USA > Vermont > Windsor County > Windsor > The birthplace of Vermont; a history of Windsor to 1781 > Part 11
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THE DEAN BOYS ARE ARRESTED
or break their bones with clubs should they attempt to escape." So terrifying was this scene to poor Rachel Dean, the wife of William, junior, that she fainted.
It is not an altogether pleasant task to recount such epi- sodes as this which is perhaps, after all, a fair sample of what might be expected to happen in the backwoods in those early days; and it is somewhat disquieting to find our substantial Windsor settler, Israel Curtis, acting the part of a swash- buckling bully and terrifying women.
A little before noon on August 31, Whiting reappeared, placed the prisoners in charge of Benjamin Wait and James Rosebrook and ordered the party to start for New York City by the way of Hinsdale (Vernon). Whiting, on horseback, preceded them alone. They followed more slowly-both guards and prisoners on foot-and the evening of September 1 found them at Ranney's tavern in Westminster. Here, who should appear but John Grout, attorney at law, of Chester ? He must have heard of the arrest of the Dean boys by a mes- sage from Windsor and have been requested to meet them at Westminster. He took charge of their case at once, delivered a lecture to Wait and Rosebrook on the impropriety of carry- ing loaded pistols when the prisoners did not offer to escape, and asserted that in the absence of Whiting nobody had au- thority to keep the prisoners under arrest. On the promise of the Dean boys that they would follow their guards sub- missively, the pistols were unloaded. Then, at the request of the brothers, Grout started for Springfield, Massachusetts, to apprise Captain Dean of his sons' predicament and to get for them pecuniary assistance. On Saturday evening, Sep- tember 2, the prisoners, guards, and Grout made Hinsdale (Vernon) where they rejoined Whiting who had, in the mean- time, made another arrest. What took place in Hinsdale is told at great length and in every detail by Mr. Hall and in various papers printed in the fourth volume of the Documentary History of New York. While the matter was deemed important enough to be made the subject of an investigation by the New York authorities on Governor Wentworth's demand and to be reported in full to the British home offices, it bears so direct- ly on the subsequent course of events in Windsor that the
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story will have to be recounted here. The incidents, in brief, follow.
Benjamin Wait, Deputy Whiting, and John Grout had con- versation with each other at Hinsdale on the evening of Satur- day, September 2. Grout seems to have opened the discussion by urging Whiting to take the prisoners through to New York by way of Massachusetts and Connecticut because a good road lay that way and because the law permitted officers to take prisoners through those colonies, and because the path over the Green Mountains was extremely difficult. Here Benjamin Wait, who had become suspicious of Grout, inter- posed and informed Whiting of what Grout had said while they tarried at Westminster. Grout thereupon repeated to Whiting what he had previously told Wait and Rosebrook, namely, that the two latter were not lawful custodians of the prisoners and that nobody had a right to intimidate the pris- oners by firearms. Next morning Grout left for Springfield, Massachusetts, while Whiting, Wait, Rosebrook, and the two Deans passed the Sunday at Hinsdale.
On the morrow, which was Monday, September 4, early in the morning, appeared Judge Samuel Wells, of Brattleborough. Wells, who has been mentioned before, was a judge of the court of common pleas of Cumberland County, and at that time was perhaps the most prominent and influential settler on the New Hampshire Grants and was a popular character. He had had a conversation with Whiting in Brattleborough on the Saturday previous and they had discussed the matter of the best route to New York. Whiting had said his prisoners were at Hinsdale, which was several miles south of the path leading across the Green Mountains, and that he understood that it would be lawful to carry the prisoners through Massa- chusetts and Connecticut on a warrant issued by the New York court of vice admiralty. Wells had replied that he knew of no such law, but that there would be great difficulty in finding the way through the woods and across the Green Mountains. Whiting had remarked that he would get advice before decid- ing, and then left for Hinsdale.
Judge Wells's arrival in Hinsdale was at the moment when Whiting was going across the Connecticut River to New Hamp-
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shire to get the advice of Daniel Jones and thus Judge Wells had opportunity to talk with Benjamin Wait and the two prisoners on the choice of routes. Wait said he believed that Whiting would choose the path through the woods, to which Judge Wells replied "You had better go down the river and then you can go by water and have a good road all the way." Judge Wells then mentioned the chance that if they went through Massachusetts Grout might secure the arrest of Whit- ing and the two guards on a charge of false imprisonment and obtain the release of the Deans and that if this were accom- plished the Deans would never be captured again. On return- ing from consulting with "Lawyer" Jones, Whiting announced that he believed he would go through the woods. There is some conflict of evidence as to what was next said, but Deputy Whiting states that Judge Wells then advised him to go through Massachusetts and that there would probably be no difficulty in so doing. On learning that Whiting was deter- mined to try the path across the mountains Judge Wells de- clared that they would never succeed in getting through the woods.
On Tuesday, September 5, Whiting, with the guards and prisoners, retraced their steps to Brattleborough to take from there the path over the Green Mountains. At Brattleborough, at Judge Wells's saw-mill, the party again fell in with Judge Wells who on this occasion spoke more emphatically. He ex- pressed the wish that the Massachusetts route had been taken and that Grout might intercept the party and free the prisoners. He asserted that the arrest of the Deans was a spiteful action on the part of Governor Wentworth and that he (Wells) would like to help the Dean boys and would liberate them if he could. Major John Arms, the sheriff of the county, who happened to be present, asked all hands to stop at his house for refreshments. The invitation was accepted, Judge Wells sent to his own house for an extra supply of rum, Major Arms provided a dinner and all drank freely and had a merry time until Judge Wells began to banter Deputy Whiting on what might have occurred if the party had proceeded through Massachusetts. This angered Whiting and the banquet seems to have ended in a row. Starting west from Major Arms's
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house, the Dean boys found it hard to keep pace with Whiting who was on horseback, whereat Whiting threatened to tie them to his horse and so drag them over the mountains. Judge Wells seems to have smoothed matters out so that the pro- cession finally moved off in good order.
That night Whiting, the guards, and the prisoners spent at Abel Stockwell's house in the township of Marlborough. During the night a mob assembled and threatened the rescue of the Deans. Nothing violent, however, took place and the mob soon dispersed. Whiting and Wait apparently believed that Judge Wells was in some way responsible for the gathering of the mob, but there is no evidence to support the charge.
The story, as given above, is substantially that related by Benjamin Wait in an affidavit printed in the fourth volume of the Documentary History of New York at page 387, supple- mented slightly by other accounts in the same volume. It is probably pretty close to the version that was related by Wait to the people of Windsor when he returned to his home, and it left an impression on their minds. Governor Wentworth, who soon got wind of it, was so thoroughly incensed at the conduct of Grout and Judge Wells that he wrote a sharp letter to Lieutenant-Governor Colden complaining of their behavior.
Grout interviewed Captain Dean at Springfield on the morning of September 4 and informed him of the arrest of his sons. As soon as Captain Dean had finished attending to a case of his which was pending in the common pleas court in Springfield he started for Hinsdale hoping to find that Whiting and the prisoners were still there. He reached Hinsdale several hours after they had left. The day following he went to Brattle- borough. Here he met Judge Wells who informed him that Whiting had a warrant for his arrest also. Captain Dean at Judge Wells's advice then set out for New York and overtook Whiting about thirty miles from New York City. He then sur- rendered himself to Whiting and on arriving at New York was lodged with his sons in the "New Gaol."
CHAPTER XVI
THE DEANS ENGAGE EMINENT COUNSEL
AFTER the Dean boys and their captors left Stockwell's house in Marlborough on the morning of September 7, 1769, we have no account of them until they and their father were landed in jail in New York City on or before October 2. In the interval, on September 11, had died Sir Henry Moore the gov- ernor of the Province of New York, and once again the able and aggressive Lieutenant-Governor, Doctor Cadwallader Colden, assumed command. This circumstance, though it made its mark on Vermont history, apparently did not affect the fortunes of the Deans.
On October 2, on the motion of the advocate-general, Judge Morris ordered that each of the prisoners must answer to the charges on or before the following Friday. On October 6, their counsel, James Duane, appeared in court with an answer he had prepared on behalf of Captain Dean and asked that the captain might be accorded leave to swear to its truth. To this John Tabor Kempe, the advocate-general, objected and the answer was filed provisionally without oath but with the understanding that Mr. Duane might argue the motion later. Mr. Duane then moved that each of the prisoners be released from custody on entering a general appearance as a defendant. This motion the court denied. On October 13 Mr. Duane moved that bail be fixed and on the same day argued his motion for leave to file a sworn answer. On Oc- tober 18 the court fixed bail in each case at one third the pen- alty demanded by the libels, but the prisoners finding it im- possible to procure bail remained in prison. The court also ordered that Willard Dean and William Dean, junior, must file answers within eight days and decided that none of the answers should be under oath. On this day John Tabor Kempe, on behalf of the informant, filed an elegantly worded replication to Captain Dean's answer. The court allowed Mr. Duane two days to file a rejoinder on behalf of the captain. This rejoinder
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was filed on October 21 and on the same day Mr. Duane filed answers for each of the captain's sons. On October 27, the advocate-general presented to the court Benjamin Whiting, Elijah Granger, and Benjamin Wait who were sworn as wit- nesses against Captain Dean. On November 1 the advocate- general filed written interrogatories that he intended to pro- pound. The next day he filed additional interrogatories. On November 4, Benjamin Wait and Elijah Granger were sworn as witnesses against Willard and William Dean, junior. On November 24 it was ordered in each of the three cases that "publication do pass in this cause immediately." .
The foregoing items, taken from the court records now in the keeping of the United States District Court for the Southern District of New York, while of not the slightest interest to a casual reader may strike a reader of professional training as of value in showing the procedure of that period in the ancient admiralty courts in the American colonies. What is, or should be, of interest is the fact that James Duane appeared as the prisoners' counsel. How Captain Dean, a comparatively poor man brought unexpectedly from the remote woods of Vermont to a strange and distant city, should quickly get in touch with and be able to retain one of the most distinguished lawyers in the American colonies is somewhat remarkable. All that Duane himself is known to have said on the subject is found in an affi- davit of his in which he states that Captain Dean and the two sons applied to him to defend them in October, 1769, while they were then in jail and under prosecution at the suit of the surveyor-general of the King's Woods, and that from what they told him and from "several depositions " he thought "that it was a hard prosecution" and "undertook their defence." 1 It would seem that he had not been assigned to defend them at the direction of the court.
We have already pointed out that Mr. Duane, John Tabor Kempe, and Walter Rutherford had received a grant from the Province of New York for twenty-six thousand acres of land that had previously been granted to others by New Hampshire. This might account for James Duane's willing- ness to appear as counsel in a case which plainly contained
1 4 Doc. Hist. 404.
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THE DEANS ENGAGE EMINENT COUNSEL
possibilities of serious import to one who claimed land on the New Hampshire Grants solely through a New York title. Nor is this mere surmise on the part of the writer. In Governor John Wentworth's official report of this case, addressed to the lords commissioners of the treasury and others, he says that "Mr. Duane, an eminent, patriotic lawyer was engag'd for the Trespassers . .. and in a few days it was insinuated to great numbers of rich men in New York that the successful execution of these laws would be more injurious to land- owners than the Stamp Act: which word is as infectious in America as the plague & as unaccountably seizies upon the soundest constitutions. It thus operated in this. Almost ev'ry man that heard it became alarmed, and without further enquiring took part with the prisoners,-supposing, if they were convicted, that it would be a precedent in the future; 2) 1 Here the governor adds that the landowners feared that they would lose the right to cut timber; but in this con- clusion he quite misses the point. Captain Dean knew what it meant for others if his New Hampshire title under the Windsor charter should be found sufficiently valid to support a forfei- ture on his conviction. Duane saw the point and so did John Tabor Kempe and Walter Rutherford. There was no need for Captain Dean to worry about Mr. Duane's fee, for James Duane and his friends had more at stake than the captain had. They appreciated indeed the chance that the conviction of the Deans "would be a precedent in the future."
Still, we are without information as to how Captain Dean got in touch with so prominent a lawyer in the month of October. There is a little more light on this point in an earlier letter written by Governor Wentworth to Judge Morris on October 5, 1769. The governor writes that on that day Whit- ing had reached Portsmouth from New York and reported "that thro' the arts of Mr. Dean this prosecution has been represented as ruinous to every landowner in the Province of N. York many of whom are becoming thereby his support and defence. It is therefore my indispensable duty to carry the prosecution thro' the whole course of the law, that his Maj- esty may be informed whether and wherein all the Acts of
1 John Wentworth's letter of October 22, 1770.
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THE BIRTHPLACE OF VERMONT
Parliament and reservations in the patents are ineffectual to the preservation of the Royal woods." The italics are ours.
"Ruinous to every landowner in the Province of N. York" only? Why not equally ruinous to those "gentlemen of re- spect and property" in Portsmouth, New Hampshire, whom the governor had mentioned to his friend Colonel Bayard ? It hardly seems possible that Governor Wentworth could have misunderstood Captain Dean's thrust or have failed to ap- preciate that the New York landowners held titles largely under Colden's New York grants while the citizens of Ports- mouth held exclusively under Benning Wentworth's. In all probability Judge Morris handed this letter over to John Tabor Kempe, the advocate-general, who was thus again and more definitely reminded of Governor Wentworth's deter- mination to demand the forfeiture of Captain Dean's land by virtue of the "reservation" of the white-pine timber in the New Hampshire "patent" of Windsor and Captain Dean's breach of a condition. One wonders if Kempe could have mentioned James Duane's name to Captain Dean, or whether the suggestion came from Judge Samuel Wells or John Grout.
It must immediately have occurred to such a lawyer as James Duane, if not to Tabor Kempe, that they better be securing judicial decisions upholding the validity of their own New York grant in Arlington, Sunderland, and Man- chester. Thus it was, without doubt, that they bestirred themselves to institute those famous ejectment suits in the Supreme Court of New York at Albany, in which they ap- peared as counsel for the holders of New York land titles. They realized full well that in that forum they had a good chance of victory, while if Governor Wentworth should be an antagonist as surveyor-general of the King's Woods, in for- feiture proceedings under a New Hampshire charter, they might expect a litigation carried through to the House of Lords by an adversary of power and influence far beyond their own and with a hostile interest on the part of the Crown to boot. Obviously it was better, from the lawyer's stand- point, to get the first blood in a title suit, and they believed that the impecunious New Hampshire settlers were far less formidable factors to oppose than the surveyor-general of the
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King's Woods, with his titled Wentworth patron in England.1
Of these two lawyers, although Kempe was the attorney- general of the Province of New York, Duane was the more important figure. Not only was he of more commanding tal- ents, but through his connection by marriage with the Liv- ingstons he was a man of exceptional station. Later, with the Livingstons, the Schuylers, and General Montgomery, he cast his fortune with the Revolutionary patriots, was a member of the Continental Congress, and was a factor of influence and conservatism in the early days of New York's statehood. He served his city as mayor. He was appointed by President Washington as the first Federal judge in New York. Kempe, on the other hand, remained faithful to his official post and loyal to his King. He was attainted, his property was con- fiscated, and he went to England. Before the Revolution these two men seem to have had close professional and busi- ness relations. They came to be regarded by the settlers on the New Hampshire Grants as among their most bitter and hated enemies.
1 Charles Watson-Wentworth, Marquess of Rockingham.
CHAPTER XVII THE DEANS ARE CONVICTED
CAPTAIN DEAN'S answer to the information filed against him by the surveyor-general of the King's Woods differs in some particulars from Mr. B. H. Hall's version of the case as already given. It began with complaining of the hardship of having to stand a prosecution in admiralty instead of a trial by a jury of Cumberland County, complained of arrest for want of bail and complained of the circumstance that bail had been required. The answer then proceeded to state Captain Dean's version of the facts as follows:
He had purchased a New Hampshire title for lands on the Lower Meadow in the township of Windsor. These lands he desired to clear and improve that from them he might raise bread for the support of his family. Wishing to avoid the pos- sibility of being charged with a violation of the timber stat- utes, he asked Benjamin Whiting, a deputy surveyor of the King's Woods, to mark such of the trees as were unfit for masts for the Royal Navy. This application Captain Dean made some time about the end of November or the first of December, 1768. Although Captain Dean offered Whiting "large pay" to make the desired survey, Whiting said he had an errand which called him elsewhere at the moment, but that on his return he would attend to the business. On Captain Dean's enquiring if he might cut trees in the meantime, Whit- ing consented on condition that the trees were not rolled into the river but were left lying on the land so that he might in- spect them later. Captain Dean, on reflection, thought it un- safe to act upon this informal and conditional permission, be- cause he was then at odds with two of his neighbors, Israel Curtis and Benjamin Wait, who had taken offence at the cap- tain's purchase of some land that they had been bargaining for. In fact, the captain believed that Curtis and Wait, in a spirit of revenge, had prompted this prosecution. Therefore, on the day after his talk with Whiting, Captain Dean set out
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to visit the surveyor-general himself at Portsmouth, one hun- dred and fifty miles away, for the sole purpose of having a deputy surveyor appointed for the vicinity of Windsor.
The captain asserted that on reaching Portsmouth he saw Governor Wentworth, who said he was willing to appoint an additional deputy on the recommendation of Colonel Atkin- son. Colonel Atkinson suggested the name of Simeon Olcott, whom the governor agreed to designate. Captain Dean, hav- ing been assured that the appointment or deputation would be complete in an hour, went out. At the end of the hour the captain returned to the governor's office, where he found Whiting and Captain John Peters, another deputy surveyor. Then Governor Wentworth stated that there seemed to be a sufficient number of deputy surveyors already, that both Whiting and Peters had given their word to him that they would survey the trees as reasonably as anybody else could, and that he would prefer not to increase the number of depu- ties. Still, if Captain Dean insisted, the governor would de- pute Olcott. The captain concluded to withdraw his request for another deputy, whereupon Peters said that he himself would be at Windsor directly to make the survey. Whiting also promised that he would be there if Peters were prevented.
So the captain returned to Windsor and waited. He and his sons "did frequently with great hardship and danger cross Connecticut River in the depth of winter to prevail on the said Whiting to perform the said survey," but without avail. By this neglect on the part of Peters and Whiting the captain had at his farm six oxen, two horses, and four men unem- ployed for six weeks. The captain then admits that, despair- ing of securing the promised survey, he did cut down the trees, but left them lying as Whiting had advised, and did not roll them into the river. The captain said the trees were not fit for masts, anyway, and, moreover, that he expected to be able to prove that all the trees fit for masts that had formerly stood on the property were marked by Deputy Surveyor Moses Burnham in the year 1764, and were thereupon cut and removed for the use of the Royal Navy, and that the remain- der of the trees were at the same time condemned by Burnham as unfit for the naval service. In conclusion, the captain reit-
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erated that he was induced to cut the trees merely for the purpose of clearing his land and not for the sake of the profit in the timber. Indeed, as he asserted, he had refused an offer for standing trees which were more accessible for the market than those he had felled.
The answers of Willard and William Dean, junior, follow closely the form of their father's answer, with the addition that they acted merely as their father's servants. Altogether, these pleas of the captain and his sons presented a suggestion of justification, but it was perhaps quite as well for the de- fendants that the court did not permit the answers to be sworn to, since the proofs in the case indicate a state of facts quite at variance both with those set up in the answers and with those narrated by Mr. Hall. The proofs, consisting of depositions by the three witnesses for the prosecution, were taken down in longhand as replies to the interrogatories filed by the advocate-general. Whiting's testimony seems to have been taken only in the case against Captain Dean. Wait and Granger testified in all three cases.
Whiting, whom we may call the first witness for the prose- cution, testified that he was twenty-seven years of age, a resi- dent of Newbury, a trader by occupation but usually engaged in surveying and other business. He had known Captain Dean for two years but had known him by sight for four or five. Whiting swore that in the month of January, 1769, Governor Wentworth sent for him and told him of having received from Israel Curtis the information that Captain Dean and his two sons had been cutting pine-trees fit for masts. Thereupon the witness set out for Windsor, saw the stumps and noted the size of the logs. While not an expert in masts, the witness thought the timber good, and he was the more of that belief because Samuel Stone had stated that the land on which the trees had stood was once his and he had preserved them be- cause he thought them fit for masts for the Royal Navy.
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