USA > Vermont > Men of Vermont : an illustrated biographical history of Vermonters and sons of Vermont > Part 31
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In name no judges elected before October, 1782, belong in the list of Supreme Court judges, but the judges of the Superior Court have been treated as though they properly be- longed in that list and the Supreme Court took the place of the Superior Court, and four of the Superior Court judges of 1782 became Supreme Court judges that same year. The
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Superior Court judges will be here treated as though their court had been legally called Supreme.
It was not till 1786, four years after the Supreme Court was established, that it had a lawyer on its bench, and the Superior Court never had one. Lawyers were scarce for one thing, and were either very young or in sympathy with the claims of New York. Out in Illinois long ago a sensible business man was nominated for judge, and, thinking there was no possibility of election did not take the trouble to decline. To his surprise he was elected and thereupon went to a good friend who was a lawyer for advice. The lawyer said, "ac- cept," and when the judge-elect protested that he would not know what to do, told him : "Hear each case and decide it as seems to you right, and in nine cases out of ten your de- cision will be right, but never give a reason for your decision for in nine cases out of ten your reason will be wrong." It was not till 1793 that any book of reports of decisions of our Supreme Court was published, and "N. Chipman" is a very unpretentious volume.
Before giving account of the judges who sat in the highest court of the state from the October session of 1778, a final word may be said of that first superior court created June 17, 1778, for the banishment of Tories, etc. A quarter of a century ago Charles Reed when working with Gov. Hiland Hall in preparing for publication matter going into the collections of the Vermont Historical Society, got on track of a man, real or mythical, of the name of Evan Paul, but never found him. And Patterson Piermont, Esq., judge of the brief court of banishment, yet stands the shadow of a name.
The judges of the Superior Court elected in October, 1778, were five : Moses Robinson, John Shepardson, John Fasset, Jr., Thomas Chandler, Jr., and John Throop.
ROBINSON, MOSES .- Chief judge of the Superior Court, 1778 to 1781, and from June, 1782, to October, 1782 ; chief judge of the Supreme Court, 1782 to 1784, and from 1785 to 1789. [See Mr. Davenport's sketch in "The Fathers," ante page 55.]
SHEPARDSON, JOHN. - Major John Shepardson, of Guilford, was born in Attle- boro, Mass., Feb. 16, 1729, and died Jan. 3, 1 802. He came to Guilford soon after its first settlement in September, 1761, by Micah Rice and family, and was there when the only road, that up Broad Brook, was impassable with teams, so that the settlers had " to boil or pound their corn, or go fifteen miles to mill with a grist upon their backs." The first recorded town meeting of Guilford was held May 19, 1772, and John Shepardson was chosen town clerk. When the new state was organized he and Col. Benjamin Carpen- ter were the two leaders of the cause of Ver- mont against the New Yorkers. He was twice, in 1778 and 1779, elected " second judge " of the Superior Court-his name standing next to that of the chief judge. He attended the court at Westminster, May 26, 1779, when S. R. Bradley and Noah Smith were admitted to the bar, but does not seem to have attended other sessions of the court.
This session of May, 1779, which Shep- ardson attended was, taken altogether, an interesting one. Vermont and New York
were each claiming jurisdiction over Vermont territory. In February, a militia law had been passed by Vermont giving the com- mander of a militia company the right to draft men to serve. In April, William Mc- Wain, a sergeant in Capt. Daniel Jewet's company, was drafting men. The Yorkers refused to serve, especially Capt. James Clay and Lieutenant Benjamin Wilson of Putney. McWain told them they would be fined, and then that they were fined ; they would not pay and April 21 he levied on two cows, one Clay's and the other Wilson's, and advertised to sell them the 28th. On the 28th the cows were forcibly taken from McWain by a num- ber of men of Col. Eleazer Patterson's New York regiment. May 18, McWain entered complaint against those who took the cows from him and, on papers issued by Ira Allen, thirty-six Yorkers were arrested and confined in Westminster jail. Governor Chittenden, to protect the Vermont sheriff, ordered Ethan Allen to collect a hundred able bodied volun- teers in the county of Bennington and march them into the county of Cumberland to re- main during the sitting of the court. The county committee of the New York adherents met at Brattleboro, May 25, and sent an ex- press to Governor Clinton saying that if aid were not rendered, "our persons and prop- erty must be at the disposal of Ethan Allen, which is more to be dreaded than death with all its terrors." Court met the 26th. Noah Smith was appointed state's attorney, pro
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tempore, and complained of the prisoners for assembling at Putney, April 28, in a riotous and unlawful manner and assaulting Me Wain, a lawful officer in the execution of a lawful command, and taking the cows which Mo Wain had taken by legal measures-charging that this " wicked conduct" was a violation of the common law and contrary to the stat- ute [ passed in February but not printed and published until June ], to prevent riots, dis- orders and contempts of authority. The preliminary proceedings used up the day and the prisoners were sent back to jail. Micah Townsend was one of the thirty-six prisoners ; at his suggestion, twenty-eight of them peti- tioned the court for a month's delay but the only effect of this was to procure the new lawyer, S. R. Bradley, as counsel for the res- pondents. On the 27th, Smith entered a nolle prosequi in the complaints against three of the thirty-six, and Mr. Bradley moved to quash three other complaints on account of the nonage of the parties respondent. Brad- ley worked this racket on Smith successfully. Benjamin H. Hall, who was far from being an admirer of Allen, says :
"The motion was granted, and the court was about to proceed with the trial of the remaining 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 preced- ing day, and had expressed great pleasure at the manner in which the goddess of jus- tice seemed to be preparing to punish the rebellious Yorkers. He was not present at the commencement 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 fabulous 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 Rob- inson 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 infor- mation Allen replied by a nod, and taking off his chapeau threw it on the table. He
then proceeded to unbuckle his 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 administered is bes(.'
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 disturbances should they arise ; and to aid the sheriff and the court in pros- ecuting 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 that this little Noah Smith is far from under- standing 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 delin- quents should slip through your fingers, and thus escape the reward so justly duc 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."
Thirty respondents were before the court. Bradley came to the rescue of them as he had of the three "infants," and the thirty pleaded in bar that though by common law they might be held to answer part of the in- formation (Hall calls the allegations against them at one time complaint, at another in- dictment, and again information), yet they could not be held to answer that part founded on the statute since it was not in their power to know the statute when the crimes were alleged to have been committed as it had not then been promulgated, and this they were ready to verify. This invention of Bradley's (if Micah Townsend was not the originator) succeeded as well as could have been expected and the court ordered that part of the information brought on the statute to be dismissed. To be " boiled in oil" was not a part of the statutory penalty, but whipping on the naked back and divers and sundry other unpleasant things were, so Bradley's point was worth making. The prisoners then pleaded not guilty and gave evidence that they were subjects of New York and did the acts alleged against them by virtue of authority given them by that state. What Smith was doing when Bradley put in that evidence does not appear, and one can but think of Allen's characterization of the two men. The state then put in some evidence and the court considered the mat-
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ter and adjudged the defendants guilty and fined them from two pounds to forty pounds lawful money each. Townsend's fine was twenty pounds. The court also sentenced the delinquents to pay in equal shares the costs, amounting to 1,477 pounds and 18 shillings. These large figures, it must be remembered, were those of a miserably de- preciated currency and Mr. Hewitt even would regard a coined vacuum with much more favor than the paper money of that time.
All these doings Shepardson saw and helped Robinson preside at. He went out of judicial office in 1780. One more glimpse of Allen in the neighborhood of Shepard- son's home may be had. In 1782 renewed trouble with the Yorkers, who had their main strength in Guilford, induced "one-eyed Tom," as the irreverent dubbed His Excel- lency Thomas Chittenden, to again call out Allen and the troops. Chittenden, by the way, was not the only Governor who had a nick-name, for, appalling to relate, the, to us, venerable Isaac Tichenor, who was elected Governor in 1797, the year Chittenden died, was called " the Jersey Slick." In Septem- ber, 1782, Allen went into Windham county and put himself at the head of the Vermont militia, and when in Marlboro was boldly faced by Timothy Phelps, who, as Allen ap- proached, "announced himself as the high sheriff of Cumberland county, bade Allen go about his business, denounced his conduct and that of his men as riotous, and ordered the military to disperse. With his usual roughness, Allen knocked the hat from the head of the doughty sheriff, ordered his at- tendants to 'take the d-d rascal off,' and galloped away to superintend the operations of other portions of his forces." It was probably the same day that Allen dispersed the Guilfordites by his famous proclamation. They had fired on his troops, and he, on reaching Guilford, made proclamation to the people in these words : "I, Ethan Allen, do declare that I will give no quarter to the man, woman, or child who shall oppose me, and unless the inhabitants of Guilford peacefully submit to the authority of Vermont, I swear that I will lay it as desolate as Sodom and Gomorrah, by G -. " The terrified Yorkers of Guilford thereupon fled. Tradition has it that Allen's answer to De La Place at Ticon- deroga, when asked by what authority he demanded the surrender, had the same two words ending as his Guilford proclamation, though not so quoted in the books. A Bos- ton newspaper the other day, commenting on the assertion that somebody in Brattle- boro says "Begad," remarks that is not the way Vermonters pronounce it when excited. However this may be, the power to hit the mark with words, and hit it hard, is a great
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gift, and that gift Allen had in his day, as the creator of Mulvaney, Ortheris, and Learoyd, in an altogether different field, has it in this day.
In December, 1783, the Yorkers attempted to capture Shepardson and Col. Benjamin Carpenter, but did not succeed. These two men seem to have hunted in couples some- what in their work for the new state. Per- haps Shepardson has a monument with par- ticulars about him that would go well here, for the judge don't seem to cut quite as much of a figure in this sketch of him as he ought to, but without monumental inscrip- tion at hand to give light on him, a few lines from Carpenter's monument will have to do to show the kind of man his next friend was. The tribute to Carpenter on his monument after stating among other things that he was a field officer in the Revolutionary war and a founder of the first constitution and gov- ernment of Vermont, concludes with these words, "lined" by the monument-maker thus :
" A firm professor of Christianity in the Baptist Church 50 years. Left this world and 146 persons of lineal posterity, March 29, 1804, Aged 78'years, 10 months and 12 days, with a strong Mind and full faith of a more Glorious state hereafter. Stature about six feet-weight 200. Death had no terror."
In the 5th volume of Hemenway's Ver- mont Historical Gazetteer are given the records of the town of Guilford for many years of Judge Shepardson's time. The pro- ceedings of the meeting of Feb. 20, 1777, of which Major Shepardson (he wasn't elected judge till the next year and query whether the military title even then gave way to the judicial) was moderator, are, like many of the other records, well worth reading. The meeting appointed a committee of nine "to state the Price of Labor, Provisions, Mer- cantable Goods, etc., and to make [report ] to the town for their approbation." March 6, 1777, at an adjourned meeting the com- mittee reported among other things that " good merchantable wheat shall not exceed 60 cts. per bu. * Good yallow potaters shall not in the spring exceed 20 cts. per bushel. * * Good West India Rum and New England Rum and Molasses and Muscovado Sugar shall be sold on the same as they are stated in the New England states ; Farming laborers in the summer season shall not exceed 30 cts. per day and so in usual proportion at other seasons of the year and the labor of mechanics and tradesmen and other labor to be computed according to the wages and customs that hath been practiced among us computed with farm labor." Among other articles on which a price was fixed were Rye, Indian Corn, Oats, Peas, and Beans, Flax Seed, Salt
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Pork, Good Grass Beef, Raw Hides, Sole Leather, Neat Leather Shoes, Wool, Tow ('loth, Coarse Linen, Striped Flannel, Hay, Butier, Tallow, Hog's Fat and Pine Boards. It was voted if anybody in town should sell any named article to any person in the neighboring towns at a higher price than stated in the report he should forfeit the value of the article to the town, and if any person directly or indirectly took a greater price than stated in the report he should forfeit the value of the article sold, one- half to the town and one-half to the complainant. It was then voted that the committee of nine hear and determine all cases and complaints in these matters and impose costs of suit if they should find those charged guilty ; "By a unanimous vote of this town and chose Maj. John Shep- ardson one of the Committee of Inspection."
All this was in the "Republic of Guilford" and there was no Coxey with his army of the Commonweal to march to its capital. Political economists can figure the matter out to suit themselves. But this wasn't the Guilford which Vermont had on her hands to contend with-that Guilford was the "other crowd," the York adherents.
In bidding Judge Shepardson good-bye, we bid good-bye to comment on the form and pressure of his time
" When the Hampshire Grants were tracts of land Somewhat in disputation,
Tracked by the most untractable Of all the Yankee nation : When Ethan Allen ruled the State With steel and stolen ' scriptur,'
Declared his ' beech seal ' war against New York, and took and whipt her."
Vermont's poet, Eastman (born in Maine though) makes "My Uncle Jerry" sum it up with a free swing of words that matches Allen's own :
" There's much, he says, about Vermont For history and song :
Much to be written yet, and much That has been written wrong. The old Thirteen united, fought The Revolution through :
While, single handed old Vermont Fought them, and England, too.
She'd Massachusetts and New York, And-so the record stands- New Hampshire, England, Guilford, and The Union on her hands; Yet still her Single Star above Her hills triumphant shone; And when the smoke of battle passed, She'd whipt them all, alone!"
So Modesty survives the flight of time and like Charity, vaunteth not itself, is not puffed up, doth not behave itself unseemly.
FASSETT, JOHN, JR .- Judge of the Superior Court, 1778 to 1782 ; judge of the Supreme Court, 1782 to 1786. [See sketch in "The Fathers," ante page 58.]
CHANDLER, THOMAS, JR .- Judge of the Superior Court, 1778 to 1779. [See sketch in "The Fathers," ante page 66.]
TUROOP.
THROOP, JOHN, of Pomfret, was born in Lebanon, Conn., Sept. 11, 1733, and died Jan. 25, 1802. He was a judge of the Superior Court, 1778 to 1781, and February to October, 1782, and had lived in Pomfret at least as far back as 1773, when the town was organized. He was a delegate to the con- vention at Windsor June 4, 1777, and was also a delegate to the convention forming the constitution in July and December of that year. Judge Throop was chosen repre- sentative from Pomfret in the fall of 1778 and was a member of the council from 1779 to 1786. In 1787-'88 he again represented Pomfret, and was judge of probate, 1783 to 1792.
SPOONER, PAUL .- Dr. Paul Spooner of Hartland (which was called Hertford till 1772) was born in Dartmouth, Mass., March 20 (one authority says March 30), 1746, and died at Hartland while a judge of the Supreme Court Sept. 4, 1789. He was the youngest of the ten children of Daniel and Elizabeth (Ruggles) Spooner and his father moved to Petersham, Mass., when Paul was about two years old. There Paul grew up, studied medicine and from there came to Hertford in 1768. His father lived to the great age of one hundred and three years, dying in I797.
Dr. Spooner married in 1769 Asenath, daughter of Amasa Wright, and by her had three children, one of whom, Paul, moved to Hardwick and was the first town clerk of that town in 1795 and its first representative. His second wife was Mrs. Ann (Cogswell) Post.
Dr. Spooner was first elected a judge of the Superior Court in October, 1779, at which session that court was constituted a court of equity in matters above twenty and under four thousand pounds-the Governor and council and House of Representatives being given original equity jurisdiction in cases in- volving over four thousand pounds, and an appeal lying to them from the Superior Court in cases where the latter had original jurisdiction. This provision as to the equity powers of the Governor, Council and House was, as has been before stated, repealed in I 786.
Dr. Spooner was a delegate from Hertford to the Westininster convention of Oct. 19, 1774, called to condemn the tea act, the Bos- ton Port bill and like measures of the mother country. He was a delegate to a convention of Whigs at Westminster Feb. 7, 1775, and to the " Cumberland County Congress " of June 6, 1775, and was chosen a delegate to represent that county in the New York Prov- incial Congress at its sessions beginning in May and November of that year. May 5, 1777, he was chosen sheriff of Cumberland
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county under New York, but declined the office in a letter dated July 15, 1777, having the week before been appointed one of the Vermont Council of Safety. He was a mem- ber of the council from 1778 to 1782 and Lieutenant-Governor from 1782 to 1787. In 1781 and 1782 he was judge of probate for Windsor county, and was agent of Ver- mont to Congress in 1780 and 1782.
Judge Spooner served as a judge of the Superior Court from 1779 to 1782, though in 1781 he was left off at the election, when Chief Judge Robinson was displaced by Elisha Payne and being angry declined to serve as assistant. When Robinson declined Spooner was elected in his place. In 1782 Judge Spooner was elected a judge of the Supreme Court and served as such till his death. From 1784 to 1785 he was chief judge.
A communication, dated Hartland, Sept. 8, 1789, appeared in Spooner's Vermont Journal of Sept. 16, 1789, from which the following is an extract :
" Friday last, departed this life and on Sunday was decently interred, the Honorable PAUL SPOONER, Esq., in the 44th year of his age. His character as a skilful and careful practitioner in the Medicinal Art, was established here soon after his ar- rival from Petersham; even without the advantages of a liberal education. The sprightliness of his genius, his candid and generous temper, his discreet and diligent application to busi- ness, soon attracted the eyes of his fellow citizens. He was a steady friend and steady assistant to his country, through all the late unhappy war with Greatbritain; and from the first rise to the present advancement of the State of Vermont. * * * He died while the other Judges were on the circuit for the administration of justice. * * * The honor and benefit accruing to the town by his dwelling among them has been largely experienced; the loss whereof may be long felt and regretted. He was a zealous promoter of learning-a great benefactor to the rising generation. * * * * As a judge he ever aimed to administer judgment in uprightness. * * *
He left a sorrowful widow (his second wife) and three chil. dren (by his first wife) to bemoan their loss The concourse to the funeral (with only two days for the tidings to spread) was so great, that one could scarce see so many sad counte- nances, withont crying out in the heart, Behold how they loved him. The conjectures of people varied as to the num. ber, as from five to ten hundred A pertinent and affecting sermon (as it is said) was delivered by the Reverend Aaron Hutchinson of Pomfret, well adapted to the occasion, from Psalm cxlvi 3 4 .-. Put not your trust in Princes, nor in the Son of man, in whom there is no help, His breath goeth forth, he returneth to the earth; in that very day his thoughts perish' After sermon the Funeral Thought was sung, which added not a little to the solemnity "
MOSELEY, INCREASE. - Dr. Increase Moseley was born in Norwich, Conn., May 18, 1712, married Deborah Tracy of Wind- ham, Conn., May 7, 1735 ; moved to An- cient Woodbury, Conn., about 1740 and to Clarendon about 1779. Dr. Moseley was one of the leaders in Ancient Woodbury and served as representative in the Connecticut Legislature from 1751 almost continuously till his removal to Vermont. He was mod- erator of Woodbury's meeting for the relief of Boston, Sept. 20, 1774, and a member of her Revolutionary committees.
He was elected a judge of the Superior Court in 1780, but served only one year, going off in the election of 1781, when everything was mixed up by giving the New Hampshire towns representation on the bench. In 1782 he was representative from
Clarendon and was elected speaker of the House.
Dr. Moseley was chief judge of Rutland county from 1781 to 1787 and was presi- dent of the first council of censors-that of 1785-a body of which Benjamin Carpen- ter, Joseph Marsh, and Micah Townsend were members, and whose work was well done and whose "proceedings"-really an address to the people-constitute a state paper of remarkable merit, the authorship of which probably lay largely with Townsend, the secretary. Judge Moseley died May 2, 1795.
PAYNE, ELISHA .- Col. Elisha Payne of Lebanon, was elected chief judge of the su- perior court in October, 1781, and held that place till he ceased to be a citizen of Ver- mont, on the dissolution of the union with the New Hampshire towns in February, 1782. He presided at a session of the court held for the county of Washington (an ephe- meral county, made up of New Hampshire towns while the Union existed and that went out of existence with the Union) at Charles- town, N. H., December, 1781. No business was done, only Judges Payne and Spooner being present. [See sketch in "The Fathers," ante page 64.]
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