USA > Vermont > History of eastern Vermont, from its earliest settlement to the close of the eighteeth century with a biographical chapter and appendixes > Part 16
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A prosecution for " trespassing against his Majesty by cutting, felling, and destroying many white pine trees" on lands in Windsor, was commenced against the Deans in the court of Vice-Admiralty for the province of New York. Writs were granted by the Hon. Richard Morris, Judge of the Vice- Admiralty, and were placed for execution by Thomas Lud- low, Provost Marshal in the same judicatory, in the hands of Whiting, who at the same time was made Deputy Marshal. Armed with the authority of the law, and a brace of pistols, Whit- ing, on the 29th of August, 1769, entered the dwelling-house of Capt. Dean, who was at that time at Springfield, Massachusetts, and without any opposition arrested his two sons. On the evening of the same day he delivered the prisoners to the care of his assistants, Benjamin Wait and Samuel Patrick, whom he supplied with pistols and ammunition ; and having commanded them to fire on the prisoners if they should endeavor to escape, or take advantage of any attempted rescue, he departed. Wait and Patrick remained on guard until the next morning, when the former delivered his pistol to James Rosebrook.
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HISTORY OF EASTERN VERMONT.
[1769.
During the day, while the prisoners were preparing for their journey to New York where they were ordered to appear for trial, they were watched by Patrick and Rosebrook. Towards evening, Solomon Emmons and David Getchel made their appearance, and informed the last mentioned keepers, that by the order of Israel Curtis, a justice of the peace, they had come to stand guard during the night. The pistols were accordingly delivered to Emmons and Getchel, with orders to fire as before.
On the morning of the 31st, as William Dean Jr. was stand- ing in the outer doorway of his house, in which he had for two days been a prisoner, Israel Curtis came up. Dean desired him not to enter. Curtis, upon this, seized Dean, and pushing him a considerable distance, vociferated, "You blockhead, you rascal, how dare you bid me not to come into your house ? Don't you know that I am a justice of the peace ? I have a right to break into your house and break all the locks that are in it, and have a right to pull your house down over your head, and by the living God, I will make you know it in less than one month." Thereupon, Curtis took the pistols from the guards, and gave them to Enoch Judd and Elnathan Strong, with orders to fire the prisoners through, or " break their bones with clubs" should they attempt to escape. Terrified by such language and commands, Mrs. Dean, the wife of the prisoner, "fell into a fit," from which she did not recover for several hours. A little before noon of the same day, Whiting came again to the house, and having placed the prisoners in the care of Wait and Rosebrook, ordered the party to proceed to Hinsdale on their way to the city of New York. This order they obeyed.
On the evening of September 1st, the guards with their prisoners having reached Westminster, were there met, at the inn of Ephraim Ranney, by one John Grout, an attorney-at-law in Cumberland county. Having been informed by the Deans of the misery of their condition, of the ill usage they had received, and of the restraint under which they had been kept, Grout asked the guards whether the prisoners had behaved improperly or shown a disposition to escape. Being answered in the negative, he declared that prisoners ought not to be carried under the "terror of death," nor "threatened with beating," provided they conducted with decorum while in custody, and were submissive to their keepers ; that Whiting
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1769.]
was much at fault, in suffering the prisoners to be treated in such a barbarous manner; and that they, the prisoners, had the right, should they choose to exercise it, of bringing an action against the guards for abusing the privileges of their office. The conversation being renewed on the morning of September 2d, Grout asserted that prisoners taken on a mesne process, " ought not to be carried to prison under terror of fire-arms, and that in case they should attempt to escape, their keepers would have no right to kill them, or to disable them by firing on them." He then asked the Deans whether they would promise not to make any attempt to escape. To this question they replied affirmatively. He then endeavored by threats and promises to persuade the guards to unload their pistols. In this attempt he succeeded, but was unable to make them burn their ammu- nition. He also counselled the guards to treat the prisoners with kindness, and the prisoners to be obedient to their keepers, and by no means to attempt to escape. The prisoners, who were almost destitute of money, requested Grout to repair to Springfield, Massachusetts, and obtain for them pecuniary assistance from their father. Having accepted the commission he soon after started on his journey. The guards with their prisoners were not long in following, and on arriving at Hins- dale in the evening, were rejoined by Grout, who had arrived before them.
While Wait and Rosebrook were engaged in conducting their prisoners from Windsor to Hinsdale, Whiting, on information presented to Governor Wentworth by Daniel Jones, a deputy surveyor, had, with the assistance of Amos Tute, one of the coroners of Cumberland county, arrested Ebenezer Fisher of Brattleborough, on Saturday, September 2d, charged with the same offence which had been imputed to the Deans. On the evening of the same day, Whiting went with his prisoner to the house of Samuel Wells, who resided in Brattleborough, and who was one of the judges of the inferior court of Common Pleas. Having informed him of the arrests he had made on process from the court of Vice-Admiralty, he told him that he should expect his aid as a magistrate, provided there should be occasion for it. In reply, Wells expressed his dislike to the proceedings, and said that they were "spiteful or malicious actions," and were owing to Governor Wentworth's dislike to the people on the west side of the Connecticut. Continuing the conversation, Wells asked Whiting by which way he intended
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to carry his prisoners to New York; whether through Massa- chusetts and Connecticut, or through the woods to Albany. Whiting made answer that he was undecided as to the route he should pursue, and remarked that Jones and Grout had told him, that by the laws of Massachusetts there were regulations by which officers of other governments could convey prisoners through that province, if necessary. Wells replied that he knew of no such regulations, but if there were any such, he should advise him to go by that way, as the travelling would be much easier than by the road through the woods to Albany, which was but little travelled, and for a part of which a guide would be indispensable. Having learned on whose information Fisher had been arrested, and Fisher having stated that he had taken only such trees as had been blown down years before, and such as were partly decayed, Wells told Whiting that he was inclined to believe the prisoner's statement, as he knew of his having such logs in his possession, and that he had brought none other than such to his saw-mill. He added, moreover, that the conduct of Jones appeared to him "malicious and vexa- tious." Whiting then observed that he had no power to release Fisher, but that Jones probably had ; and desired Wells to meet him and Jones at the house of Amos Tute in Hinsdale,* on the Monday following, for the purpose of consulting in reference to the prisoner's enlargement. To this proposition Wells assented.
In connection with the conversation above detailed, Wells asked Whiting whether he had any means of procuring the at- tendance of witnesses, and who the witnesses were. Whiting answered that he had with him blank subpænas, which he should fill up with the names of those who could prove what was alledged against the prisoners, and serve. According to the terms of these subpoenas, witnesses were required to obey the directions they contained under the penalty of one hundred pounds. This representation having given rise to debate, Wells read from Jacob's Law Dictionary under the title Subpoena, to the effect that the penalty was inserted " in terrorem," and was not recoverable of the witness in case he should not attend agreeable to the summons. It further appeared in the course of conversation, that the witnesses, although commanded to ap- pear in the city of New York, were to receive but two or three
* Now Vernon.
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PROSECUTION OF THE DEANS.
1769.]
shillings to compensate them for their loss of time, and defray the expenses of their journey.
At the close of this conference, Whiting proceeded to Hins- dale, where he found Grout in consultation with the Deans, who with their keepers had that day come from Westminster. Turning to Whiting, Grout endeavored to persuade him to go with his prisoners through the provinces of Massachusetts and Connecticut. In support of this advice he mentioned the diffi- culties which beset the way through the mountains to Albany, the excellence of the other route, the license contained in the laws of Massachusetts and Connecticut, allowing officers of other jurisdictions to convey prisoners through those provinces, and the legal right which the guards would have, should they adopt the course recommended, to require the assistance of the people of the county through which they might be passing, in case an attempt should be made to rescue the prisoners. Wait then told Whiting that Grout had said at Westminster that he, meaning Whiting, " had no right to carry fire-arms when he had any prisoner in his custody." Upon hearing this statement, Grout not only acknowledged it as his own, but reiterated it, and added that he would make Whiting comprehend its meaning.
On Sunday morning, September 3d, Whiting informed Grout that he intended to set out for Albany with his prisoners, on the Tuesday following, by the way of the woods. Grout in reply acquainted Whiting with his business at Springfield, and desired him to tarry at Hinsdale until his return, which he fixed on Tuesday night. Whiting made no promise, and Grout soon after set out on his journey down the river.
Early on the morning of the 4th, by previous agreement, Wells repaired to Hinsdale and there met Whiting and Fisher. As the object of this meeting was to consult with Jones, the deputy-surveyor, in regard to the release of Fisher, and as Jones resided on the opposite side of the river, Whiting, in company with Major John Arms, the High Sheriff of the county, crossed over to find him. During their absence, Wells took the pri- soners into an adjoining orchard and engaged them in conversa- tion. Meantime, Wait observed the whole proceeding, as he stood before the door of the house where his party were lodged. The interview being ended, Wells inquired of Wait concerning the route by which he supposed the prisoners would be conveyed to New York. On being told that they would probably be taken across the mountains, he remarked that it would be easier
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to go down the river, as they would thus gain the advantage of "a good road all the way." Wait then remarked that Whiting had not decided when he left Windsor, upon the course he should pursue in travelling. Wells answered, that if Whiting had decided to pass through Massachusetts, and Grout had known of it before his departure, he would probably have lain in wait at Springfield and rescued the prisoners. Such a trans- action Wait declared would only have created trouble and increased the costs of the trial, as the prisoners would have been pursued and again arrested. By this time Whiting and Arms had returned. Satisfactory explanations having been given, Fisher was by Jones's direction released, and allowed to depart without any recognizance. Wells then repeated, in substance, to Whiting what he had before said to Wait in reference to the intended journey, telling him among other things, "that he would never get across the woods, and had much better go down the river where he could go in a canoe or have a good road all the way." He however advised him, in case he should go by the mountain road, to get one Stockwell for a pilot, who, he said, was reputed to know the way well.
On the afternoon of the 5th, which was Tuesday, Whiting and his party started on their journey. At the time of their depar- ture Grout was still absent. On their way through Brattle- borough they met Sheriff Arms at Wells's saw-mill, which was situated beside the highway, and from him received an invita- tion to stop at his house when they should reach it, and take some refreshment. On arriving at his house, a dinner was pro- vided for them, and on sitting down at the table, they discovered that Wells and Daniel Whipple were also guests of Major Arms. During the repast, Wells sent to his house for rum, "and having made some liquor they all drank and conversed freely together." At the request of Whiting, Wells advised the pri- soners, as they had but little money with them, to give Whiting an obligation under their hands, for the repayment of what he should expend for them on the road. To this proposal they agreed, and Wells having written the obligation, they executed it. As conversation became less restrained, owing in part to the excellence of the "liquor," Wells told Whiting that had he gone through Massachusetts, he thought Grout would have arrest- ed him on behalf of his prisoners for false imprisonment, and that the prisoners would have been set at liberty. In the same manner, others of the company bantered him, until growing
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1769.]
angry, he intimated that Wells had sent Grout on his errand to Springfield, told him " he was a pretty devil of a judge to at- tempt to serve him in that manner," and further declared, that it was his duty as a magistrate, "rather to assist an officer with prisoners, than to try to lead him into a snare." To these un- courteous remarks Wells replied, " that, so far from leading him into a snare, he never knew that Grout had gone to Massachu- setts, until Whiting had so informed him." "Had I sent Grout to Springfield," said he, "do you think I would have advised you not to go that way ?" Changing his tone, he declared that the arrest of the Deans was " but a bad or a spiteful action," that he was determined to assist them to the extent of his power, and intimated his regret that he was not able to set them free. Whiting seemed satisfied with the former part of this explana- tion, and, the dinner being ended, requested Wells to accompany him two or three miles and show him the road to Albany, with which request he complied. As they were proceeding on their journey, the prisoners on foot being unable to keep pace with Whiting who was on horseback, were told by him, that unless they travelled faster, he would fasten them together with ropes or straps, and throwing them across his horse would carry them in that way, or would tie them to the animal's tail in order that they might learn the proper step. Wells then counselled them to make as much haste as they could conveniently, to be obedient to their guards, and by no means to attempt an escape. With this advice they promised to comply. Before parting, Whiting remarked to Wells that his advice had caused the prisoners to walk much faster, and thanked him for all the favors he had shown him.
Whiting conveyed his prisoners that day as far as Marl- borough, and obtained lodgings at a kind of a half inn kept by one Stowell. During the night, the small log-house which they occupied was beset by a body of men from Brattleborough and Guilford, who broke into the lower part and behaved in a very riotous manner, swearing they would release the Deans or pull down the building, and at the same time uttering many violent threats against Whiting. This tumult was owing to the language which Whiting had used to his prisoners in the pre- sence of Wells, and which Wells had reported on his return home. When the mob had been informed that the Deans had not been treated with the violence which had been threatened, they made no further trouble.
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HISTORY OF EASTERN VERMONT.
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On the morning of the 6th, Wells, who had received a message from Sheriff Arms, announcing the tumult of the pre- ceding night, immediately mounted his horse, and with the sheriff rode to the place where Whiting and his party had lodged. Being assured that the people had dispersed without committing any acts of violence, and having collected such information as suited their magisterial purposes, they returned. Warrants were soon after issued for the arrest of the three principal leaders, and two of them having been taken, were bound by recognizance to appear at the next general session of the county court. Wells declared openly that those engaged in the disturbance ought to be severely punished, and that he would do all within his power to bring the guilty ones to justice.
Grout, who had left Hinsdale on Sunday morning, arrived at Springfield the next day, and informed Capt. Dean of what had befallen his two sons, of their extreme destitution, and of the determination of Whiting to leave with them for New York by the way of the woods on the noon of the following Tuesday. On account of a cause depending before the inferior court of Common Pleas then sitting at Springfield, to which Dean was obliged to attend, he was not able to reach Hinsdale until Tuesday night. Finding that Whiting had left with the prisoners, Dean proceeded to Brattleborough, where on Wed- nesday morning he saw Wells. Understanding by him and others, that the process issued from the court of Admiralty was against him as well as his sons, he, by Wells's advice, set out for New York to surrender himself to the Marshal, and take trial with his sons. When within about thirty miles of that city, he overtook Whiting, who placed him in custody, and on arriving at the place of destination, lodged him and his sons in jail.
On the application of Capt. Dean and his sons, James Duane of the city of New York, who believed the prosecution to be hard and unjust, undertook their defence as Proctor in the Vice-Admiralty court. Being of opinion that they could not be held to bail on such a prosecution, he moved that they should be discharged on entering their appearance. This motion tlie conrt overruled, and ordered them to be held to bail in a large sum. Not being fortunate enough to procure the specified bail, they were imprisoned. Finding that they should be utterly unable to pay the expenses of a trial, they petitioned the judge of Admiralty to give judgment against them, which
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1769,1770.]
was done. Being equally unable to pay the fines and costs which were imposed on them as the result of their default, they were recommitted to prison, where they remained for several months. During this time, as the little money they had brought with them, and received from the sale of their horses, was expended, and as they had no means of purchasing food, they desired Duane to intercede with the judge of the Admiralty in their behalf, and by his order to procure for them an allowance of bread and water, to which they were entitled as prisoners at the suit of the Crown. The judge having declared that he had no right to direct such a supply, Capt. Dean entered into negotiations with his friend Wells for the sale of his effects on his farm at Windsor, in order to raise money therefrom for the support of himself and his sons. In answer to Wells, who con- sulted with him on the subject, Duane expressed his approba- tion of the act as one that was both legal and philanthropic. That no disadvantage through misrepresentation or otherwise, might attach to Wells on account of the share which he would bear in the transaction, Duane waited upon the judge of the Admiralty, and laid the whole matter before him. The judge made no objection to the proceedings, nor did he in any man- ner evince his dislike thereto. In consequence of this informa- tion, Capt. Dean, on the 14th of November, pending the suit, gave Wells a bill of sale of all his household goods and personal estate, the proceeds from which enabled him to support him- self and his sons in prison. When the trial came on, the judge having decided that the defendants had been guilty of the charges alledged against them, and therefore had incurred the penalties of the statute in that case provided, directed an execution against their goods and chattels, but these having been previously alienated to Wells, the recovery of the penal- ties was rendered impossible.
While matters were in this condition, Governor Wentworth, on the 10th of February, 1770, wrote to Lieutenant-Governor Colden, condemning in strong terms Wells's conduct. After summing up his misdemeanors, he concluded on that subject in these words : " Attempting to mislead an officer, countenancing open, daring trespassers, and aiding in throwing the charge of their prosecution on the Crown, are so heinous in any subject, but in a judge so highly ruinous and dishonorable to the service, that I think it my duty to the king, herein again to assure you, that every public mischief must result to the department of
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Surveyor of Woods, if Mr. Wells cloath'd with the power and influence of magistracy, may still be an example of counteract- ing and frustrating such useful and essential laws with impunity." The remainder of the letter was occupied with eulogiums on the "just, legal, and impartial administration of the court of Vice-Admiralty," regrets at the unhappy state of feeling then existing among the inhabitants of the New Hampshire Grants, and promises of assistance in supporting law and order.
Accompanying this communication was a memorial of the same date from Governor Wentworth as Surveyor-General to Lieutenant-Governor Colden and the Council. In defence of the proposal which was to follow, he declared that by "the express terms" of the charters issued "under the public seal of New Hampshire," lands were to revert to the king, "with right of re-entry" when those who held them were guilty of cutting the pine trees with which they abounded, without first obtaining a license. In conformity with this stipulation, he desired that the lands in Windsor where the trespass had been committed, might be taken from the Deans and escheated to the king. He further remarked, that by such a course the laws for the preservation of his Majesty's masting timber would be more effectually enforced. If other measures, he added in conclusion, shall be pursued, "that penalty of the statute which was wisely formed, and which by the experience of nearly half a century has in other provinces been found effectual," will be eluded and defied.
These documents having been read before the Council of New York on the 14th of March, an answer to that portion of them in which Wells was charged with misconduct, in advanc- ing money on the personal effects of the Deans, was deemed just and proper. Governor Wentworth was in consequence informed on the 21st of March, "that the persons who assigned the goods were then in prison; that having no means of sub- sistence, Mr. Duane, their counsel at law, advised the assign- ment of the goods as necessary for their support, which were of small value, and were sold to Mr. Wells, and the monies applyed accordingly; that Mr. Wells declined taking the goods, until Mr. Duane assured him he might do it with safety ; and that his acceptance of the goods was therefore rather to be considered as an act of humanity, than prejudicial to the Crown."
On the 14th of August, a committee consisting of William
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REPORT OF THE COMMITTEE.
1770.]
Smith, Henry Cruger, and Henry White, were appointed by an order of the Governor and Council of the province of New York, to consider the letter and memorial of Governor Went- worth, and the accompanying documents. In answer to the first charge brought against Mr. Wells, namely, that he endeavor- ed to frustrate the arrest of certain persons lawfully prosecuted, the committee, after examining his own declaration and the depositions of a number of witnesses, replied in these words :- "We cannot see sufficient cause to advise, either a removal of Mr. Wells from the places he holds, or any prosecution against an officer, who we are informed sustains a fair character, even in a district where there are not wanting some persons, to whom, from their attachment to the unjustifiable claim of the province of New Hampshire, and his zeal in asserting the right and jurisdiction of this colony, he must be peculiarly obnoxious." To the other charge alledged against Mr. Wells, namely, that he had taken a conveyance of the effects of the offenders, pending the suit, to prevent a recovery of the penalty which they had incurred, the committee made answer, that " parties prosecuted, had by law a right to convey away their effects, and Mr. Wells's acceptance of the grant, with the cau- tion, and in the circumstances, and for the ends proved by Mr. Duane, we cannot conceive to be in the least degree criminal." The committee further advised, that copies of the depositions then in their hands should be sent to Mr. Wentworth, “in justification of the conduct of this government, and to show his Excellency our readiness to make diligent examination into the matters of his complaint."
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