USA > Vermont > Windsor County > Windsor > The birthplace of Vermont; a history of Windsor to 1781 > Part 33
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48
The original Vermont Constitution, as established in Wind- sor on July 8, 1777, may be found in Slade's Vermont State Papers, at pages 244 to 255, and in the first volume of Gov- ernor and Council, at pages 92 to 103, except that both these texts prescribe the date of the first election and the date of the meeting of the first legislature as in the following March, and fix the place of the legislative session as at Windsor. Accord- ing to the Constitution as settled upon on July 8, the first election was to take place in December, and the first meeting of the legislature was to be held in January1 at Bennington.2 The changes were made by the convention delegates them- selves at a subsequent session held in Windsor on December 24, 1777, at which time the convention also accepted certain home-made interpolations in the Pennsylvania form of the "Preamble," which remained a part of the Constitution until
1 1 Gov. & Coun., p. 96, note.
2 Id., p. 215.
388
THE BIRTHPLACE OF VERMONT
1793. Of the two texts above mentioned the one in Governor and Council is especially valuable in that it prints in italics most of those provisions which differ from the Constitution of Pennsylvania.
Governor Hiland Hall, in his Early History of Vermont, at pages 268 to 270, gives a concise and satisfactory review of some of the more striking features of Vermont's first Consti- tution, although in mentioning the grant of suffrage to all men over twenty-one he omits to state that this was peculiar to Vermont. He dwells, rightly, on the anti-slavery clause and on the somewhat singular precautionary measures taken to avoid precipitancy in legislation. The frame of government contemplated but a single legislative body, composed of town representatives. In the absence of any senate or similar house, the Constitution of 1777 directed that all bills that were pro- posed should be printed for the information of the people, should be laid before the governor and his council for amend- ment and should not be finally debated by the legislature nor enacted into law until a subsequent session. An exception was made in favor of "temporary acts" introduced "in case of sudden necessity"; but even in such an emergency each mea- sure had to be submitted to the governor and council before passage. The result of this inconvenient arrangement was that most of the early acts were declared to be "temporary," and under that designation secured passage at the legislative session at which they had been originally offered.
An interesting and not unwise provision was that by which delegates to represent Vermont in the Congress should be chosen by the legislature instead of by the people. To those who now look back with pride on the very long and useful careers of some of Vermont's United States senators it seems strange that Vermont's first Constitution should have pro- hibited any man sitting longer than two years successively in Congress, prohibited his re-election until three years had in- tervened, and disqualified him forever from representing the State if he accepted any office within the gift of Congress. Even during the two years for which a delegate might be elected, the legislature could recall him at any time by elect- ing another in his stead.
389
THE CONSTITUTION
Governor Hall makes no point of the constitutional guaranty of religious liberty-and with good reason, since, after grant- ing to each man the right to worship Almighty God as his conscience might dictate, the Constitution declared "nor can any man who professes the protestant religion be justly de- prived or abridged of any civil right as a citizen," etc. The delegates who met in Windsor in July, 1777, evidently had much of the spirit shown by their townsmen, Joab Hoisington and Benjamin Wait, in 1775, when those two patriots classed "Roman Catholicks" with the common enemy. A further ex- hibition of the "religious liberty" under Vermont's Constitu- tion of 1777 is found in the declaration prescribed for each member of the legislature: "I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion." Jews as well as members of the Church of Rome were required to take notice. It seems singular that members of the Church of England should have escaped constitutional proscription at the hands of Vermont's stalwart Congregationalists at such a time. These peculiar instances of religious discrimination, which were mainly Vermont additions to the Pennsylvania Constitution, were softened in 1786 and still further subdued in 1793.
Other cases of departure from the Pennsylvania model and which are perhaps the result of fear of New York, are the article giving to "the people of this State the sole, exclusive and inherent right of governing and regulating the internal police of the same"; the article prohibiting warrants or writs of attachment against Vermont freeholders in the absence of an oath that a creditor was likely to lose his debt; and the article forbidding the transportation of any person out of the State for trial for an offence committed within the State.
As under our present system, the assembly was an unrep- resentative body-each town, irrespective of population, hav- ing a single representative, except that for the first seven years any town with eighty or more taxable inhabitants might have two representatives. A fairer and more rational arrange- ment had been put in the Pennsylvania constitution whereby numbers determined the representation; but Vermont's anom- alous system has prevailed to this day.
390
THE BIRTHPLACE OF VERMONT
Although Vermont borrowed almost all of her first Consti- tution from Pennsylvania through the agency of Thomas Young, and thus may claim the approval of Benjamin Frank- lin, who had presided in Pennsylvania's constitutional con- vention, one should not overlook the fact that Pennsylvania's State constitution was really built on the ancient foundation of William Penn's "Frame of Government." This "Frame of Government" and the "laws agreed upon in England" were "the final products of all Penn's best thinking and confer- ences, and were brought with him to the Colony in 1682. Though changed in form many times, they shaped all future constitutions of Pennsylvania, of other States and of the Fed- eral Union." 1 No wonder such a model appealed to Vermont, for Pennsylvania had become the most consistently free and prosperous colony of the thirteen and had so contented a pop- ulation that the inhabitants had hesitated to take up the Revolutionary cause in 1775.2 The studious reader will find it worth while to examine Mr. E. P. Walton's excellent note on the origin of Vermont's Constitution, at pages 86 to 89 of the first volume of Governor and Council; and not the least inter- esting item in that connection is the fact that Penn's "Frame of Government" was granted him as a royal charter by King Charles the Second, who, as the reader of this volume will recall, has been held responsible for the creation of the State of Vermont. Thus, to King Charles the Second, Vermont traces not only the prime cause of her independent statehood, but to his authority the basis of her Constitution. Through double lines he is the father of Vermont.
How generally the inhabitants of Vermont knew that they had formed a State and had established a Constitution is a question. It is doubtful if generally they understood what a constitution was. This is not mere surmise: legislature after legislature in Vermont, beginning with the year 1779, sol- emnly by statute enacted that the Constitution of Vermont should be a part of the law of Vermont ! Of course, if the Constitution was anything, it was the very foundation of the structure of State government. Without it there could be no basis for Vermont's statute law or civil and military officers.
1 Sharpless, A Quaker Experiment in Government, p. 62. 2 Id., p. 55.
391
THE CONSTITUTION
Such men as Ira Allen and Colonel Joseph Marsh knew this well enough, but among the rank and file the conception of a constitution must have been hazy indeed when on no less than four occasions the legislature passed statutes to "estab- lish" it.1
William Slade, in a note to his invaluable Vermont State Papers, at page 288, contributes the suggestion that since the Vermont Constitution of 1777 was never submitted to the people for ratification it was "considered a mere nullity by the statesmen of that period." Such a theory, however, gets us nowhere because the Constitution was accepted by those same "statesmen" as supplying their authority to pass stat- utes, and because they did not trouble themselves to obtain a referendum vote by the people in ratification of any of the several acts to "establish" the Constitution.
Governor Hiland Hall, in one of his editorial notes in the second volume of the Vermont Historical Society's Collections, at page 279, offers in explanation of the Acts of 1779 and 1782 "establishing" the Constitution, that since several towns other than those participating in the constitutional conven- tion of 1777 had been organized and were represented in the legislature, it was deemed advisable by formal legislative ac- tion to bring such new towns under the sway of the Constitu- tion. To such a suggestion one might justly reply, first, that the Constitution by its original terms applied to all the terri- tory now included within the State of Vermont, and, second, that the "new" towns, by electing and sending to Vermont's Assembly their representatives, had already proved assent to the Constitution and willingness to be governed by it.
Daniel Chipman, in his Memoir of Thomas Chittenden, ad- vances another explanation of these singular statutes. It was Mr. Chipman's theory that, according to the popular belief in those times, a legislature rather than a constitution, was supreme. "No idea was entertained," says he, "that an act of the legislature, however repugnant to the constitution, could be adjudged void or set aside by the judiciary." 2 Mr.
1 Slade's Vt. State Papers, 287, 288 and note; Gov. & Coun., vol. 2, p. 160 and note; Id., vol. 3, p. 133 and note; Id., vol. 4, p. 118 and note.
2 Chipman's Memoir of Chittenden, pp. 100-113.
392
THE BIRTHPLACE OF VERMONT
E. P. Walton accepted Mr. Chipman's view1 and so, appar- ently, did the Reverend Pliny White,2 although it is not clear that Mr. White quite understood it. As a matter of fact, Mr. Chipman's premises are not free from doubt. Says Judge Baldwin in The American Judiciary : "The idea of a supreme authority exercising the function of setting aside acts of legis- lative bodies which it deemed inconsistent with a higher law was familiar to Americans from an early period of our colo- nial history." 3 Years before the establishment of Vermont's Constitution, lawyers in an American case that attracted wide- spread attention had argued that there was the right and power on the part of the judiciary to declare a law void be- cause it violated a constitution.4 Jeremiah Mason, in cases before justices and Common Pleas judges in Cheshire County, New Hampshire, just across the Connecticut River, asserts that between 1791 and 1794 he successfully attacked the con- stitutionality of certain legislative enactments and had them declared void. The doctrine was therefore known in New England at an early date. But wholly aside from that specific point the supremacy of constitutions was realized and under- stood, as we shall presently demonstrate, by some of the very men who participated in the Windsor Convention of July, 1777, and formed the Constitution.
Under date of October 30, 1777, Ira Allen published a sec- ond pamphlet of Miscellaneous Remarks,5 in which, among other things, he discussed the effect of that provision of New York's constitution whereby Crown grants made within the Province of New York prior to October 14, 1775, were ratified and confirmed. This provision, of course, embraced within its scope grants made by Governor Tryon and his predecessors in the territory now called Vermont. Ira Allen clearly per- ceived the resultant danger. "Those grants that are thus established in and by the constitution," he wrote, "are estab- lished in earnest, as they are forever out of all dispute; for no law can make decision of, or try the title of land that was
1 Gov. & Coun., vol. 3, p. 133. 2 1 Vt. Hist. Soc. Coll., pp. 64-65.
3 S. E. Baldwin's The American Judiciary (1920 ed.), p. 98.
4 Quincy's Massachusetts Reports, p. 474.
5 Vt. Hist. Soc. Coll., vol. I, pp. 133-144.
393
THE CONSTITUTION
established in the constitution on which that law was founded ; for allowing it could, the law would condemn the constitution, from which it received existence ; which would be as contrary to law and nature as for a creature to condemn his creator." 1
Similarly, though with less force, Colonel Joseph Marsh, on behalf of himself and other members of the Vermont legisla- ture, on October 23, 1778, protesting that a measure adopted by that body was in violation of Vermont's Constitution, put the case in this language:
"Thus, Gentlemen, you see that in less than a year after the establishment of the Constitution of this State, on which all our political rights and liberties depend, flagrant and open attempts are made to violate and destroy it. . . . "' 2
Nor did Colonel Marsh fail to quote the words by which Vermont's Constitution had limited the legislature's power : "But they shall have no power to add to, alter, abolish, or infringe any part of this Constitution," 3 as set forth in the eighth section of Chapter II.4
Moreover, all men who had read Vermont's Constitution knew the language of the last section, which provided for and defined the powers of the Council of Censors. The Constitu- tion expressly placed upon the Council of Censors the duty of enquiring "whether the legislative and executive branches of government have . . . assumed to themselves or exercised other or greater powers than they are entitled to by the Con- stitution." The same section empowered the Council of Censors to recommend to the legislature the repeal of laws which appeared to the Censors "to have been enacted con- trary to the principles of the Constitution." The "suprem- acy" of the Constitution was thus recognized in the text of the Constitution itself.
1 Id., p. 141. 2 Gov. & Coun., vol. I, p. 425. 3 Id.
4 See, also, in connection with this discussion the record of the debates on the severance of the union with some of the New Hampshire towns in the autumn of 1778. (Slade's Vt. State Papers, 89-103.) The arguments indicate that many understood the nature of a constitution and yet were willing to violate their constitution under stress of circumstances. In fact, the thought of having vio- lated it may have prompted a desire to re-establish it in a spirit of contrition.
394
THE BIRTHPLACE OF VERMONT
On such a record it is impossible to agree with Mr. Chip- man, Mr. Walton, and the Reverend Mr. White that men like Ira Allen and Colonel Marsh failed to understand the supremacy of the Constitution over the acts of the Assembly. Allen and Marsh may not have realized the duty resting upon the judiciary to declare an unconstitutional act to be void; but they fully understood the nature of a constitution, and that the Constitution should prevail. The fact probably is that men like Ira Allen and Colonel Marsh, although compre- hending perfectly the nature of a constitution, were in a piti- fully small minority, lacked the time and patience to instruct and convince an unlettered majority of their colleagues, and hence, for the sake of peace and to allay the doubts and se- cure allegiance to the Constitution on the part of less-informed contemporaries, endured the grotesque practice of passing laws to "establish" the Constitution. If this be the true explana- tion of these anomalous acts, then Mr. Slade was pretty nearly right in saying that the Constitution was viewed as "a nul- lity," although we cannot follow him in his belief that "states- men" so viewed it or that the want of ratification by popular vote was the cause of its disrepute. Want of ratification was mentioned by Ira Allen in his History of Vermont,1 and the town of Bennington, as he says, tried to make a point of it2; but there is no real ground for assigning this as the reason that in the early days the great majority of the people failed to appreciate that the Constitution was the Constitution.
The reader who has been interested and patient enough to follow these passages should not overlook the events that pre- ceded each of the several legislative votes to "establish" the Constitution. The first of such votes, so far as is known (Feb- ruary 15, 1779), followed the dissolution of the union of Ver- mont with certain towns of western New Hampshire. Lieu- tenant-Governor Marsh and others had made the point-blank charge that such dissolution not only had violated but "de- stroys" the Constitution.3 The second act to "establish" the Constitution was in accordance with precedent, since it came on the heels of the dissolution of Vermont's union of 1781
1 Allen's History of Vermont, pp. 108-109.
3 1 Gov. & Coun., pp. 422, 423.
2. Id., p. 110.
395
THE CONSTITUTION
with parts of New Hampshire and New York. The third and fourth of such enactments followed the constitutional con- ventions of 1786 and 1793, respectively, which had amended the Constitution. Furthermore, the Council of Censors of 1786, in reporting its recommendations of amendment, pointed out specific instances of infraction of the Constitution during the first seven years of statehood. These circumstances indi- cate that the several legislatures, in their votes to "establish" the Constitution, were acting upon the belief that the foun- dation of their government had been broken or impaired or altered, and were desirous, so far as legislative action could serve the purposes, to make good the damage or ratify legiti- mate improvement.
It would be improper to conclude this phase of the Consti- tution's history without respectful reference to Governor Hi- land Hall's note at pages 277 to 279 of the second volume of the Vermont Historical Society's Collections, or to Mr. E. P. Walton's note at page 160 of the second volume of Governor and Council. Both of these learned commentators have treated with derision suggestions such as are set forth by the writer of this volume. With all deference, however, we are willing to let our conclusions stand and to permit the reader who may be interested in the study to judge if they be sound. "What- ever the true explanation may be, nothing more need be said to convince a reasonable mind that, as affecting the Constitu- tion, such enactments [i. e., the statutes "establishing" the Constitution] were mere nullities." 1
1 Chief Justice Watson's Address in Proceedings of Vt. Hist. Soc., 1919-1920, p. 242.
CHAPTER XLI THE FIRST DAYS OF STATEHOOD
THE reign of terror to which we have alluded in an earlier chapter made itself felt in Windsor directly after the June Convention. Among those classed by the New Staters as "enemical" persons was Andrew Norton, who seems to have been one of Windsor's substantial farmers and eventually a Loyalist. The details of the charge against him, although now unknown, were deemed sufficient by the supporters of the New State movement to justify his incarceration in the West- minster jail. He is probably one of the prisoners to whom the members of Cumberland County Committee referred in their memorial, dated at Brattleborough on June 26, and ad- dressed to the New York Convention, wherein the committee- men asserted "that several prisoners now in prison in the County, who might have been set at Liberty agreable to the Resolves of the Convention of the State of New York, are still Kept in prison in the most Pitifull Circumstances, and are so Like to Continue." 1 At all events, Colonel Eleazar Pater- son, of Hinsdale (Vernon), who bore the Cumberland County Committee's memorial, brought with it to the New York Council of Safety sundry papers reporting the condition of affairs on the New Hampshire Grants and the recent Windsor Convention of June 4, and including a certain "petition of Andrew Naughton, confined in the jail of the said county by the authority of the said convention." 2
Unfortunately, the petition of Norton-or Naughton, as he preferred to write his name-was not copied in the journal of the New York Committee of Safety, and was probably lost in the fire which in 1911 destroyed so many priceless records in the New York State Capitol. Its text, if obtainable, might throw a flood of light on the initial steps taken by the New Staters on the east side of the Green Mountains to force their will upon the dissenters. The fact that Naughton thought it proper to address his petition to the authorities of New York
1 1 Gov. & Coun., 366.
2 1 Jour. N. Y. Prov. Cong., 995.
396
397
THE FIRST DAYS OF STATEHOOD
rather than to the Green Mountain insurrectionists may of itself suggest a reason for his being put under restraint, al- though his joining the British after his release from jail would indicate that he was "enemical" to the Revolutionary cause from the beginning. It must be confessed, however, that within the next few months among those arrested as "enemi- cal" persons were Americans whose only offence, as they stoutly asserted, was their adherence to the State of New York and their unwillingness to announce their allegiance to the new State of Vermont.1
A Windsor citizen who held a lieutenant's commission under New York played in far better luck and with greater tact than Andrew Naughton. Lieutenant Elisha Hawley, of Hoisington's Rangers, recognizing that the time for deciding between New York and Vermont had arrived, concluded that the safe course was to resign his commission. In the following delightfully worded letter he laid the matter before the New York Con- vention :
To the Honorable Convention of the State of New York,
July 16, 1777.
Gent .-
I, the undernamed subscriber, was appointed by your said Honorable Convention, lieutenant in the corps of rangers now under the command of Captain Benjamin Wait, and have served in said corps since first raised; but by the death of my wife, who has left behind a small and numerous family of helpless children, together with divers other disappointments, renders me incapable of further service in my present situation ; therefore make this my voluntary resignation.
Given under my hand this 16th day of July, 1777.
Elisha Hawley, Lieut.2
The action of the New York Convention on the receipt of Lieutenant Hawley's communication is not recorded. Such an Irishism as the "small and numerous family" ought to have found favor for him, to say nothing of his lament that his de-
13 Clinton Papers, 552.
2 2 Jour. N. Y. Prov. Cong., 509.
398
THE BIRTHPLACE OF VERMONT
ceased wife had left behind her not only a family of helpless children but "other disappointments." From other sources we discover that Lieutenant Hawley was willing to do his part to better his situation by taking as a new wife Hannah, widow of Duty Sayles, twelve days after the date of the above letter. This we find by examining the Cornish Church records kept by our old friend, Parson James Wellman.1 Only an un- generous reader will infer that Lieutenant Hawley in tender- ing his resignation was actuated by motives other than those he put in writing, even though it must be admitted that a honeymoon with Hannah was less likely to be interrupted if the groom could first free himself from military duty and set- tle down once more as a civilian at his Windsor grist mill.
A sidelight on Lieutenant Hawley's decision is thrown by the following letter written by his superior officer, Captain Benjamin Wait, of Windsor, to the New York Convention, on receipt of orders to march the Rangers to Kingston in Ulster County :
Gentlemen :
Kingston, July 26, 1777.
Agreeable to my orders received from the Honorable Coun- cil of Safety, dated June 27th, I proceeded to New-Borough2 in the County of Gloucester, and when I arrived there found my officers and men marched to Ticonderoga on account of the alarm there, and as soon as they returned I called them together and ordered them on the 14th inst. to prepare for marching down immediately, which they refused, giving for their reason that, at the time of their engaging, they did not expect to be removed from the three counties of Cumberland, Charlotte and Gloucester, and that now the enemy being in possession of Ticonderoga, leaves the frontier open to them, and that they could not think of leaving their wives and chil- dren in so dangerous and helpless a situation. This, gentle- men, being the case, I would beg leave to lay the same before you for your consideration.
Your most obedient and very humble servt.
Benj. Wait, Capt.3
JN. E. Hist. & Gen. Reg., vol. 72, p. 283.
2 Newbury.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.