USA > Vermont > Men of Vermont : an illustrated biographical history of Vermonters and sons of Vermont > Part 30
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" In Memory of WILLIAM FRENCH, Son to Mr. Nathaniel French. Who Was Shot at Westminster March ye 13th, 1775, by the hands of Cruel Ministereal tools, of Georg ye 3d in the Corthouse at a TI a Clock at Night in the 22d year of his Age. HERE WILLIAM FRENCH his Body lies. For Murder his Blood for Vengance cries. King Georg the third his Tory crew tha with a bawl his head Shot threw. For Liberty and his Country's Good. he lost his Life his Dearest Blood."
Charlotte county had been established by New York March 12, 1772, its territory being the northern part of what had been Albany county, and lying partly in Vermont and partly in New York. The southern part of what is now Bennington county remained in Albany county. So much of Charlotte county was hostile to New York that, in 1774, the courts of Albany county were given jurisdiction of crimes committed in Charlotte county-that was the year that one hundred pounds reward was offered by New York for Ethan Allen, the same for Remember Baker, and fifty pounds each for six others. Those named in the act of outlawry issued an address threatening immediate death to any one trying to arrest them. Charlotte county, whose county seat was Fort Edward, really did no business this side the present New York line. After the Westminster tragedy no courts were in operation till the organization of the state government. The people took care of public matters by commit- tees and by the Council of Safety. The division into counties was recognized, however, as may be seen, as well as elsewhere, on the title page of Rev. Aaron Hutchinson's Sermon, " preached at Windsor, July 2, 1777, before the representatives of the towns in the counties of Charlotte, Cumberland and Gloucester, for the forming of the State of Vermont."
When Vermont's first Legislature convened the new state was organized into two counties, Bennington and Unity. This act was passed March 17, 1778. March 21 the name of Unity was changed to Cumberland. Cumberland included the territory east of the Green Mountains and was divided into two shires by the " ancient county line"-the Newbury shire and the Westminster shire. Bennington county had also two shires, Ben- nington and Rutland. At the February session, 1781, Bennington county was divided, keep- ing under its own name substantially what is now its territory, and its northern part becom- ing Rutland county. The same session Cumberland was divided into three counties- Windham and Windsor, substantially as now existing ; and Orange county, comprising every- thing to the Canada line north of Windsor and east of Rutland. October 18, 1785, Addi- son county was established and Oct. 22, 1787, Chittenden county. November 5, 1792, Franklin, Caledonia, Orleans and Essex counties were established, but the Orange county territory in the above counties was to "continue to be annexed" to Orange county till Oct.
164
JUDGES OF THE SUPREME COURT.
1, 1796. Grand Isle county was formed Nov. 9, 1802, getting North and South Hero from Chittenden and its other three towns from Franklin. November 1, 1810, Jefferson county was incorporated 'and it was organized in 1811, beginning its working existence Dec. 1, 1811. It got its territory from Orange, Caledonia, Chittenden and Addison counties. The name of Jefferson was changed to Washington Nov. 8, 1814. Lamoille county was estab- lished in 1836.
Vermont's first Legislature met March 12, 1778, and had a session of two weeks, and another session in June. It established a special court, with five judges to each court, for cach shire, thus clecting twenty judges, none of whom, it may be noted, were lawyers. In June they re-elected twelve of these, and elected eight new ones, and among the eight not re-elected was Maj. Jeremiah Clark, the first judge of the Bennington shire. His court had done business, however, before he went out of office, for David Redding was tried for and convicted of " enemical conduct." Redding was a spy, and had been detected in his secret work, and in carrying off some muskets to the enemy. But June 4, John Burnham, who appears never to have been admitted to the bar, appeared before the Governor and Council with a copy of Blackstone, and convinced them that it was all wrong to hang Redding, as the jury that convicted him consisted of only six men. They gave the prisoner a new trial. Ethan Allen had returned the week before from his captivity in England, and had completed the celebration of his return, at which, he records, they " passed around the flowing bowl." The Governor and, Council on that 4th of June reprieved Redding, who was to have been hung that very day, for one week, and appointed Allen as prosecutor to conduct the case at the new trial. A multitude had gathered to see Redding hung, and on learning of the reprieve seemed inclined to appeal to Judge Lynch. Allen mounted a stump, waved his hat, and, without speaking through it, called "Attention, the whole !" advised the people to go quietly home, and to return the 11th, adding : "You shall see somebody hung, for if Red- ding is not then hung I will be hung myself." The crowd left ; Redding was tried the 9th by a jury of twelve men, Major Clark being presiding judge again, and Allen conducting the prosecution. The twelve found Redding guilty, as the six had done before, and on the 11th he was duly hung, having had the same benefit he would from exceptions, if there had been any provision for exceptions, which benefit figured up just seven days more of life.
June 17, 1778, the General Assembly constituted a Superior Court for the banishment of Tories and appointed as its judges Col. Peter Olcott of Norwich (afterwards a judge of the Supreme Court), Bezaleel Woodward of Dresden (now Hanover, N. H., and then with Piermont and many other New Hampshire towns, represented in the Vermont Legislature), Major Griswold, Patterson Piermont, Esq., and Major Tyler. I think it was this court that passed judgment of banishment on James Breakenridge, Ebenezer Cole and John McNeill, and which the council, July 17, 1778, recommended to " dissist from any further prosecu- tions " till the " rising of the Sessions of Assembly in October next." These men sentenced to banishment were reprieved till such rising of the Assembly : See Vol. I, Governor and Council, pp. 273, 274.
The Major Tyler of this court was evidently Major Joseph Tyler of Townsend. Major Griswold was doubtless Major John Griswold of Lebanon. Patterson Piermont, Esq., I am now unable to place. It is a fact that a Capt. Isaac Patterson was then or soon after a resi- dent of Piermont. The ridiculous mistake once made by the Austrian police, warns me however from indulging the notion that Patterson of Piermont was the fourth judge.
The relation-by consanguinity, affinity, or otherwise-of the Austrian police to the Supreme Court of Vermont may be rather distant but this paragraph goes in all the same. In Watertown, Wis., Feb. 6, 1857, I heard the brilliant if eccentric Rev. James Cook Richmond lecture on Hungary, the body of whose patriot Kossuth is at this writing on its way to burial in the land he loved. No better word-painting was ever done at the bar or on the lecture plat- form than Mr. Richmond's of the bewilderment of the Austrian police when they had muddled their brains by some alleged mental process peculiar to themselves and superinduced by James Cook Richmond's peculiar name, and became thereby convinced that there was within
165
JUDGES OF THE SUPREME COURT.
the bounds of the Empire a James Cook (or Yawmess Ko-ok as they pronounced it) of Richmond, who had mysteriously disappeared from their ken. This duplication business brought on by their own stupidity or carelessness was a horror to the police and an amuse- ment to Richmond as it was to his audience as he told of the police inquiries continually made of him in the hope that he might give aid by having and imparting knowledge of the whereabouts of his interesting countryman, Yawmess Ko-ok. The tragic close of Mr. Rich- mond's life brought an incident of peculiar interest to Vermonters. In July, 1866, Rich- mond was brutally murdered by two of his servants. Frank A. Flower in his life of Matt Carpenter, says : "With perhaps a single exception, Carpenter entertained a deeper regard for Rev. James Cook Richmond than for any other man of God he ever knew." The December after Richmond's murder Carpenter went from Milwaukee to Dutchess county, N. Y., and offered to aid in the prosecution, which offer was accepted. The prisoner's counsel tried to prejudice the jury by alleging that Carpenter, by his long journey and free services, showed he was seeking revenge and not justice. Carpenter made the closing argument and the jury brought in a verdict of murder in the first degree after being out only twenty minutes. Judge Gilbert who presided at the trial, after it closed, said to him : " I presume, Mr. Car- ter, you were a member of Father Richmond's church." "No," says Flower, was the instant reply, " I take my religion by the curtesy."
And now getting near the beginning of the Supreme Court and mentioning Carpenter there comes to mind the picture of the professional beginning of those supreme lawyers, Edmunds and Carpenter, in their night struggle with each other in the justice's court in Bolton nigh unto Camel's Hump ; a scene on which Edmunds threw a flash light when speaking in the Senate on the death of Carpenter.
There were no lawyers in the territory that is now Vermont before the State of Ver- mont was established, except those in Cumberland county. These, in their order of com- ing, were : Charles Phelps, who came from Massachusetts to Marlboro in 1764 and was then a lawyer before there was any court for the place of his new residence, unless one went to Portsmouth or Albany to find it-according as one stood for the Hampshire or York jurisdiction ; John Grout, about 1768, who came to Windsor first and rapidly changed to Chester ; Crean Brush who was licensed to practice law Jan. 27, 1764, in New York by Governor Colden, and who came to Westminster in 1771 ; Solomon Phelps, son of Charles whose name perhaps should come before Grout's, as Solomon came to Marlboro with his father and was commissioned by Gov. Henry Moore of New York, as an attorney-at-law, March 31, 1768, though the record of his admission to the bar by the court in Cumberland county is as of Sept. 8, 1772 ; Samuel Knight (afterwards a judge of the Supreme Court), who was admitted as an attorney by the court the same day as Solomon Phelps, Sept. 8, 1 772, though he was " commissioned " as an attorney, June 23, 1772 ; Elijah Williams who was admitted at March term, 1773, though it does not appear where he lived-an Elijah Williams was one of the first settlers of Guilford in 1754-and the most that can be hoped is that when Patterson Piermont makes his local habitation known Williams will come with him ; Simeon Olcott, who was admitted, Sept. 15, 1774, but as he was doubtless resident in Charlestown, N. H., he can hardly count as a Cumberland county lawyer -he was after- wards elected a judge of the Supreme Court but did nothing as such except to resign, and still later he was chief justice of and a senator from New Hampshire : and last but not least Micah Townsend of Brattleboro, who was admitted in New York in April, 1770, and came to Vermont about 1777. Two of the above killed themselves-Crean Brush shot his brains out in New York in May, 1778, and Solomon Phelps after preaching, went crazy and tried to beat out his brains with the head of an axe but only broke his skull, whereupon trepan- ning saved his life till 1790, when he cut his throat with a razor. Knight became chief judge of Vermont and Olcott chief justice of New Hampshire and senator as above stated. Micah Townsend lived long and had the happiness so clerkly, and able, and pious a man deserved, and as to Charles Phelps and John Grout, of each the old epitaph is true, " af- flictions sore long time he bore."
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JULES Of NI SI PREME COURT.
At one of the many sessions in which Lyman G. Hinckley, of happy memory, repre- sented Chelsea, somebody who had the notion that the state was being impoverished by the emoluments pertaining to the office of justice of the peace, had introduced a new fee bill for justices and speech after speech was made, all aimed at abuses real or imaginary that needed to be corrected in our fifteen hundred or more "courts of record" that don't have a seal. At last "Lyme"-it was years after he had been Lieutenant Governor - who had nearly all his life been a justice without being made aware of the disgraceful character of the ocenpation as set forth by his fellow-representatives, came to the resene of the rank and file of the judiciary force and announced that he had heard enough of invective against a re- spectable body of men, invective having its moving cause, he said, in nine cases out of ten in the knowledge of those who assailed our worthy magistrates, that they never could hope to arrive at and be clothed with the dignity of a justice of the peace. The House langhed, killed the bill, and, figuratively speaking, took off its hat to the representative from Chelsea and his army of justices.
Well it might, for in early times as well as later, the pathway of the local magistrate was not strewn with roses. And in September, 1778, when the Superior Court had not been established and the Supreme Court was yet farther off in the future, and the Special Courts were not in session and the Superior Court for the banishment of tories had been recom- mended to "dissist from any further prosecution," the judicial power of the state was in ex- ercise only by the despised justices. The following complaint shows some of the emolu- ments and pleasures of the office of justice in early days :
"STATE OF VERMONT
CUMBERLAND COUNTY ( Hallifax, September ye: 26, 1778.
To: HIS EXELLENCY THE GOVERNOR, TO HIS HONOUR THE LIEUT .. GOVERNOR, TO THE HONOURABLE COUNSIL AND HOUSE OF REPRESENTATIVES:
GREETING-The Complaint of William Hill Most Humbly sheweth that your complainant Did on the 24th Day of Instant September receive a warrant from Hubbel Wells Esqr to arrest the Bodys of John Kirkley and Hannah his wife, of the Town and County afore Said for asault and Battery parpetrated in the Highway on the body of David Williams in Hallifax afore Sd I therefore took the said John and Hannah persuant to the orders and Brought them Before said athority without any abuse the warrant was returned the partys called and the Cort opened-then there came Thomas Clark Thomas Baker Isaac Orr Henrey Henderson Alexander Stewart Jonathan Safford Elijah Edwards Peletiah Fitch With ahout Sixteen Others of Said Town armed With Clubs to attempt to Resque the prisoners or to set the Court aside and in a Tumultuors manner Rushed into the House Drew their Clubs and Shok them over the Justices Head and Swore he Should not try the case Called him a Scoundral and that he to Shew himself such was forgery Which he Should answer for and Bid Defience to the State and all its authority with Many more Insults and abuses which Stagnated the free Course of Justice, in that way overpowered the author- ity and Stopt the Court-all which is against the peace of the Community Subversive of the athority of the State against the peace and Dignity of the Same Your Complainant prays for your advice and assistance in this Matter that Some Method may be taken Whereby the above Said Offenders may be Brought to Justice for such acts of Contempt of athority and for such atrotious acts of out rage.
this Granted and Your Complainant as in Duty Bound Shall Ever pray.
WILLIAM HILL, Constable."
One gathers from the above that the men with clubs were adherents of New York, for they maintained that for Wells (who was a justice under appointment of the new State of Vermont ) "to shew himself such "-that is, to claim to be or shew himself as a justice-was " forgery," a rather unique but forcible use of the word.
THE JUDGES.
At the October session, 1778, at Windsor, Oct. 23, the General Assembly " Resolved, that there be a Superior Court appointed in this State, consisting of five judges ;" also, " Resolved, that the Hon. Moses Robinson, Esq., be, and is hereby appointed chief judge of the Superior Court, and Maj. John Shepardson, second ; John Fassett, Jun., third ; Major Thomas Chandler, Jr., fourth ; and John Throop, Esq., fifth, judges of said court." The court was to sit four times a year-at Bennington, Westminster, Rutland and Newbury, and was not to " sit longer at one sitting than one week." This court existed four years.
The first session was held at Bennington and began Dec. 10, 1778. The record be- gins :
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JUDGES OF THE SUPREME COURT.
"State of Vermont, Bennington, 10th December, 1778.
This day met the Superior Court for said State in the Council . Chamber at Bennington half shire in the house of Mr. Stephen Fay's in said town agreeable to an act of the General Assembly of the state made and provided for that purpose.
Present-The HON. MOSES ROBINSON, Esquire, Chief Judge, JOHN FASSETT, Yun'r, and THOMAS CHANDLER, Yun'r, Esquires,
Having each of them taken the necessary oaths of office proceeded to the choice of a clerk for said court," &c.
They chose Joseph Fay, Esq., clerk. The following account, which was allowed, shows what judges attended. It seems that Major Shepardson did not attend, but Jonas Fay who was a member of the council, did attend, this coming from a provision of law that in the absence of a judge a member of the council might sit as a judge. The account given below bears on its back the " aproval " of Thomas Chittenden and the receipt of John Fas- sett, Jun., to Ira Allen, the treasurer, in January, 1779, when it is plain Fassett got his pay for the money advanced to pay the judges and officers. This is the account :
BENNINGTON, 14th December. 1778. TO THE SUPERIOR COURT, DR.
STATE OF VERMONT.
To Moses Robinson, Esq., Chief Judge, 4 days' Service, 66 O
O
Thomas Chandler, Esq., 12 days' Service, 60 miles Travel, 21
0 0
John Fassett, Jur., Esq., 7 days' Service, 18 miles Travel, II 8 o
John Throop, Esq., II days' Service, 100 miles Do., 21 IO 0
Jonas Fay, Esq., 2 days' Do., 3 0 O
John Burnum, Esq., State's Attorney, 2 days' service,
3 0 0
Benjamin Fay, Esq., Sheriff, 4 days' Service, Attend Court, Summoning 24 Jurymen, 36 miles Travel, 9 18
o
David Robinson, Constable, Attending I day,
0 18
0
Grand Jury's Bill,
10 16 0
Joseph Fay, Clk., 3 days' Service,
3 12 0
£91 2 0
Samuel Robinson, Esq., 2 Days,
2 8 0
$93 10 0
December 14th, 1778.
We whose names are heretotore prefixed do hereby acknowledge to have Recd. of John Fassett, Jur., Esq., the several sums annexed to each of our Names in the above Acct. in full of all demands on said Accl. Moses Robinson.
Thos. Chandler, Jr.
John Fassett, Jur.
This may certify that the Grand
Joseph Fay.
Jonas Fay.
Jury Recd. the money mentioned in
David Robinson.
John Throop.
the above act.
Saml. Robinson.
Benj. Fay.
Attest: Jos. Fay, Clk.
John Burnam, Junr.
Ira Allen, Esq., Treasurer.
At this session it seems nothing was done the 10th, the day court met, except to appoint a clerk and adjourn to the 11th. On the 1 1th the court was mainly occupied with the case of William Griffin vs. Jacob Galusha for fraudulently taking and detaining a certain white horse belonging to Griffin ; the parties appeared and joined issue and the defendant Galusha "pleading" for a continuance for the want of material evidence, it was granted him to the third Thursday of February, and to that time the court adjourned on the 11th. On the 14th of December, at a Special Superior Court, "called on special occasion," a prisoner pleaded guilty of " enemical conduct against this and the United States and going over and joining the enemies thereof," and was sentenced, having prayed the mercy of the court, and presumably getting benefit from the prayer, to be banished and transported within the "enemies lines at Canada, and to depart this state, on or before the 10th day of February next ; and to proceed within the enemies lines, without delay ; never more to return within this, or the United States of America, on penalty of being, on conviction thereof, before any court or authority proper to try him, whipped on the naked back, thirty and nine lashes ; and the same number of lashes to be repeated once every week, during his stay ; paying cost." The bill for service printed above evidently covers the sitting of the court at its regular session on the roth and 11th, and at its special session of the 14th.
It is rather interesting to follow out Griffin vs. Galusha. At the February term, 1779, Galusha was defaulted, and the court judged " that a certain white horse, now in the custody of the sheriff, the property of William Griffin, be delivered up to the said Griffin and that the defendant pay cost," which order was discharged by the defendant, who turned up after
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JI'D.AS OF 1111. SUPREME COURT.
he was defaulted and asked the court to grant a review ; this it did and on the next day tried the cause. Galusha got beaten on the trial and had an additional bill of cost to pay. At this February term Timothy Brownson of the Council sat with Robinson and Fassett, judges, to make a quorum.
At the May term, 1779, at Westminster, Stephen R. Bradley and Noah Smith were " appointed attornies at law, sworn and licensed to plead at the bar within this state "- being the first lawyers admitted by a Vermont court. At the June term, 1779, at Rutland, Nathaniel Chipman was appointed attorney at law, sworn and licensed to plead at the bar within this state. These three young men were very much in evidence in the state later on, and Chipman was the first lawyer to become one of the judges of the Supreme Court, Bradley the second, and Smith the third.
Noah Smith was appointed state's attorney pro tempore for the county of Cumberland the day he was admitted, and on the same day exhibited a complaint against Nathan Stone, of Windsor, for uttering reproachful and scandalous words of the authority. It appears that Stone, on the 15th of March, at Windsor, had said to the sheriff, ". you, and your Governor and your Council," or, as set forth by Smith in his complaint, "you (meaning the high sheriff of said county, John Benjamin, Esq.), and your Governor (mean- ing his Excellency the Governor of this state), and your Council (meaning the Honorable Council of this state), which opprobrious language was a violation of the law of the land." Stone was fined twenty pounds and cost. Lucky for Stone he didn't damn the Court as well. At that term all five of the judges were present, so no member of the Honorable Council sat in judgment on his reviler. Smith and Chipman were the first lawyers to be admitted who resided west of the Green Mountains. Smith had lived in Bennington nearly a year and Chipman had come that spring from Connecticut, where he had been admitted an attorney in March.
It is not intended to give here any detailed account of the acts constituting the courts of Vermont. It is enough to say that county courts were established by acts of the Feb- ruary and April sessions, 1781, and the first county court was held at Westminster June 26, 1781. In 1779 the Governor, council and assembly were invested with equity powers as a court in cases involving more than four thousand pounds and with appellate powers in equity cases involving more than twenty and less than four thousand pounds, but the 1785 Council of Censors pointed out the inconvenience of that arrangement and in 1786 it was repealed. The Superior Court was given equity jurisdiction in cases above twenty and less than four thousand pounds. The Governor, council and assembly had one chancery case before them in 1785 but gave up the consideration of it. There was no chancery court between 1786 and 1797. In 1797 the court of chancery was constituted by legislative enactment, and till 1839 consisted of the judges of the Supreme Court, and in 1814 each of the Supreme Court judges was authorized to make as a chancellor interlocutory orders in vacation in chancery cases preparatory to final hearing. The Supreme Court continued to 1839 to be the Court of Chancery and of course there were no appeals, but since then (except from 1850 to 1857, when the circuit judges were chancellors), there has been a court of chancery, consisting of one judge as chancellor (each Supreme Court judge being a chancellor), sitting contemporaneously with the county courts in each county, appeal from all decrees lying to the Supreme Court. The Supreme Court was constituted in 1782 and five judges elected. The Supreme Court judges concluded the work of the Superior Court, and except to have this business finished, the latter court ceased to exist after four years from its creation, the county and Supreme courts taking its place. The first session of the Supreme Court was held at Marlboro, Windham County, Feb. 6, 1783, after its judges had finished business pending in the Superior Court.
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