USA > Vermont > History of eastern Vermont, from its earliest settlement to the close of the eighteeth century with a biographical chapter and appendixes > Part 35
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* These were Israel Smith of Brattleborough ; Charles Kathan, William Perry, Noah Sabin Jr., and Joseph Lusher of Putney ; Joseph Ide, Ichabod Ide Jr., and - Wilcox of Westminster .- MS. Court Records.
340
HISTORY OF EASTERN VERMONT.
[1779.
ing of the county committee composed of New York adherents, was convened at Brattleborough on the 25th of May. An account of the events of the preceding week was prepared by Samuel Minott, the chairman on that occasion, and was for- warded to Governor Clinton by an express. The prayer for relief was of a nature not to be mistaken. If aid is not ren- dered, " our persons and property," said they, "must be at the disposal of Ethan Allen, which is more to be dreaded than death with all its terrors."*
An adjourned session of the superior court was held at West- minster on the 26th of May. Moses Robinson of Bennington, presided as chief judge, assisted by John Shephardson of Guil- ford, John Fasset Jr., of Arlington, Thomas Chandler Jr., of Chester, and Capt. John Throop of Pomfret, side judges. To guard against interruption during the session, the people of the town who supported the jurisdiction of Vermont forcibly seized the public stock of gunpowder, amounting to one hundred pounds, which had been provided by the state of New York, and placed twenty-five pounds of it in the hands of their friends. Preliminaries having been arranged, the prisoners, under a strong guard, were marched from the jail-rooms in the lower part of the county hall to the court-room in the second story. Noah Smith, the state's attorney, exhibited a complaint against the delinquents, in which he stated, that they were assembled at Putney on the 28th of April previous, " in a riotous and unlaw- ful manner ;" that they, at that time, made an assault upon one William Mc Wain, " a lawful officer in the execution of a lawful command," and rescued out of his hands and possession two cows, which he had taken by legal measures. He charged that such "wicked conduct" was a flagrant violation of the com- mon law of the land, and contrary to the force and effect of a statute law of the state, entitled, " An act to prevent riots, dis- orders, and contempt of authority within this state, and for punishing the same."t
* Papers relating to Vt. Controversy, in office Sec. State N. Y., p. 13.
t As an example of the severity of the earlier laws of Vermont, the act referred to in the text is given entire. It was passed at the session of the General Assem- bly holden at Bennington, in February, 1779, and, with the exception of its title, is as follows :-
" Whereas, breaking open gaols, rescuing prisoners, &c., are much to the da- mage of civil society,
" Which to prevent,
" Be it enacted, and it is hereby enacted, by the representatives of the freemen
341
COURSE OF THE IMPRISONED YORKERS.
1779.]
Much time having been occupied in perfecting the arrange- ments incident to the occasion, and the day being far spent, the court announced a recess until the following morning. On their return to the jail, the prisoners held a consultation in order to decide upon the course which in the present emergency could be pursued with the greatest advantage. Of their number was Micah Townsend of Brattleborough, a lawyer of ability. By his advice they addressed a petition to the judges of the court, in which they set forth the peculiarity of their situation, and the want of impartiality in the proceedings then in progress against them. They averred that on account of the recency of their apprehension, and the strictness of their confinement, they had been unable to procure any writings or witnesses to substan- tiate the pleas which they might wish to offer, and, further, that they could not be "justified to their consciences and to the world," should they omit any "prudent and lawful measures to acquit themselves." They also desired the privilege of obtain- ing counsel from another state, to plead their several causes.
of the state of Vermont, in General Assembly met, and by the authority of the same, that if any person, or persons, shall impede or hinder any officer, judicial or executive, civil or military, under the authority of this state, in the execution of his office -- on conviction thereof before the superior court of this state, [the offender] shall be whipped on the naked back, not exceeding one hundred lashes for the first offence, and pay all costs and damages that shall accrue from such disorder, beside cost of prosecution ; and, for want of estate to pay said costs, damages, &c., the offender may be bound in service to any subject of this state, for such time as shall be judged by said court to be sufficient to pay said costs, damages, &c. And said court are hereby authorized to bind said delinquent.
" Be it further enacted, by the authority aforesaid, that if any person shall be guilty of a second offence of the like nature, and shall be convicted thereof, he shall be branded with the letter C on the forehead and shall be whipped on the naked back, not exceeding one hundred lashes ; to be repeated every time of con- viction.
" Be it further enacted, by the authority aforesaid, that if any person or per- sons, either directly or indirectly, shall break open, or aid or assist in breaking open, any gaol, or place of confinement, wherein any prisoner or prisoners may be confined by the authority of this state, on conviction thereof, [the offender] shall be whipped on the naked back, not exceeding one hundred lashes, and be branded on the forehead with the letter B, and pay a fine, not exceeding one hun- dred pounds, and all costs and damages that may accrue from such disorder, toge- ther with cost of prosecution ; and for want of estate to pay said costs and da- mages, the offender may be bound in service as aforesaid.
"That the superior court, before the dismission of such delinquent, may call on him to give bonds, in surety, not exceeding three thousand pounds, for his good behaviour ; and in case such delinquent shall refuse to give such surety, said court are hereby empowered to confine such delinquent in any of the gaols in this state."-Slade's Vt. State Papers, p. 300.
342
HISTORY OF EASTERN VERMONT.
[1779.
To obtain these ends, they prayed that the court might be adjourned, for at least one month. To this petition were sub- scribed the names of twenty-eight of the prisoners. Its only effect was to procure as counsel for the delinquents, Stephen Row Bradley, then of Bennington, the temporary clerk of the court.
When the court resumed business on the morning of the 27th, the state's attorney having become satisfied of his inability to sustain the complaints which he had instituted against three of the prisoners, John Kathan, John Kathan Jr., and Lieut. Daniel Kathan, all of Dummerston, entered a nolle prosegui in their cases and withdrew the suits. At the same time the defendants' attorney, Mr. Bradley, presented a motion to quash the indict- ments preferred against Stephen Greenleaf Jr., of Brattle- borough, Joseph Goodhue of Putney, and Josiah White, on the ground of the nonage of the parties. The motion was granted, and the court was about to proceed with the trial of the remain- ing prisoners, when an unexpected interruption took place. Ethan Allen, who, with his men, had been engaged at West- minster in assisting the sheriff and guarding the prisoners, had watched with interest and satisfaction the transactions of the preceding day, and had expressed great pleasure at the manner in which the goddess of justice seemed to be preparing to pu- nish the rebellious Yorkers. He was not present at the com- mencement of the second day's session, but having heard that some of the prisoners were obtaining their discharge, he resolved to stop such flagitious conduct, and teach the court their duty. Accoutred in his military dress, with a large cocked hat on his head profusely ornamented with gold lace, and a sword of fabu- lous dimensions swinging at his side, he entered the court room breathless with haste, and pressing through the crowd which filled the room, advanced towards the bench whereon the judges were seated. Bowing to Moses Robinson who occupied the chief seat, and who was his intimate friend, he commenced a furious harangue, aimed particularly at the state's attorney, and the attorney for the defendants.
The judge, as soon as he could recover from his astonishment, informed the speaker that the court would gladly listen to his remarks as a private citizen, but could not allow him to address them, either in military attire, or as a military man. To this information Allen replied by a nod, and taking off his chapeau threw it on the table. He then proceeded to unbuckle his
343
SINGULAR PROCEEDINGS OF ETHAN ALLEN.
1779.]
sword, and as he laid it aside with a flourish, turned to the judge and in a voice like that of a Stentor, exclaimed,
" For forms of government, let fools contest ; Whate'er is best administer'd, is best."*
He then turned to the audience and having surveyed them for a moment, again addressed the judge, as follows :- " Fifty miles, I have come through the woods with my brave men, to support the civil with the military arm; to quell any disturb- ances should they arise; and to aid the sheriff and the court in prosecuting these Yorkers-the enemies of our noble state. I see, however, that some of them, by the quirks of this artful lawyer, Bradley, are escaping from the punishment they so richly deserve, and I find also, that this little Noah Smith is far from understanding his business, since he at one moment moves for a prosecution, and in the next wishes to withdraw it. Let me warn your Honor to be on your guard, lest these delinquents should slip through your fingers, and thus escape the rewards so justly due their crimes." Having delivered himself in these words, he with great dignity replaced his hat, and having buckled on his sword, left the court room with the air of one who seemed to feel the weight of kingdoms on his shoulders. After a short interval of silence, business was again resumed.
Of those against whom warrants had issued, thirty were now before the court on trial. These were Col. Eleazer Pat- terson of Hinsdale ; Maj. Elkanah Day, Capt. Michael Gilson, Lieut. Medad Wright, Benjamin Whitney, Bela Willard, Joseph Willard, Bildad Easton, John Norton, and Deacon John Ses- sions of Westminster ; Lieut .- Col. John Sargeants, Lieut. James Blakeslee, Lieut. Samuel Root, Micah Townsend, Timothy Church, and Benjamin Butterfield of Brattleborough ; Capt. James Clay, Lieut. James Clay Jr., Lucas Willson, Ephraim Clay, Daniel Sabin, Noah Sabin, William Pierce, Noalı Cush- ing, Samuel Wheat, Francis Cummings, James Cummings, Thomas Pierce, Joseph Jay, and Thomas Nelson of Putney. They were generally men of note and influence, and among
* Pope's Essay on Man, epistle iii. vs. 303, 304. Referring to the sentiment contained in these lines, John Adams once observed, "Pope flattered tyrants too much when he said,
" For forms of government, &c."
The Life and Works of John Adams, iv. 193.
.
344
1
HISTORY OF EASTERN VERMONT.
[1779.
them were some of greater ability than those who were to pass judgment upon their conduct. In answer to the charges prefer- red against them, they pleaded in bar that although by common law they might be held to answer a portion of the information, yet they could not be held to answer that part of it founded on the statute, since it was not in their power to know the statute at the time when the crimes were said to have been committed, as it had not then been promulgated .* This statement they de- clared themselves ready to verify. The court decided the plea in bar to be sufficient, and ordered that part of the information brought on the statute to be dismissed.
The delinquents then pleaded, to general issue, not guilty, and gave in evidence that they were subjects of the state of New York, and that the acts charged against them in the information as offences, were done by virtue of authority granted them by that state. Here the defence rested. Witnesses were then examined on the part of Vermont, and the cause was returned to the judges, who after due consideration pronounced the defendants guilty. As a punishment, they were all mulcted, the state being the recipient of the proceeds. Eleazer Patterson, John Sargeants, Elkanah Day, and James Clay, were fined, each, £40 lawful money, Michael Gilson, Lucas Nelson, and Timothy Church, each, £25. Micah Townsend, James Blakeslee, James Clay Jr., Benjamin Whitney, Samuel Root, John Norton, and John Sessions, each, £20. Ephraim Clay, Medad Wright, Bela Willard, Joseph Willard, and Bildad Easton, each, £10. Daniel Sabin, Noah Sabin, William Pierce, Noah Cushing, Samuel Wheat, Francis Cummings, James Cummings, Joseph Jay, Thomas Pierce, and Thomas Willson, each, £3. Benjamin Butterfield, £2. In addition to this the costs of prosecution,
* The law referred to, and which is given in full in a previous note, was passed at Bennington in the month of February preceding with many others, but was not published until several months had elapsed. In a letter from Ira Allen, dated at Norwich, April 19th, 1779, and addressed "To the inhabitants of the state of Vermont," occur these words :- " As the laws of this state were com- mitted to my care to see to the printing of [them], I have to inform, that the printers have been some time engaged in that business, and will not attend to any other until that is accomplished. But to print them, really will take a consider- able time, and cannot be done as soon as was expected, but depend, that they will be ready to deliver to the Assembly at their next session at Windsor." The session referred to, commenced on the 2d of June. The offences for which the Yorkers were tried were committed on the 28th of April, more than a month before the promulgation of the statute.
345
SENTIMENTS OF IRA ALLEN.
1779.]
amounting to £1,477 18s., were divided equally among the delinquents .*
In commenting upon these events, Ira Allen in a letter to Benjamin Bellows of Walpole, written from Westminster, expressed what may be regarded as the sentiments of the more moderate portion of the partizans of Vermont. "It is not our design," said he, "to treat the inhabitants of this county with severity, but with as much lenity as the nature of the case will admit. Yet the authority of this state must be supported, for commissions from two different states can no longer subsist together. We mean not to boast of our victory over those gentlemen that were in favour of New York in this county, but hope to make them our friends, and have the pleasure of treating them as such. We mean this movement as a defiance to the old government of New York, with whom we have long contended for our properties."
The effect of these disturbances was visible not only in the conduct of the members of the two parties towards one another, but also in the measures adopted by the Legislature of Vermont. When on the 2d of June, the General Assembly held a special session at Windsor, this effect was made especially apparent. The act which was then passed, entitled, " An act to prevent persons from exercising authority, unless lawfully authorized by this state," was one of the direct results of the attempt which had been made by Col. Patterson to obey the directions of the state of New York. No one could mistake the intention of the government of Vermont, when it uttered its edicts in terms as plain and decided as these :-
" Whereas there are divers persons within this state, who have opposed, and do continue to oppose the government there- of ; and who do, by every way and means in their power, endea- vor to obstruct the free exercise of the powers of government within the same :
" Which mischief to prevent,
" Be it enacted, and it is hereby enacted, by the representatives of the freemen of the state of Vermont, in General Assembly met, and by the authority of the same, that if any persons with- in this state, except continental officers, shall, after the first day of September next, accept, hold, or exercise any office, either
* MS. Court Records. George Clinton Papers in N. Y. State Lib., vol. vii. docs. 2231, 2249. Doc. Hist. N. Y., iv. 957-966. Slade's Vt. State Papers, 305- 312. Narratives of Old Men.
346
HISTORY OF EASTERN VERMONT.
[1779.
civil or military, from or under any authority, other than is or shall be derived from this state, and be thereof duly convicted, they shall, for the first offence, pay a fine not exceeding £100 lawful money, according to the discretion of the court which may have cognizance thereof; and for the second offence of the like kind, shall be whipped on the naked body not exceeding forty stripes, according to the discretion of the court before whom they are prosecuted; and for the third offence shall have their right ear nailed to a post, and cut off, and be branded in the forehead with the capital letter C on a hot iron. This act to continue in force until the rising of the Assembly in October, 1780, and no longer."
In order to express their approbation of the manner in which the late opposition of the Yorkers had been resisted, the As- sembly appointed Edward Harris of Halifax, Silas Webb of Thetford, and Col. John Strong of Dorset, a committee to wait on his Excellency the Governor, and the members of the Coun- cil, and convey to them the thanks of the Assembly for their promptness in raising and sending the posse comitatus into Cumberland county in the month of May previous, "for the purpose of apprehending the rioters who were tried at West- minster." As a reward for his invaluable services, Ethan Allen was, on the 3d of June, created a Brigadier General, and the sum of 48s. lawful money per diem, was voted to each of those who had accompanied him or the other colonels, for the purpose of assisting the sheriff. At the same time means were taken to organize militia companies. As the initiative in this undertaking, the males in the town of Whiting, between the ages of sixteen and sixty, were ordered to choose a captain, a lieutenant, and an ensign, and the same directions were given to the inhabitants of Newfane. Owing to a representation made to the Assembly charging the enemies of the state resid- ing in Cumberland county with being in possession of " con- siderable stocks of ammunition," the selectmen of the different towns were ordered to make application for, and receive every- thing of this description that might be held in their respective districts. In case of resistance, they were authorized to seize the contraband articles. No one was excused from affording aid in carrying this law into execution.
In the Council, measures more conciliatory in their nature were adopted. Maj. Stephen Row Bradley was appointed to prepare a proclamation "to be issued by his Excellency,"
347
GOV. CHITTENDEN'S PROCLAMATION.
1779.]
relative to the disaffected inhabitants of Cumberland county. The instrument was drawn in conformity with the sentiments of the Council. On the 3d of June it received the official sanction in the following form :-
" By His Excellency Thomas Chittenden, Esquire, Governor, Captain General, and Commander in chief in and over the State of Vermont.
" A Proclamation.
" Whereas, sundry persons inhabitants of this state, forget- ting that great tie of allegiance that ought to bind every sub- ject in a faithful obedience to that power which protects life, liberty, and fortune ; being instigated, partly through their own mistaken notions of government; not considering that all power originates from the people ;* and building on a false reason, that a public acknowledgment of the powers of the earth is essential to the existence of a distinct, separate state ; but more especially being deceived and influenced by certain persons, { who have crept in privately to spy out and overturn the liberties of this state, purchased at the dearest rate, who acting under pretence of power assumed by a neighboring sister state, never derived from God or nature,¿ have imposed their tenets on the credulous, whereby some have been led to follow their pernicious ways, in consequence of which, some of my faithful subjects have been traduced to oppose the authority of this state, and obstruct the course of civil law to the disturb- ance of the peace, thereby incurring the penalties of that great rule of right, which requires obedience to the powers that are.
" And whereas the supreme authority of this state, are ever willing to alleviate the miseries of those unhappy subjects, who transgress laws through mistaken notions, in remitting the penalties thereof; and inasmuch as equal punishments, in this case, cannot be distributed§ without punishing the righteous with the wicked.
" I have therefore thought fit, by and with the advice of Council, and at the desire of the representatives of the freemen
The form of the proclamation given in the text, is taken from the published copy. In the original draft the words, " whose voice is the voice of God," was inserted after the word "people."
+ In the original, this passage ran, " deceived and led on by certain persons ordained of old to condemnation."
# In the original, these words were inserted at this point, " being mostly enemies to the prosperity of America .. "
§ In the original, the words "inasmuch as the tares in this world cannot be separated from the wheat," are used in place of the sentence commencing "inas- much as," in the text.
348
HISTORY OF EASTERN VERMONT.
[1779.
of this state, in General Assembly met, to make known and declare this my gracious design of mercy to every offender, and do hereby publish and declare to all persons, residing within this state, a full and free pardon of all public offences, crimes and misdemeanors heretofore committed within the limits of the same, against the honor and dignity of the free- men thereof; remitting to all and singular, the persons afore- said, all penalties incurred for breaches of the peace, such as riots, mobs, tumultuous assemblies, contempt of and opposition to authority, excepting only the crimes of high treason, mis- prision of treason, and other capital offences, committed since the fifteenth day of January, 1777 ;* and all persons indicted, informed against, or complained of for any of the offences afore- said, committed before this date, may plead this proclamation in discharge thereof, provided nothing herein contained be con- strued to extend to any person to whom judgment has already been rendered, nor to bar any person from recovering private damages, anything contained herein to the contrary notwithstanding.
" And I do further assure the subjects of this state, that it is not the design of government to take from any one the peace- able enjoyment of his own possessions, acquired by the sweat of his brow, whatever falsehoods, wicked and designing men may have invented to disquiet the minds of the faithful subjects of the state of Vermont.t
" Given under my hand and seal at arms, in the Council Chamber at Windsor, on the third day of June, 1779, in the third year of the independence of this and the United States of America.
" Thomas Chittenden. " By His Excellency's command. "Jonas Fay, Secretary, pro tem. " God save the People."}
The words " and other capital offences, committed since the fifteenth day of January, 1777 " are wanting in the original. The words following " misprision of treason" in the original are, " against this, or the United States."
+ In the original draft, this paragraph was introduced by the following sen- tence: " And I do further recommend and enjoin upon every denomination of men, strict obedience to the laws; as the executive authority are determined to carry into execution every good and wholesome law made by the freemen of this State." Other verbal differences not here noted, may be observed by comparing the proclamation in the text with the original draft published in Slade's Vt. State Papers, pp. 556, 557.
# MS. letter of Ira Allen to Benjamin Bellows. Slade's Vt. State Papers, pp. 389, 390. Records General Assembly Vt. Records Council Vt.
349
VARIOUS PUBLICATIONS BY THE COUNCIL.
1779.]
By a resolution of the Council passed on the 7th of June, this proclamation, the orders of the Governor to Col. Ethan Allen dated the 6th of May, 1779, and an extract from the records of the adjourned session of the superior court, held at Westminster on the 26th of the same month, were pub- lished together, in order that the people might not be unin- formed concerning the measure which had been taken to uphold the authority of the state.
On being apprised of the disturbances which had occurred in Cumberland county, Governor Clinton, on the 29th of May, transmitted by express, the papers containing the information to John Jay the president of Congress, with a request that he would lay them before Congress without delay. By the same conveyance he wrote to the New York delegation, telling them that the " Vermont business " had reached a crisis, and assuring them of his confidence in their exertions to obtain the opinion of Congress on that subject at the earliest moment possible. He informed them that the state Legislature would meet on the 1st of June, and would probably adopt decisive measures. At the same time he assured them that he should issue his orders to the militia, and make the necessary arrangements for supporting the injured dignity of the state; and further, that he should conceive it his duty to order a force of a thousand men who had been destined for the defence of the frontiers, to march to Brattleborough for the protection of that and the adjacent towns, unless the interposition of Congress should render such a measure unnecessary .*
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