USA > Vermont > Windsor County > Windsor > The birthplace of Vermont; a history of Windsor to 1781 > Part 10
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could be imprisoned, without bail, for from three to twelve months, or until the penalty should be paid. After payment, the offender must give security for good behavior for three years. By an amendment enacted in 1729, in the second year of the reign of George II, the preceding statute was extended to trees within township limits.
Under these statutes it will be perceived that if the Deans were guilty they had incurred the risk of fine and imprison- ment, and that the fine might be collected out of the personal property-but not the land-that they happened to own. But this, according to their own belief, did not cover the full limit of their liability. The title to all of Captain Dean's land in Windsor depended on the Benning Wentworth charter of Windsor. By that charter was imposed on each grantee the express condition "That all white and other Pine Trees within the said Township, fit for Masting Our Royal Navy, be care- fully preserved for that Use, and none to be cut or felled with- out Our special License for so doing, . . . upon the Penalty of the Forfeiture of the Right of such Grantee, his Heirs and As- signs, ... as well as being subject to the Penalty of any Act or Acts of Parliament that now are, or hereafter shall be enacted." Thus, Captain Dean, in addition to being fined and imprisoned, might lose his land as well.
In view of the serious situation confronting Captain Dean, it is not surprising to find that he consulted the only lawyer within reach, Mr. John Grout. Grout was a very recent ar- rival in Windsor, if in fact he had then taken up a residence within the township. He was a native of Lunenburgh in Massachusetts, was a brother of Hilkiah Grout, at whose tav- ern in Winchester, New Hampshire, the Windsor proprietors had held their first meeting, and, in the month of January, 1769, was thirty-seven years old, with "a peculiar natural talent for doing business at law and in courts." 1 Whatever his abilities as a lawyer, John Grout's character as a man was not attractive. In an official report to England, Governor John Wentworth described Grout as "a petty foggin lawyer of deservedly infamous character." 2 His personal traits
1 B. H. Hall's History of Eastern Vermont, p. 650.
2 J. Wentworth to Lords Commissioners, Oct. 22, 1770.
1
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alone might not have made him objectionable to the Windsor settlers, but he belonged to what was even then regarded in the Vermont country as an odious profession, and he found no welcome in Windsor. Lawyers meant business for courts, with consequent burdens for jurymen and expenses for all concerned. Lawyers meant that those who found it inconve- nient to pay their debts might be forced to part with their possessions, or that those who had squatted on land might be ejected by some obnoxious person who happened to have a title. Lawyers were regarded as primarily the agents of the creditor class, the attorneys for plaintiffs. It was something rather unusual that Captain Dean attempted to use this hated profession as an aid to defendants.
The place of the lawyer in public estimation in the Province of New York at this period was defined by Doctor Cadwalla- der Colden in a valuable letter describing the four classes of settlers. First were the great landed proprietors, of which the towns on the Grants had none; next came the gentlemen of the law; third the merchants, and fourth the farmers and mechanics. Of the gentlemen of the law Colden remarks that they include both the bench and the bar and are of the most distinguished rank in the "policy of the Province." He in- sisted that they had formed an association with the intention of assuming the direction of government through their influ- ence in the Assembly, and that they had gained that influ- ence by their family connections and "by the professions of the Law whereby they are unavoidably in the secrets of many familys." "Many court their friendship," continues Colden, "and all dread their hatred. By this means, tho' few of them be members, they rule the House of Assembly in all matters of importance. The greatest numbers of the assembly, being common Farmers who know little of men or things, are easily deluded and seduced." Though written in 1765, Colden's views are sometimes still expressed in Vermont. "A state run by lawyers" has a not unfamiliar ring. And then, is there not still something of truth in the line: "Many court their friendship and all dread their hatred"? Does it not wake a twentieth-century Windsor echo ?
Of the farmer and mechanic class, of which the settlers on
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the New Hampshire Grants were composed, Colden said it "comprehends the bulk of the people and in them consists the strength of the Province. They are the most useful and the most moral, but alwise the Dupes of the former [i. e., the people of higher rank] and often are ignorantly made their tools for the worst purposes." 1
So Captain William Dean sought the counsel of one of these suspected and distrusted "Gentlemen of the Law." What ad- vice he got may be guessed from Captain Dean's subsequent actions. He conveyed-if Governor Wentworth was correctly informed-all his land to this same John Grout and fled to parts unknown.2 It was not noble conduct on the part of Captain Dean, but the captain made no pretensions of being noble. He was a plain, old-fashioned sort, and his lawyer was not a man of character.
The people of Windsor looked on and thought they saw the ends of justice defeated by a trick. They had the distrust of their class for the lawyer. They had also just made the ac- quaintance of Governor John Wentworth, a young man of charming personality and of the ability and power to be of possible service to them. The lawyer's trick would baffle this new-found friend. Governor Wentworth had made to them one suggestion in particular that they now saw could be put to a present practical use by supplying them with a chance at reprisal. He had advised them "to regulate themselves according to their grants from New Hampshire," 3 which they interpreted as meaning that they should organize a town gov- ernment in accordance with New Hampshire law and usage, and without regard to the usage of New York or the town officers which New York statutes prescribed.
It was at the time of Governor John Wentworth's visit to Windsor or directly afterwards that he became warmly inter- ested in securing the extension of New Hampshire's jurisdic- tion over the region west of the Connecticut River, for in a personal letter to his friend, Colonel William Bayard, under date of February 23, 1769, he expressed the opinion that that region "will very shortly be re-annexed to New Hampshire." In that letter he gave a brief history of the New Hampshire 17 Lond. Doc. 795. 2 J. Wentworth's letters. $ 4 Doc. Hist. 424.
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Grants, commenting with severity on the assertion and author- ization of New York's jurisdiction "upon false, absurd, and iniquitous misinformation," and on the action of the New York Provincial Government in re-granting many of the tracts. Some of these re-grants he described as having been made "under such circumstances as might well claim the honest tear of compassion if not the more coercive observa- tions of policy and equity." Somewhat suddenly Governor John Wentworth had become a full-fledged partisan on behalf of the New Hampshire grantees; but he was not a champion of actual settlers merely. He felt that the land speculators of New Hampshire were also entitled to protection. "There are many gentlemen of respect and property here" at Portsmouth, he wrote, who "think themselves aggrieved, and seem deter- mined to petition not only to His Majesty but also to Par- liament in support of their possessions, which they resolve not to give up tamely." He confided to Colonel Bayard that these gentlemen have employed an agent "who sailed hence in Nov' last a gente of England, of excellent abilities and such connections as will lead him to justice and cannot be well refused." The governor added that he himself had not writ- ten a word on the matter and that the New Hampshire Pro- vincial Assembly did not choose to enquire into the subject.
Although Governor John Wentworth up to that time may not have written one official word on the subject of the juris- diction of the New Hampshire Grants, there soon sprang up a distinct belief in the minds of the New York provincial offi- cers that he had been busy in heartening the settlers to at- tempt to secure a change in the jurisdiction from New York to New Hampshire. Fifteen pages of the Documentary His- tory of New York are devoted to the title "Public Disorders Fomented by New Hampshire" and by Governor John Went- worth in particular.1 Although the papers comprised in that title are ex parte and probably somewhat overdrawn, they in- dicate very clearly that John Wentworth led the settlers to believe that the New Hampshire Grants could be annexed to New Hampshire, that petitions for such a change of jurisdic- tion ought to be circulated and signed, and that township
1 4 Doc. Hist. 416-431.
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ORGANIZING A TOWN GOVERNMENT
governments, if organized pursuant to the laws and customs of New Hampshire, would further the movement. That he recommended violence or rioting is not to be suspected and is not asserted. But the governor was playing with fire; and so when, at his suggestion, Colonel Nathan Stone, of Windsor, undertook to circulate one of these petitions through the towns on the west bank of the Connecticut and had organized in Windsor a town government without regard to the laws of New York, but according to New Hampshire practice, it is not surprising to find Colonel Stone soon declaring that he would resist the law officers of New York and oppose their authority "while he had a drop of blood in his veins." 1
It was the organization of a Windsor town government on New Hampshire lines that definitely placed Windsor in the attitude of rebellion against the authority of the Province of which the town was then indisputably a part. This occurred on the second Tuesday of March, 1769, within two months after Governor John Wentworth's visit. How the organiza- tion meeting was called does not appear. Since illegality marked every step, it is likely enough that no warrant for the meeting was signed, and that no notice or warning was posted. Perhaps by whispered pre-arrangement, carefully concealed from any who were suspected of not being in sympathy with the project, the Windsor settlers appeared at the house of Thomas Cooper, the proprietors' clerk, and proceeded to or- ganize. The record of this meeting, endorsed "Proceedings of the first Town meeting held in Windsor on the second Tues- day of March, 1769" and also labeled "Prosceding ye 1," seems to answer the century-old question as to when the town was organized. Thompson's Vermont Gazetteer, Thompson's Vermont, and later histories have merely stated that "the town was rapidly settled, and was soon organized, though the records do not show the time when." The reason for this un- certainty on the part of historians was that no book for the records of the town meetings was procured until about 1790, and that Briant Brown, who at that date was the town clerk, either could not find or did not have time to enter the records for the period prior to his term of office. The record of the 14 Doc. Hist. 394.
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meeting of 1769 and other old records were discovered in the summer of 1916 under circumstances which will be stated hereafter. The record of the first Windsor Town Meeting reads as follows:
Att a Legall Meeting of the freeholders and inhabitants of the Town of Windsor in the County of Cumberland in the Government of N. York held att the House of M' Thomas Cooper in Sd Town on the Second Tuesday of March 1769
The freeholders Voted & chose David Stone
Town Clerk
Zedekiah Stone
men or
Joseph Wait Caleb Benjn
oversears of the Poor
also voted and Chose Joseph King
Cunstables
also chose
Hezekiah Tomson
Tything
also Chose
and Thomas Cooper Caleb Benjamin
High N. End
and Benjn Wait
way W. Side
and Joab Hoisington
Survey
Middel
and Sam' Stone
ers
S. End
also Chose
Andrew Norton Deer reff John Benjamin
fence viewers
also Chose
and Solomon Emmons Simeon Mill
Hog
and Israel Curtice
Cunstables
and Sam' Stone Ebenezer Hoisington Pound ceeper
also Chose
also Voted to Buld A Pound the Ensuing year
also Voted that Every man inhabitant in Sd Town Shall Give one Days work each for the Bulding A pound and the clering the Burying yard.
also Voted to Desmis this Meeting
Benjamin Wait ) Moderator first Warrant.
Written in a very ornate hand on the back of the paper con- taining the record of this first Windsor town meeting there appears what seems to be this mysterious inscription :
"Send To his Excellency
Sir Jeffry Amherst."
also chose
Select
and Ezra Gilbart
men
also Chose
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ORGANIZING A TOWN GOVERNMENT
It will be perceived that this town organization took place on the day of the year which was then and still is observed in New Hampshire as the day of the annual town meetings. It will also be observed that the officers chosen correspond to those customarily chosen at that period at New England town meetings. Had the organization been effected in accordance with the laws and practices of the Province of New York, of which Windsor was then a part, the town offices to be filled would have been different. For example, instead of selectmen there would have been a supervisor, trustees, and commis- sioners. It may be noticed that the Stones and the Waits seem to have controlled the situation. Thomas Cooper, who was the clerk of the proprietors and who was far more compe- tent to be town clerk than David Stone, had married Peace Dean and paid the penalty of this alliance by being relegated to the innocuous post of tythingman. The Deans, although the captain had been bold enough soon to return to Windsor and retake possession of his land, were of course ignored in the division of offices. Colonel Nathan Stone and Steel Smith were not among those elected to office but both were active mem- bers of the new New Hampshire party. The former was mod- erator of the proprietors' meeting of 1769: the latter of the proprietors' meeting of 1770. The record of this town meeting of 1769 seems wholly to dispose of the common assertion that Thomas Cooper was Windsor's first town clerk.
Utterly unlawful as the Windsor meeting was and lacking in authority as were the elected officers, the townsmen put their organization to its intended work in short order. We are indebted to Mr. B. H. Hall for the story of their activities at this stage. At page 651 of his History of Eastern Vermont he gives the following history of the first attack on John Grout by the people of Windsor.
Zedekiah Stone and Joseph Wait, two of the three newly chosen selectmen and overseers of the poor of Windsor, filed with Colonel Nathan Stone as a justice of the peace (albeit under commission from Governor Sir Henry Moore of the Province of New York), a notice that they had received a com- plaint from the principal inhabitants of the town setting forth that John Grout and his wife and family of five or six children
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who had lately come to Windsor were "likely to become chargeable to the town." This was the familiar proceeding launched in all New England towns against new comers who did not appear to be in easy circumstances, and required the respondents either to leave town or to give sufficient security that they would not become public charges. The two overseers of the poor therefore asked a warrant for Grout's removal or, in the alternative, a satisfactory bond. Colonel Nathan Stone of course granted the desired warrant which was placed in the hands of Joseph King and Ezra Gilbert as constables to exe- cute. After some brief delay which was allowed on Grout's request 1 and possibly to attempt the hopeless task of obtain- ing security that would satisfy the Windsor people Grout was removed from town and took up his residence in Chester. It was a striking case of the irony of fate that a lawyer should, in a proceeding under color of law but without the exercise of lawful authority, be railroaded out of Windsor township.
1 Among the Phelps Papers in the Brattleboro Public Library is what purports to be the memorandum of Grout's promise to the constables that he would be ready to leave town in a few days. It reads as follows:
"Windsor, April 22ª, 1769.
"Mr. Benja. Wait and Mr. Ezra Gilbert Informing me they have a Warrant to Carry me out of this Town with my Family, and as it is to my Interest greatly to Tarry till next Tuesday-on my Desire they have agreed not to do it untill next Tuesday, when I hereby promise that all my Family shall be Ready at my Dwelling house in Windsor to be carried out of Town if they shall then think proper to do it at nine of the Clock in the Forenoon. And as this is a Favour of my Asking, I as a Lawyer Say that Messrs. King and Gilbert ought to grant it in Tenderness to me and that no Disadvantage to them or the Town of Windsor Can ensue by means thereof, this I declare on my Honor and as a Lawyer. "John Grout" "This proposal made to Messrs. King and Gilbert in presence of her Lucy X Dean mark"
CHAPTER XV THE DEAN BOYS ARE ARRESTED
IN the belief that the Honorable Jared Ingersoll, of New Haven, as Judge of the Admiralty had jurisdiction of viola- tions of the timber law at Windsor, Governor John Wentworth as surveyor-general of the King's Woods wrote to him a letter on February 3, 1769, complaining of Captain Dean, Willard Dean, and William Dean, junior. He reported that seventeen trees had been unlawfully felled by the Deans between No- vember 20, 1768 and January 1, 1769, gave the measurements of the trees, stated that he had made a journey to Windsor "in this extreme rigorous season and examined into the facts on the spot" and desired process issued against the three offenders.
After a long delay, Judge Ingersoll wrote that not he but Judge Richard Morris1 of New York had jurisdiction of the case and he reported having forwarded to Judge Morris the governor's letter. To the latter the governor wrote on May 5, 1769, requesting instruction as to the proper form for making a complaint. It seems, however, that Judge Morris had been very forehanded and had already employed the attorney- general of the Province of New York, John Tabor Kempe, to file the necessary papers for starting the prosecution. Then followed a correspondence between the governor and John
1 Judge Morris was the father of General Lewis R. Morris, a distinguished Ver- monter who settled in Springfield. The latter for several years was engaged in dealing in Windsor lands in partnership with Elijah Paine, of Windsor and Wil- liamstown. Under the Vermont Act of October 27, 1784, lands of Judge Richard Morris in Springfield were seized, together with lands of Stephen Ward in Wind- sor, by Briant Brown and Benjamin Wait, both of Windsor, as commissioners to make reprisals (Vt. Journal, Nov. 10, 1784). In presenting to his son, Lewis R. Morris, a chest which had been captured from the Hessians at the Battle of Trenton, Judge Morris offered the suggestion that his son might find it of use "to secure your valuables from that dishonest and reckless population of the Green Mountains who hold out against the true and just claims of New York" (Proc. Vt. Hist. Soc., 1911-1912, p. 59).
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Tabor Kempe who appeared as advocate-general, proctor in admiralty and advocate for Governor Wentworth. In the governor's letter addressed to Kempe under date of June 24, 1769, and written in ignorance of the fact that Captain Dean had thought it safe to accept a re-conveyance of his Windsor lands from Grout, it was suggested that, as Captain Dean had transferred all his property and had fled, it might not be worth the expense to send a marshal all the way from New York to Windsor, but that since some notice ought to be taken of the offence it would be well to depute Benjamin Whiting, of Newbury, with authority to attempt the service of papers.
So important did the governor consider the case that he reported it on July 10, 1769, to Lord Hillsborough, the lords of admiralty and the commissioners of the Navy in England and did not fail to say that he himself had made a journey to Windsor "in sixteen days, having travelled 300 miles in ex- cessive cold and snow thro' a wilderness almost uninhabited." To these officials he also reported that the offenders had disposed of their estates and absconded. On July 21, 1769, he wrote a further letter of instructions to Kempe containing this highly suggestive advice: "It is the elder of the Deans that has aliened his estate and absconded, but you'll please not withstand to pursue the prosecution to try at least the validity of his conveyances." What the governor had in mind by this was clear enough to a lawyer of Kempe's understand- ing and was the governor's first hint of a purpose, soon to be unmistakably declared, of seeking the forfeiture of Captain Dean's land by virtue of the terms of the Benning Wentworth charter of Windsor.
To Kempe, who with James Duane and Walter Rutherford of New York, had been granted twenty-six thousand acres of lands in Vermont by Lieutenant-Governor Colden in 1765 and whose title depended on the total invalidity of the prior Benning Wentworth town charters, this hint must have been illuminating as well as startling. Perhaps he regretted having started the prosecution so precipitately. If the Benning Went- worth charter of Windsor was valid enough to support for- feiture proceedings for its violation it was valid enough to support a title to real estate. If this charter founded a valid
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title to real estate then the Wentworth charters for Arlington, Sunderland, and Manchester did likewise. If there was a valid New Hampshire title in Arlington, Sunderland, and Manches- ter where Kempe, Duane, and Rutherford had later been given their twenty-six thousand acre grant by New York, their New York title amounted to nothing.
The complaints or informations of Governor Wentworth, sometimes spoken of in admiralty law as libels in personam, were drawn in John Tabor Kempe's best style and were ad- dressed to "the Worshipfull Richard Morris Esquire, Judge of the Court of Vice Admiralty for the Province of New York in America." They alleged the felling of seventeen white pine trees by the Deans at Windsor since November 20, 1768, that each of the trees was of twenty-four or more inches in diameter at three feet from the ground and that all were fit for masts for the Royal Navy. For this, the libels asked against each of the defendants a judgment of fifty English pounds for each tree or an aggregate of fifteen hundred and thirty pounds in the currency of New York. On these libels, John Mckesson, the deputy register of the vice admiralty court, signed three separate warrants, called writs or precepts, for the arrest of the several defendants. These papers were dated on April 26, and were returnable forthwith.
After conference with Kempe in July, McKesson made the subpænas for the witnesses returnable the second Monday of October, 1769. Thereupon Thomas Ludlow, the provost mar- shal, "upon the recommendation nomination and Risque" of Governor Wentworth designated Benjamin Whiting as the deputy marshal to serve the papers and forwarded them to the governor to be handed to Whiting. For the history of the next steps in the prosecution we are indebted mainly to Mr. B. H. Hall.
Whiting, having received his instructions on August 27, reached Windsor with his warrants, subpænas, and a brace of pistols on August 29, only to find that Captain William Dean had gone to Springfield, Massachusetts, on business. Willard Dean and William Dean, junior, however, were at home and Whiting easily placed them under arrest at their father's house. Here he intended to keep them for a couple of days
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THE BIRTHPLACE OF VERMONT
while he himself was interviewing possible witnesses in the neighborhood and working up the case. That his prisoners should not escape that night he exhibited to a magistrate (who was probably Esquire Israel Curtis) a proclamation issued by Governor Sir Henry Moore requiring all officers in the province to aid the deputy. If it was Curtis to whom Whiting applied it will be clear from what follows that little inducement was needed. At all events, as Governor Wentworth subsequently reported to Lord Hillsborough and the officials of the British Navy and Treasury, the magistrate detailed six men to assist in controlling the two Dean boys who were "somewhat turbu- lent."
Mr. Hall gives the names of seven assistant captors. For the duty of guards for the night Whiting chose Benjamin Wait and Samuel Patrick whom he supplied with pistols and ammunition. Instructing them to shoot if the prisoners at- tempted to escape or took advantage of attempted rescue, he left. In the morning Wait was relieved by James Rosebrook who remained on guard during the day with Patrick while the Dean boys were preparing for the sorrowful journey to New York City. Towards evening there appeared at the house Solomon Emmons and David Getchell who announced that they had been sent by Israel Curtis, justice of the peace, with orders to relieve Patrick and Rosebrook as guards for the night. Emmons and Getchell then took the weapons and re- mained on duty until next morning. On the morning of the 31st of August, while William Dean, junior, was standing by the door of their home, Israel Curtis came up. Perhaps some words ensued. Evidently young Dean told the 'Squire to keep out. Mr. Hall says that Curtis, upon this, seized Dean, and pushing him a considerable distance, shouted "You blockhead, you rascal, how dare you bid me not to come into your house ? Don't you know that I am a justice of the peace? I have a right to break into your house and break all the locks that are in it, and have the right to pull your house down over your head, and, by the Living God, I will make you know it in less than one month." Upon that, the angry justice took the pistols from Emmons and Getchell and handed them to Enoch Judd and Elnathan Strong with orders to "fire the prisoners through
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