liberty, upon the sides of the Green Mountains. "
After further describing the arguments of the counsel in a similar vein, the writer conveys the information that the prisoner was held; he concludes as follows : -
" The court now adjourned till after supper ; that is, till about 8 o'clock. It was in no small degree satisfactory to observe, that amid the want of defer- ence for the magistrate, manifested in a number of instances, and amid some defects of education in some of the members of the bar, the sentence pro- nounced was heard in silence and submission. The counsel for the defense is also a very respectable man, 'in evil times though fallen.' With the sentence of the court, and with the conduct of the prosecution, I saw less occasion to be pleased. "
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The presiding judge on this occasion was Theophilus Harrington (or Her- rington, as he wrote his name), the.eccentric magistrate of that period, of whom the reader will find a sketch a little further on, and also some notes regarding him in the subsequent history of the town of Clarendon. To those of the pres- ent day who are famillar with the characteristics of that individual, it will not need to be said that he was the last person who would be apt to utter com- plaint at a want of respect towards himself in open court.
The County Bar. - The history of the Bar in Rutland county is coeval with that of the State. It begins at a period when many changes had taken place in the early habits of society ; when the simplicity of the fathers had yielded in a measure to the refinements consequent upon the increase of wealth and population, and when the proceedings before the judicial tribunals had be- come more technical and complex than in the early history of New England. There were few if any lawyers who resided in this county previous to the Rev- olution ; but there were many individuals who attended the early courts, who were not educated in the profession. They were commonly of a class possess- ing, perhaps, some influence in their own neighborhoods, with more or less aptitude for the transaction of ordinary business. They were the forerunners at the local bar, and occupied the ground afterwards monopolized by better educated men ; some of them had a large business of the more ordinary char- acter. We would not speak lightly of these men ; they are not esteemed by all so highly as they ought to be ; these lions had no painters; they lived be- fore the reports, and that was living too early for their after fame; tradition cannot do them justice. But from the history that has come down to us and from all that can be gathered in relation to them, an opinion favorable to their professional merit acquires new strength. These and other considerations tend to establish their right to consideration. Their libraries were scantily furnished ; and this very scantiness led them to study the more intently the books they had ; to be guided by what lights their own minds afforded; and, in some in- stances, doubtless, to more than supplying the place of authorities ; it compelled them to form the habit of relying largely upon their own resources.
Foremost in the bar of Rutland county stands the figure of Nathaniel Chipman. He was a descendant in the fourth generation from John Chipman, of Barnstable, Eng., who came to Massachusetts in 1630. Nathaniel's father was a blacksmith and brought up his sons to arduous labor. At the age of twenty years Nathaniel's mind was stored with wholesome qualities inspired by the rigid Puritanical discipline of his home, and he entered upon a course of classical studies with the minister of his parish, to fit himself for Yale College, which he entered in 1773. He soon took a high position in his classes, but before his senior year ended he left the institution for the army of the Revolu- tion. Enough is known of his military life to give assurance that he performed its duties and suffered its hardships with the patriotism that would be expected
BARNES FRISBIE.
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from such a man. He was made a lieutenant in the service, and in October, 1778, reluctantly tendered his resignation " on the sole ground that he could not longer remain in the service without either becoming a beggar, or a debtor to an amount that would embarrass and perhaps ruin him for life." The res- ignation was accepted. In March, 1779, less than five months from his resig- nation, he had finished his study for the bar, having been granted his degree from Yale while in the army. He was admitted to the bar in Connecticut and then, in April, 1779, repaired to his father's house in Tinmouth. Here he en- tered upon his practice, and that was his home for the greater part of his life. His was the third admission to the bar of Vermont (June, 1779), and his pro- fessional circuit embraced what are now the counties of Bennington, Rutland, Windham and Windsor. From 1781 to 1785 he was State's attorney. March 6, 1784, he was with Micah Townsend as a committee to revise the statutes of the State ; in October of that year Isaac Tichnor, Samuel Knight and Stephen R. Bradley were added to the committee. Their labors were admirably per- formed. From October, 1784, to October, 1786, he was a representative in the Legislature for Tinmouth. From December, 1786, to December , 1787, he served as judge of the Supreme Court - the only lawyer on the bench - and as chief justice from December, 1789, to December, 1791. He was, in 1789, made one of the commissioners to settle the long controversy between Vermont and New York, and his influence and ability were largely instrumen- tal in closing the protracted controversy. In the appointment of Federal offi- cers for the State, President Washington selected Nathaniel Chipman as judge of the United States Court for the district of Vermont, - a life office, but re- signed by him in 1793. He resumed practice, accepting only very important cases, and continued until 1796, when he was again elected chief justice and was appointed on a committee to revise the statutes; this resulted in the code of 1797, which was almost entirely the work of Mr. Chipman. Before his term as chief justice expired he was elected United States senator, which office he held from March, 1798, to March, 1804. He exhibited his modest nature and love of his adopted town, when he represented Tinmouth in the Legislature in 1805, and continued in the office until 1811. In March, 1813, he was elected one of the council of censors. From December, 1813, to December, 1815, he again served as chief justice, which official labor substantially closed his public life. In 1793 he published his Principles of Government (afterwards extended and republished), and the first edition of Reports and Dissertations. Other pamphlets and publications were issued from his pen, all bearing evi- dence of his splendid intellectual endowments. In 1816 he was appointed professor of law in Middlebury College, which position he held nominally until his death. It has been written of him that " he was great in almost all the best sorts of knowledge. Given a sound body and mind, a taste for reading and profound reflection, and a tenacious memory to make his own forever all
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