USA > Vermont > History of eastern Vermont, from its earliest settlement to the close of the eighteeth century with a biographical chapter and appendixes > Part 58
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From the laws enacted at the fourth session of the General Assembly, held in February, 1779, a very correct idea may be formed of the determined character of the people of Vermont. No one can fail to recognise the fact, as developed in these statutes, that they loved liberty, hated oppression, and deemed it necessary to visit crime with punishments of the severest nature. By the first act passed at this session, it was decreed, as has been before stated, that the constitution should be " for- ever considered, held, and maintained, as part of the laws of this state." In the preamble of the same act, it was maintained that "the free fruition of such liberties and privileges as humanity, civility, and Christianity call for, as due to every man, in his place and proportion, without impeachment and infringement, hath been, and ever will be, the tranquillity and stability of churches and commonwealths ; and the denial or deprival thereof, the disturbance, if not the ruin of both.' Agreeable to these positions, it was enacted by statute, that " no man's life shall be taken away ; no man's honor or good
574.
HISTORY OF EASTERN VERMONT.
[1779.
name stained ; no man's person shall be arrested, restrained, banished, dismembered, nor any ways punished ; no man shall be deprived of his wife or children ; no man's goods or estates shall be taken away from him, nor any ways indamaged under colour of law, or countenance of authority, unless it be by vir- tue of some express law of this state, warranting the same, established by the General Assembly ; or, in case of the defect of such law in any particular case, by some plain rule war- ranted by the Word of God."
That the "Word of God" and the " Connecticut law book" were the sources, whence were drawn those ideas which pre- vailed in the formation of the penal statutes of Vermont, may be readily seen from an examination of the statutes themselves. "The early criminal code of Connecticut," observes a late writer,* " recognized twelve capital offences, to which two more were afterwards added, and all of which were founded on the strict precepts of the Levitical law." The criminal code of Vermont, adopted in February, 1779, recognized nine offences punishable by death. These were treason; murder; arson; rape; bestiality ; sodomy ; bearing false witness against a person for the purpose of causing his death ; mutilation, either by mali- ciously cutting out or disabling the tongue, or by putting out one or both of the eyes, "so that the person is thereby made blind," or by emasculation ; and blaspheming "the name of GOD the FATHER, SON, or HOLY GHOST, with direct, express presumption, and high-handed blasphemy," or cursing "in the like manner." +
Other crimes were regarded with a sternness approaching almost to that which characterized the Draconian system. Manslaughter was punished by the forfeiture to the state of " all the goods and chattels" of the manslayer; by whipping " on the naked body;" by branding the hand " with the letter M on a hot iron ;" and by disabling the offender " from giving verdict or evidence" in any court in the state. Persons con- victed of the crime of incest were compelled to sit " upon the gallows the space of one hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common gaol," were to be " severely whipt, not
* See " Sketches of the Lives and Judicial Services of the Chief Justices of the Supreme Court of the United States," by George Van Santvoord, p. 223.
+ Acts and Laws of Vt., 1779, pp. 1, 2, 5, 73, 74, 94. Slade's Vt. State Papers, pp. 267, 287, 288, 291, 292, 354, 355, 375.
575
THE LAW AGAINST ADULTERY.
1779.]
exceeding thirty-nine stripes each." Other punishments for this offence were stated in these words :- " Persons so offend- ing, shall, forever after, wear a capital letter I, of two inches long and proportionable bigness, cut out in cloth of a contrary colour to their cloaths, and sewed upon their garments, on the outside of their arm, or on their back, in open view. And if any person or persons, convicted and sentenced as aforesaid, for such offence, shall, at any time, be found without their letter so worn, during their abode in this state, they shall, by warrant from any one assistant or justice of the peace, be forthwith ap- prehended, and ordered to be publicly whipt, not exceeding fif- teen stripes, and from time to time, or as often as they shall so offend." Incestuous marriages were also declared void, and all children born of such connection were "forever disabled to inherit by descent, or by being generally named in any deed or will, by father or mother."
In the statute "against and for the punishment of adultery" the following language was held :- " Whosoever shall cominit adultery with a married woman, or one betrothed to another man, both of them shall be severely punished by whipping on the naked body, not exceeding thirty-nine stripes, and stigma- tized, or burnt on the forehead with the letter A, on a hot iron ; and each of them shall wear the capital letter A, on the back of their outside garment, of a different color, in fair view, dur- ing their abode in this state. And as often as such convicted person shall be seen without such letter, and be thereof con- victed before an assistant or justice of the peace in this state, [he] shall be whipt on the naked body, not exceeding ten stripes." The same punishments were denounced against those who should be guilty of polygamy, and polygamous marriages were declared " null and void." At the session of the General Assembly in October, 1783, the statutes against adultery and polygamy were re-enacted in a more definite form, but witlı penalties attached similar to those above recited.
House-breaking and highway robbery were punished with great severity. "Whosoever shall commit burglary," these were the words of the statute, " by breaking up any dwelling- house, or shop, wherein goods, wares, and merchandize are kept ; or shall rob any person in the field or highway-such person, so offending, shall, for the first offence, be branded on the forehead with the capital letter B, on a hot iron, and shall have one of his ears nailed to a post and cut off; and shall also
576
HISTORY OF EASTERN VERMONT.
[1779.
be whipped on the naked body fifteen stripes. And for the second offence, such person shall be branded as aforesaid, and shall have his other ear nailed and cut off as aforesaid, and shall be whipped on the naked body twenty-five stripes. And if such person shall commit the like offence a third time, he shall be put to death as being incorrigible."*
In the law "against counterfeiting bills of public credit, coins, or currencies," the penalties denounced upon those guilty of this offence were expressed in these words :- " Every person or persons, so offending, shall be punished by having his right ear cut off, and shall be branded with the capital letter C, on a hot iron, and be committed to a work-house, there to be con- fined and kept to work, under the care of a master, and not to depart therefrom, without special leave from the Assembly of this state, until the day of his death, under the penalty of being severely whipped by order of any court, assistant, or justice, and thereupon to be returned to his former confinement and labor." In addition to these punishments the estate of the offender was declared forfeited to the state. The law for pu- nishing those guilty of hindering any officer, "judicial or exe- cutive, civil or military," in the performance of his duty, has been previously recited.+ By the law enacted for the purpose of " preventing and punishing riots and rioters," offenders were to be fined a sum not exceeding £200, and imprisoned for not more than six months, or whipped " not exceeding forty stripes." Perjury was punished by a fine of £50, and imprisonment for six months. The law further provided, in case the "offender or offenders, so offending, have not goods and chattels to the value of £50, that then he or they shall be set in the pillory by the space of two hours, in some county town where the offence was committed, or next adjoining to the place where the offence was committed; and to have both his ears nailed and cut off ; and from thenceforth be discredited, and disabled forever to be sworn in any court whatsoever, until such time as the judg- ment shall be reversed."}
Any person guilty of forgery was compelled to stand in the pillory on " three several days of public meeting, not exceeding
* Acts and Laws of Vt., 1779, pp. 3-5, 84, 93. Slade's Vt. State Papers, pp. 290, 291, 366, 374, 375, 473-475.
+ Ante, pp. 340, 341.
# Acts and Laws of Vt., 1779, pp. 13, 60, 61, 96. Slade's Vt. State Papers, pp. 300, 333, 346-348, 377.
577
PUNISHMENTS FOR THEFT.
1779.]
two hours each day ;" to pay double damages; and was alsc rendered incapable of giving "any evidence or verdict in any court, or before any magistrate or justice of the peace." By the act "for the punishment of lying," it was declared "that every person of the age of discretion, which is accounted four- teen years, who shall wittingly and willingly make or publish any lie, which may be pernicious to the public weal, or tend to the damage or injury of any particular person, or to deceive and abuse the people with false news or reports, and be thereof duly convicted before any court, assistant, or justice of the peace, shall be fined for the first offence 40s., or if unable to pay the same, then such person shall sit in the stocks not ex- ceeding two hours." For the second offence, the delinquent was to be fined " double the aforesaid sum," or to be "whip- ped on the naked body, not exceeding ten stripes." The third offence was to be punished by " double the fine for the second," or by "twenty stripes ;" and for each succeeding offence the fine was to be increased 10s., or five stripes. It was under- stood, however, that the number of stripes was in no case to exceed thirty-nine.
Theft, provided the value of the property stolen was less than £6, was punished by compelling the offender to make restitu- tion to the owner in a threefold ratio, and by a discretionary fine, not to exceed £10. If the value of the property was £6 or more, the thief, in addition to the triple forfeiture, was "punished by whipping, not exceeding thirty-nine stripes." For the purpose of meeting the contingency of poverty, it was further ordained :- " If any such offender be unable to make restitution, and pay such three-fold damages, such offender shall make satisfaction by service; and the prosecutor shall be, and is hereby empowered to dispose of such offender in service, to any subject of this state, for such time as he shall be assigned to such prosecutor by the court, assistant, or justice, before whom the prosecution shall be." Cursing and profane swearing were punished by a fine of 6s., or by sitting in the stocks " not exceed- ing three hours, and not less than one hour," and paying the cost of prosecution. He who allowed gaming in any form on his premises, was punished by fine, as was also he who engaged in this unlawful sport, or in horse-racing .*
* Acts and Laws of Vt., 1779, pp. 35, 36, 44, 80, 88, 89, 92. Slade's Vt. State Papers, pp. 324, 331, 361, 362, 369, 370, 373.
37
578
HISTORY OF EASTERN VERMONT. [1779.
For the purpose of preventing " unseasonable night-walking, and for the punishing of disorders committed in the night sea- son," a statute was enacted, by the terms of which it was declared, "that if any persons that are under the government of parents, guardians, or masters ; or any boarders or sojourn- ers, shall convene, or meet together, or be entertained in any house, without the consent or approbation of their parents, guardians, or masters, after nine o'clock at night, any longer than to discharge the business they are sent about; or shall meet together, and associate themselves in company or com- panies, in streets or elsewhere after the time aforesaid, and shall commit any disorder, or make any rout at any time in the night season-each person so offending shall forfeit 20s. for every such offence." It was also provided by this act, that if any person suspected of being engaged in causing disturb- ance at night, should not be able to give "a satisfactory account" of himself at the time the disturbance occurred, and prove that he " had no hand " in it, he should be liable for all damage arising therefrom.
Power was given to the county courts to license suitable per- sons to keep houses of public entertainment. At the same time, means were taken to prevent the abuses which might arise from the indiscriminate sale of intoxicating liquors. Whenever it should appear to the officers of a town that any person residing within the town was " a tavern-haunter," or that he spent " his time idly" at houses of entertainment, they were authorized "to cause the name of such tavern-haunter to be posted at the door of every tavern in the same town, by setting up a certifi- cate, under their hands, forbidding every tavern-keeper in such town," under penalty of a fine of £3, and forfeiture of his license- bond, to entertain, or suffer any tavern-haunter so posted, "to have or drink any strong liquors of any kind whatsoever, in or about his house," until the prohibition should be removed. In case the person warned in the manner aforesaid, should refuse to lay aside his " evil practises," authority was given to the town officers to require surety for his good behavior. Should the offender fail to find surety, he was required "to pay a fine of 20s. or sit in the stocks for the space of two hours, on some pub- lic time or season."
None except licensed keepers of houses of public entertain- ment were allowed to vend liquors " by a less quantity than a quart." Any person "duly convicted of keeping a tippling-
579
1779.] PENALTIES FOR DRUNKENNESS AND SABBATH-BREAKING.
house, or of selling strong beer, ale, cider, perry, metheglin, wine, rum, or mixed drink, or any strong drink whatsoever, by retail in small quantities, as aforesaid, without license first had as aforesaid," was rendered liable to a fine of £3 for the first offence, of £6 for the second offence, and in default of payment in either case, " to be publicly whipped on the naked body not less than ten, nor exceeding fifteen stripes."*
By the statute for " the punishment of drunkenness," it was enacted that if any person should " be found drunken," so as to " be thereby bereaved and disabled in the use of reason and understanding, appearing either in speech, gesture, or behavior, and be thereof convicted, he or she" should forfeit to the trea- surer of the town where the offence was committed, "for the use of the poor therein," 8s. for each offence, or "sit in the stocks not to exceed three hours, nor less than one hour."+
In no instance, perhaps, was the influence of " the Connecti- cut law book" more apparent, than in the act "for the due observation and keeping the first day of the week, as the Sab- bath or Lord's day; and for punishing disorders and profane- ness on the same." By its regulations no person was allowed to perform any labor, " works of necessity and mercy, only, excepted," or engage in " any game, sport, play, or recreation" on Sunday, or on any day of public fasting or thanksgiving, under a penalty not exceeding £10. Whoever should be guilty of " any rude, profane, or unlawful behaviour on the Lord's day, either in words or actions, by clamorous discourse, or by shouting, halooing, screaming, running, riding, dancing, jump- ing, blowing of horns, or any such like rude or unlawful words or actions, in any house or place, so near to, or in, any public meeting-house for divine worship, that those who meet there may be disturbed by such rude and profane behaviour," was to be fined 40s. for every such offence, and "whipped on the naked back, not exceeding ten stripes, nor less than five." No person was allowed to " drive a team, or droves of any kind, or travel on said day," except on business relating to " the present
* By an act of the General Assembly passed on the 21st of October, 1782, this act was amended, and none but licensed tavern-keepers, and persons especially licensed by the justices and selectmen, in each town, were permitted " to sell any distilled liquor or wine, in any less quantity than fifteen gallons, delivered and carried away at one time, on penalty of forfeiting the sum of £10." See ante, pp. 189, 190.
+ Acts and Laws of Vt., 1779, pp. 44, 77, 89-92. Slade's Vt. State Papers, pp. 331, 359, 370-373.
580
HISTOK OF EASTERN VERMONT.
[1779.
war," or unless "by some adversity" he had been belated, " and forced to lodge in the woods, wilderness, or highways the night before." In the latter case he was allowed to proceed on Sunday no further than to " the next inn or place of shelter."
No person was allowed to be accompanied by an attendant on Sunday, while going to or returning from " the public wor- ship of God," unless necessity or mercy required it. Listening " outside of the meeting-house during the time of public wor- ship ;" unnecessarily withdrawing one's self from " the public worship to go without doors ;" and desecration of the time "by playing or profanely talking" were also strictly forbidden. The old New England custom, according to which Sunday was regarded as beginning at sunset on Saturday, not only obtained in Vermont but was in a measure defended by law. "If any number of persons," these were the words of the statute, "shall convene and meet together in company or companies, in the street or elsewhere, on the evening next before or after the Lord's day, and be thereof convicted, [they] shall pay a fine not exceeding £3, or sit in the stocks not exceeding two hours." To this section a proviso was attached declaring that it was not to be "taken or construed to hinder the meetings of such per- sons upon any religious occasions." The officers of each town were required to " restrain all persons from unnecessary walk- ing in the streets or fields, swimming in the water, keeping open their shops, or following their secular occasions or recrea- tions in the evening preceding the Lord's day, or on said day, or evening following." A wholesome dread of disobeying any of the regulations enjoined by this act was inculcated by the denunciation of penalties of various kinds against Sabbath- breakers .*
For facilitating the infliction of punishment, every town was ordered to " make and maintain at its own charge, a good pair of stocks, with a lock and key, sufficient to hold and secure such offenders as shall be sentenced to sit therein; which stocks shall be set in the most public, place in each respective town." In accordance with the principles of philanthropy and Christian charity, measures were taken for "maintaining and supporting the poor," and many laws having for their object the welfare and improvement of society were enacted.
* Acts and Laws of Vt., 1779, pp. 26, 27. Slade's Vt. State Papers, pp. 313- 315.
581
MILITIA LAWS.
1779.]
All male persons between the ages of sixteen and fifty were required to " bear arms, and duly attend all musters and mili- tary exercises" of the companies to which they belonged, with the exception of " ministers of the gospel; councillors ; justices of the peace; the secretary [of state]; judges of probate and of superior and inferior courts; the president, tutors, and stu- dents at collegiate schools ; masters of arts ; allowed physicians and surgeons; representatives or deputies for the time being ; school-masters ; attornies-at-law ; one miller to each grist-mill ; sheriffs and constables for the time being; constant jurymen ; tanners, who make it their constant business ; and lamed per- sons or others disabled in body." Each soldier and house- holder was required to be always provided with, and to have in constant readiness, " a well fixed firelock, the barrel not less than three feet and a half long, or other good fire-arms, to the satisfaction of the commissioned officers of the company to which he doth belong, or in the limits of which he dwells ; a good sword, cutlass, tomahawk, or bayonet; a worm and prim- ing-wire fit for each gun; a cartouch-box or powder-horn, and bullet-pouch ; one pound of good powder ; four pounds of bul- lets fit for his gun ; and six good flints." Full details of the rules by which the militia of the state were to be guided were also set forth, and provision was made for the varied difficulties which might arise in the construction of a military organization.
For the purpose of insuring a proper presentation of the principles of law and justice, and in order to prevent ignorant and unscrupulous men from practising in the courts, every person approved of as an attorney-at-law was required, before being admitted to the bar, to take the following oath :- " You swear by the ever-living God, that you will do no falsehood, nor consent to any to be done in the court ; and if you know of any to be done, you shall give knowledge thereof to the judges or justices of the court, or some of them, that it may be re- formed. You shall not, wittingly, and willingly, or knowingly promote, sue, or procure to be sued, any false or unlawful suit, nor give aid or consent to the same. You shall demean your- self in the office of an attorney within the court, according to the best of your learning and discretion, and with all good fidelity, as well to the court as to the client. So help you God.""
* Acts and Laws of Vt., 1779, pp. 18-24, 43, 78, 97, 98. Slade's Vt. State Pa- pers, pp. 305-312, 330, 331, 359, 360, 378, 379.
582
HISTORY OF EASTERN VERMONT. [1779-1789.
The statutes enacted in February, 1779, some of the most remarkable of which have been cited, served as the basis of the system of law which for many years obtained in Vermont. At the session of the General Assembly, held in June, 1782, the common and statute laws of England, so far as they were applicable to a republican form of government, and were " not repugnant to the constitution, or to any act of the Legislature " of Vermont, were adopted as the laws of the state. Corporal punishment, though at first much employed as a means of refor- mation, gradually fell into disuse, as moral suasion usurped the place of brute force, and finally ceased to be recognized as a lawful penalty .* Instances of the infliction of this and of other degrading punishments are often met with in the records of Vermont trials.
At the session of the Superior court, held at Windsor, in February, 1784, Abraham Taylor, who pleaded guilty to the commission of a crime too indecent to name, received this sen- tence :- " That he be taken by the sheriff to the whipping-post, and be whipped on the naked body thirty-nine stripes; sit in the pillory half an hour on two different days, viz. half an hour on each day; be imprisoned one month; pay a fine of £20 and cost of prosecution ; and stand committed till judgment be complied with." Martha Mansfield having been adjudged guilty of a certain offence, at the session of the Superior court, held at Marlborough on the fifth Tuesday of August, 1786, was sentenced to be taken to the public whipping-post in that town ; whipped twenty stripes on the naked body ; pay the costs of prosecution ; and be imprisoned until judgment was complied with. At the same time Mary Hazeltine and Timothy Hol- brook were sentenced to receive twenty-five stripes each, and Thomas Walker thirty stripes. On the first Tuesday of March, 1789, a session of the Superior court was held at Newfane. On this occasion the guilt of Ezra Whitney in some transaction having been proved, he was sentenced " to stand in the pillory one hour, between the hours of twelve and two, at Newfane in the county of Windham, on the 9th day of instant March, in a public place near the Court-house ; pay a fine of £30 to the treasury of the state ; and pay costs of prosecution, taxed at
* The efforts of the first Council of Censors, at their meetings held during the years 1785 and 1786, were very beneficial in rendering the character of the punishment for minor offences less brutal, and in introducing a more humane spirit into the criminal code of the state.
1
583
A STRANGE BURIAL.
1779-1789.]
£10 13s. 8d." The trial of Reuben Row, alias Munroe, by the Supreme court, at their session held at Newfane on the 4th of September, 1789, on the charge " of passing to John Holbrook Jr. one piece of false money, made of certain mixed and base metals, counterfeited to the likeness and similitude of a piece of good, lawful, and current coin of this state, called a dollar," resulted in his conviction. The sentence of the court was car- ried into execution by Samuel Fletcher, the sheriff, who admi- nistered to the culprit " twenty stripes on his naked back, well laid on, at the common whipping-post in said Newfane, between the hours of two and four in the afternoon" of the day on which the judgment was rendered. It further appears, by the records of the court, that on the morning of the same day, " Row alias Munroe" was punished by being compelled to stand "in the common pillory" of Windham county "for the space of one hour."*
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