USA > Vermont > Windsor County > Windsor > The birthplace of Vermont; a history of Windsor to 1781 > Part 24
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First, as a principle to underlie the establishment of the new government, Hoisington wished it understood that all civil power originated in the people. As an extension of that principle he would insist that the people, rather than the legislature, ought to choose the executive officers. Second, the delegates should strive for a code of laws which would place the liberty, property, and everything dear to the people on a firm foundation. This came pretty near to the familiar "Life, Liberty and the Pursuit of Happiness," and perhaps was quite as sound. A few of the most essential laws, the sub-committee thought, would be those for the support of schools and of ministers of the gospel. As a matter of precedence, if not of importance, the puritanical Hoisington would put the support of the ministers first. He would have a court of justice to try criminal cases. The judges of this court should not only be
1 Id. See also B. H. Hall's History of Eastern Vermont, p. 270.
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good and capable men, but should be residents of Cumberland County. Hoisington desired no judges sent in from outside to preside over the fate of Cumberland County prisoners and take away the fees or salaries of office, but he seems to have been willing that such judges should be appointed rather than elected. Civil causes he apparently would leave to local jus- tices of the peace selected by the people. What is virtually the present Vermont method of choosing the grand and petit jurors Hoisington detailed at length and recommended.
The instructions then proceed to touch on certain desired reforms in legal procedure and in the regulation of fees for sheriffs and attorneys. The fact that the instructions went into such detail in matters pertaining to courts, judges, law- yers, and litigation showed how much of a burden to the people had been the bench and bar of the county from the time of the Grout riots in Windsor and Chester until the over- throw of the courts at Westminster. A frequent change in magistrates Hoisington thought would tend to prevent corrup- tion and would "keep up that equality of mankind in which by nature we are all formed." On the latter point he was anticipating the Declaration of Independence by nearly a fortnight.
Although we have fairly summarized these instructions they became, as will presently appear, so vital a link in the chain of Vermont's history and foreshadowed so much of the sub- stance of Vermont's organic law that we must give their text in full.
"Instructions for the Delegates of Cumberland County.
"Gentmen: Haveing received a hand bill from the Honour- able Provincial Congress, Recommending to the Inhabitants of this county to Chuse Delegates & Invest them [with] Power to Establish a form of Government, &c., We, the Committee for this County, being warmly attached to the Noble Cause of Liberty, and ardently Desirious to have the foundation of Government so laid that the Liberties of the People both civil and religious may forever remain sacred and Inviolate, we think it Our Indispensable duty to give you the following Instructions, and reposing the Highest Confidence in your
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Honour & Integrity, do rely Upon it that you will to the Utmost of your power Endeavor to Carry the same into Exe- cution. We trust the Honourable Congress will be Very far from passing Censure on us for being thus Jealous of our Liberties, Especially when they Consider that in time past this County has been much imposed upon in haveing Certain Foreigners put into High places of Emolement & Honour in this County, to the Great Grief of Virtues and Honest men.
"1t. We instruct you to use your influance to establish a Government in this Colony agreable to this maxim, (viz.,) that all Civil Power (under god) is Originaly in the People, and that you in no instance in your publick Capacity will do any thing to abridge the people of this fundamental right. We furthermore beg leave to say that in Our Opinion the repre- sentitives duly Chosen in the several Countys in this Colony, when Conveand at New York, to all intents & purposes have full power of Legislation, & that it would greatly abridge the People of their rights should the representatives presume to make Choise of a Governor, Lieut. Governor, &c., To Act and Transact business independent of the people.
"2ยช. That you use your best influence in Congress to adopt a Code of Laws whereby the Liberty, Property & every thing dear to the Inhabitants of this Colony & America in General shall be founded on a permanent Basis-a few of which Laws we Humbly beg leave to suggest might be made or enacted, (viz.,) Laws for Establishing Religion & Litriture-that min- isters of the gospel might be supported and Schools set up, which must have a Tendency to promote Virtue and Good Manners.
"3d. We think it would much Conduce to the happyness of this County to have a Court of Justice as soon as may be properly organized, to take Cognizance of all Criminal actions, at the same time we desire that men of Character, integrity, Knowledge and Virtue who belong to Our Own County might sustain the offices in such an Important Department. The Ancient Tryal by Jury we have a great Veneration for; it is a Noble Barrier against Tyrany. In Order that our future Courts may be supplyed with Grand Juriors we humbly re- quest that the Honourable Congress would adopt the follow-
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ing method for this County, (viz.,) that Each Town thro' the County at their Annual Meetings shall Elect their proportion of men who shall serve as Grand Jurors the Insuing Year, and that their names shall be Properly Returned in the Clerk's Office, in order that the Jury when so Choosen may inform the advocates (who shall prosecute Criminal Actions) of all mis- demeanors in the County passing within their Knowledge; the pette jurors in like manner we would be glad might be Choosen Annually, and that their names being enroled may be returned in the Clerk's Office, and when so returned, may be drawn by lot for the service of the insuing year. The Gentlemen of the Law (if they should be thought necessary) we hope may be men of integrity, Learning and Abillity. In a particular man- ner we desire and insist on it that no Freeholder or men of Interest in a Civil Action on the first process shall be appre- hended by Capias, but that they may be summond according to Ancient Usage Excepting Under Certain Circumstances when there is not a sufficiency of Estate to answer Debt and Cost; that Constables as well as sherrifs might have power to serve all processes; that all Deeds may be recorded by the Town Clerk in Each town; that Attorneys fees and all Other Exhorbitant fees might be lowerd and reduced to the Standard of Justice. Lastly, we beg leave to suggest that in Our Opinion a frequent Change of Magistrates Tend to prevent Corruption and keep up that Equallity of Mankind in which by nature we are all formed; therefore we humbly request we may be Indulged in this particular: we desire that Each Town in this County might nominate their Own Justices, and that they might not be appointed without such Nomination. That Jus- tice, Religion & Virtue may prevail in this Colony, & that Pease & Tranquillity may be restored thro America is the sin- cear desire of the Committee of Safety for Cumberland County. "P.S. We desire that a Court of Probate might be Estab- lished in this County."1
Nowadays, as we all know, instructions to delegates, like party platforms, are soon forgotten or ignored. Something both interesting and unusual saved Ebenezer Hoisington's code of instructions from a similar fate. Almost directly after
11 Gov. & Coun., 348-350.
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the appointment of Hoisington's sub-committee Charles Phelps,1 of Marlborough, who seems not to have been a mem- ber of the county committee, presented to that body the draft of a letter which he wished the committee to send to the Pro- vincial Congress. This proposed letter alluded to the instruc- tions which Hoisington's sub-committee were then writing, and it conveyed an implied threat that, if the frame of govern- ment to be established for the new State of New York should not conform to the specifications which Cumberland County's Committee of Safety were embodying in the instructions to their county delegates, the people of the county would feel at liberty to secede. While the language of the letter did not lit- erally go to that extreme, it was so interpreted by the New York Convention, and, later, by the Cumberland County Committee. Although Charles Phelps's sensational proposal might be characterized as a piece of impudence and arrogance, it could not be dismissed as unimportant. Hence we find in the record of the county Committee of Safety: "Voted to de- liberate on a piece by Esquire Phelps."
We have the hearsay testimony of John Taylor, who visited Cumberland County late in the autumn of 1776, that not all of the members of the county Committee of Safety knew of Charles Phelps's proposal or that it was finally signed by the chairman and sent to New York along with the instructions. In view of the fact that three of the county committee-men dissented from the action of the committee and that the chair- man, James Clay, is said to have deprecated the move, there can be little doubt that the wisdom and propriety of sending the Phelps letter were fully debated by the whole county com- mittee, and that if the minority could have won more support among the members they would have done so. So it was for- mally decided on June 21 to send to New York's convention this remarkable threat:
"Upon the receipt of hand bills from you sent to us, pur- porting the expediency of instituting civil government accord-
1 Charles Phelps, it will be remembered, was chosen with Colonel John Hazel- tine and Ethan Allen as a member of the committee to petition the Crown for separation from New York after the Westminster Massacre.
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ing to the exigencies of the County, the major part of the people have agreed thereto, and have elected their delegates, and empowered them with their authority, to agree with you in forming a mode of government independent of the Crown, in the most mild, just, and equitable manner possible, for regulating their internal police, and for the preservation of the rights, liberties, and property of the people. This power is subjected, nevertheless, to those regulations, conditions, and restraints herewith transmitted you by the hands of the dele- gates of this county; to all which they are by their constitu- ents in the premises, limited and restrained in such manner, that if they break over and violate those sacred instructions herewith sent you in behalf of us and our constituents, in mat- ters of such infinite importance and delicacy, the county com- mittee declare, in behalf of the free, patriotic people thereof, that they mean to and do hereby resolve, to reserve to them- selves the full liberty of an absolute disavowance thereof, and of every clause, article, and paragraph of such an institution."
The real importance of the Phelps letter lies in the passage just quoted. Historians, however, have dwelt more on the subsequent passages which revealed one of Charles Phelps's hobbies that almost had become an obsession with him. He was a man of Massachusetts origin and for years he labored for a union between Massachusetts Bay and the New Hamp- shire Grants. It is probable that in this plan of his lay the whole motive of the letter; yet it is clear that according to the interpretation put upon his composition by his colleagues on the New Hampshire Grants and by the convention in New York City, the vital points were the lack of a spirit of alle- giance and the threat of revolt and secession. According to John Taylor, Phelps was "the oracle in them parts." By this we should not be misled. For while Phelps was of good fam- ily, was possessed of education beyond most of his neighbors, and was esteemed by them for his fluency and verbosity in written composition, he was of such eccentricity that his actual leadership amounted to little. It was because of the intrinsic merit of his letter in wording thoughts which appealed to the restless settlers that they adopted his composition as their
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own. At the same time the balance of his letter deserves its place in history and here it is:
"Also, it is hereby acceded to, and fully meant and intended by the good people of the county, that they, notwithstanding this compliance with the requisition of the said handbills above mentioned, so directed to us for the purposes aforesaid, have fully and absolutely reserved to themselves and their heirs, &c., the full liberty of pursuing their former petition in behalf of the people, prepared some years ago, and referred to the great and General Assembly of the ancient, ever respectable, and most patriotic government of the Massachusetts Bay province, that the whole district described in the said peti- tion, may be hereafter reunited to that province, and reserv- ing to themselves also the right of offering their pleas, argu- ments, and proofs, in full, to effect a reunion thereof, to that ancient jurisdiction, for those important reasons to be adduced when, where, and before whom the parties concerned shall be admitted to offer the same."
The deliberations on the Phelps letter were finished on the morning of June 21.1 In the afternoon Hoisington's sub-com- mittee reported the code of instructions, which was, "after being read sundry times, Voted Paragraff by Paragraff & ac- cepted to be the Instructions for our Delegates Choosen to go to New York to set in provincial Congress." 2
The session of the Committee of Safety lasted through the morning of June 22. Some local litigation received attention, the credentials of the delegates to New York were signed, and various sub-committees were appointed. Ebenezer Hoisington secured appointment to a committee to write a letter to Abraham Ten Broeck, of New York. He was also elected to another committee to assist the regimental colonels in enforc- ing the resolves of the Continental Congress in Cumberland County. Windsor's Town House was designated as the place of a meeting, to be held on June 26, at which the commander of the Upper Regiment and one "sub-committee-man" from each town "in the same regiment" should choose a captain 1 1 Gov. & Coun., 347. ? Id., 348.
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and two lieutenants to enlist a company for service in Canada.
No record of proceedings at Windsor on June 26 has come to light nor is it known that the intended meeting actually took place. There was a long "special meeting" of the Cum- berland County Committee of Safety at Westminster, from July 23 to 26, devoted mainly to judicial matters.1 As Mr. B. H. Hall points out, the functions of the County Committee of Safety, as well as those of the separate town committees, were executive, legislative, and judicial.2 One sees from an examination of the record in Governor and Council how appro- priately the Windsor town clerk had described Windsor's first Committee of Safety as "a committee to regulate and decide controvercies in the town." The spirit of litigation on the New Hampshire Grants was flourishing in 1776. We of Wind- sor know how it has survived.
1 1 Gov. & Coun., 351-355.
2 B. H. Hall's History of Eastern Vermont, p. 263.
CHAPTER XXXI WITH WHOM TO ASSOCIATE
THE special meeting of Cumberland County's Committee of Safety had hardly adjourned when delegates from the towns on the west side of the Green Mountains assembled for a con- vention at the house of Cephas Kent in Dorset. Their main object was to hear and take action upon the report of Heman Allen's visit to the Continental Congress. The notice of this meeting, while warning only inhabitants on the west side of the Green Mountains to attend, extended an invitation to all the towns on the Grants. Since it bears date June 24, it was presumably posted for a month. Besides mentioning Heman Allen's expected report, the warning specified as agenda the ascertainment of the delegates' preferences as to "associating" with the Province of New Hampshire or doing duty with the Continental troops only as members of the district. The con- cluding article of the warning or warrant covers "any other business ... for the safety of the liberties of the Colonies in General and the N. Hampshire Grants in particular." 1
Pursuant to the warning forty-nine delegates gathered at Cephas Kent's on the morning of July 24. They devoted the first day wholly to Heman Allen's report, the substance of which we have heretofore recited. Doubtless the one impor- tant item of his narrative was his story of the recommenda- tion made to him by some members of the Continental Con- gress and others that the inhabitants of the Grants should not "connect or associate with the honorable Provincial Congress of New York or any Authority derived from, by or under them, directly or indirectly, but that said inhabitants do forthwith consult suitable Measures to Associate and unite the whole of the inhabitants of said Grants together." 2 That Heman Allen and perhaps other of the settlers got some such advice from members of the Continental Congress and others
1 1 Gov. & Coun., 14.
2 1 Gov. & Coun., 20.
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at some time during the year 1776 is pretty clear. Not only is it indicated in the Life and Services of Samuel Adams,1 but a Mr. Seeley (perhaps Abner Seeley, of Thetford) reports hav- ing conferred with Colonel Smith, of Philadelphia, and Roger Sherman on the possibility of making a separate state out of Cumberland and Gloucester counties;2 while, according to John Taylor, in his letter dated November 3, 1776, there had come from Samuel Adams to Seth Warner the specific advice that the whole of the Grants ought to petition the Continental Congress for separate statehood.3
At this Dorset convention of July 24 were such characters as Jonas Fay, Joseph Bowker, and Thomas Chittenden. There was also present, as a delegate from Colchester, Ira Allen. Early in the year Ira Allen, the youngest brother of Ethan and Heman, having had his fill of a soldier's life in Canada, returned to the New Hampshire Grants with the purpose, as he said, of devoting himself to the support of the New Hamp- shire land titles.4 He says that he was among the first to pro- ject the idea of having a separate state.5 In the course of time he became a leader in that movement. With as much education as his brother Ethan, quite as unconcerned over means or morals, equally inclined to boast, with more appe- tite for politics and less for war, he had his eldest brother's faculty for writing and soon gained the recognition of the set- tlers as one of their dependable brief-writers and advocates. A spiritual side and that common attribute called "a New England conscience" seemed as lacking in Ira Allen as in Ethan. This circumstance, perhaps more than any other, accounted for that respectable minority of Vermont patriots who never fully trusted the Allens or their intimates.
Less noted, but, for the occasion, highly important mem- bers of the Dorset Convention of July, 1776, were Josiah Fish and Samuel Fletcher, of Townshend. The latter was the son- in-law of Colonel John Hazeltine, who probably was instru- mental in sending these two townsmen of his across the Green Mountains. In the pervading spirit and conception of most Vermont historians, Mr. E. P. Walton observes that to Towns-
1 2 Life and Services of S. Adams, 358-359. 2 4 Doc. Hist., 555.
32 Jour. N. Y. Prov. Cong., 317. ' 3 Gov. & Coun., 418. 5 Id
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hend belongs the honor of sending the first delegates from the east side of the Green Mountains to attend a convention on the west side.1 Assenting to this, we should add that the con- vention which assembled at Dorset on July 24, 1776, was the first on the west side of the Green Mountains to have the honor of being attended by delegates from Cumberland County.
The importance of these two delegates lay largely in the fact that one of them-Samuel Fletcher-was a member of the Cumberland County Committee of Safety and was fresh from the committee's session of June 20 to 21, which had adopted, signed, and forwarded to the New York Provincial Congress the Hoisington code of delegates' instructions and the Phelps letter, with its threat of secession. Knowledge of the defiant stand of Cumberland County's Committee of Safety thus came, first-hand, through Fletcher to the dele- gates assembled at Dorset, and must have encouraged, stimu- lated, and emboldened them in the secret measures which they decided to follow.
We use the term "secret" advisedly and for the purpose of bringing out an important distinction to be noted at this period between the meetings in Cumberland County and those on the west side of the Green Mountains. While all these meetings were local or sectional, those in Cumberland County were distinctly county organizations in association with other similar organizations of the Province, and affiliated more or less directly with the central convention at New York City. The meetings of the settlers on the Grants to the west of the Green Mountains bore no such relation either to the county or provincial committees or conventions, made no regular reports to other bodies, and were more in the nature of private proceedings. The modern American catch-words, "open covenants, openly arrived at," had not then arrived to fascinate, ensnare, and embarrass.
At this time Deacon John Sessions and Major Simon Ste- vens, as Cumberland County's delegates to the New York Provincial Congress, had been at their post of duty for a fort- night. They had arrived in White Plains on July 9 and had
1 1 Gov. & Coun., 24.
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presented their credentials, and, presumably, the Hoisington code of instructions and the Phelps letter. Their colleague, Colonel Joseph Marsh, who had been in the Provincial Con- gress until late in June, reached White Plains on July 22.
Under the circumstances and with the record of the Dec- laration of Independence spread in full in the public prints, the Dorset convention of July 24 and 25, 1776, was less radical in action than one might have expected. It is true that after voting to "pass over" the subject of associating with New Hampshire, the delegates did vote almost unanimously "that application be made to the inhabitants of said Grants to form the same into a separate district." Of course, such a vote car- ried potentialities both patent and latent, but one is hardly warranted in the belief that the resolution itself went further than a determination to sound the sentiments of the settlers. Pursuant to that determination, the convention appointed Jonas Fay, Heman Allen, William Marsh, Samuel Fletcher, and Josiah Fish a committee to treat with the settlers on the east side of the Green Mountains, and to exhibit the proceed- ings of the convention.
"Associating" with New Hampshire or with New York or by themselves had, among the settlers, a specific meaning at that time. It meant subscribing to an agreement to defend the liberties of the united colonies against Great Britain. Whether it would be altogether safe, in view of the question of land titles, to sign an association agreement in the form cir- culated by New York authority and as acknowledged citizens of that Province or State was very doubtful. To subscribe to New Hampshire's association agreement seems to have been attractive to but few. Some towns, as, for example, Towns- hend, Springfield, and Weathersfield, in the first enthusiasm of the Revolution had subscribed to forms of association cir- culated by New York. But on reflection the more prudent course now seemed to be the signing of a form of association which would not commit the inhabitants of the Grants to per- manent or even temporary union with any one of the thirteen revolting colonies. Therefore the Dorset convention formed and subscribed to the following "Association," which, as the members believed, would sufficiently preserve their rights as
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land owners under New Hampshire titles while pledging sup- port to the Revolutionary cause:
"This Convention being fully sensible that it is the Will and Pleasure of the honorable the Continental Congress that every honest Friend to the Liberties of America, in the several United States thereof, should subscribe an Association, bind- ing themselves as Members of some Body or Community to stand in the defence of those Liberties; and
"Whereas it has been the usual custom for individuals to associate with the Colony or State which they are reputed members of: Yet nevertheless the long and spirited Conflict, which has for many years subsisted between the Colony or State of New York and the inhabitants of that District of Land Commonly Called and known by the name of the New Hampshire Grants, relative to the title of the Land on said District, renders it inconvenient in many respects to associate with that Province or State, which has hitherto been the sole reason of our not subscribing an Association before this.
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