From scratch: Vermont's early legal history


BENNINGTON -- Early Vermonters established laws and courts on the fly, often with little expertise and information to draw on, resulting in some funny stories and some appalling ones.

Montpelier attorney Paul Gilles spoke to the Bennington Historical Society recently about the early judicial history of Vermont. Gilles is the author of "Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal History."

He noted with humor that, "I'm a guy who spends his spare time reading old cases and old law." His family might not be enthused about this interest, "but to me it's extremely interesting, and I've been working lately on a history of the courts of Vermont in order to try to understand how we evolved from a wilderness into [the] society that we have today. And I'm particularly interested with the stories that go with these events."

Gilles spoke of Bennington in 1770, featuring Ethan Allen working on a case, with the early conflict over Vermont land charters between New York and New Hampshire very much in play. Allen was not a lawyer, but he acted like one and was in court, "and he offered one of the New Hampshire charters as a piece of evidence. The judge said it was inadmissible, thereby condemning all of the titles of Vermont that were received from the New Hampshire side to oblivion whenever they were going to be in conflict with the New York charters."

Allen then retreated to a tavern, where he met the attorney general of New York. This New Yorker tried to bribe Allen. "He said that he would be happy to give him a New York grant of 1,000 acres if he would just stop resisting this New York authority. And he said something like, ‘You know, Ethan, might makes right,'" Gilles said.

Allen gave a typically memorable answer: "He said, ‘The gods of the hills are not the gods of the valleys.' And the attorney general said, what do you mean by that? And he said, ‘Well, you just come on up to the Green Mountains and we'll show you.' And there began the Green Mountain Boys and the organized resistance to New York that allowed us to become, eventually, a state."

For a time, New York courts operated in Vermont, but it was not a happy experiment. "These courts are the worst-run courts in the world -- they mostly do nothing," Gilles said, "occasionally they'd handle debt ... New Hampshire settlers have a difficult time in pursuing their justice in these courts, and there's a great furor that builds up."

Differences existed between the eastern and western part of the state, with the eastern part being more Congregational and conservative and the western part having more freethinkers, Baptists and Methodists and so a bit more liberal, he said.

As an increasingly unified Vermont moved toward independence as a republic and eventually toward statehood, "we have a growing sense of our own identity and in July of 1777 we adopt a Constitution in which we create three branches of government: The executive the legislative and the judicial, Gilles said. "We have no government from that time until March of 1778 because there was a delay in printing the constitution."

At first, the state followed English law, then the state passed a law to establish the first court, called a superior court.

"Now, the reason we do this is there's only one law around, it's the 1762 Connecticut Law Book, with the statutes, which happened to belong to Thomas Chittenden, our governor. But he had served in the Connecticut Legislature," Gilles said. "So we have this book and it's very precious, and what we do early on is we adopt the laws of Connecticut that fit with us. The book is organized in alphabetical order."

So the first law dealt with arson and the second with burglary. "So we're looking in this book and we're changing Connecticut to Vermont. We've already taken Pennsylvania's constitution and 90 percent of our first constitution is taken from Pennsylvania, except three important changes in which we are unique in the history of the world:

"One is we abolish slavery, two, we establish freehold rights for anyone to vote whether you own property or not, and thirdly we guarantee that the taking of private property for public purposes should be compensated in money," he said. "Now, these are ideas that have been around, but we're the first state -- the first nation, if you want -- to treat it that way, that has the ability to articulate and then guarantee in the constitution.

"And our constitution starts with a bill of rights. ...In the U.S. Constitution there are amendments that create the bill of rights," Gilles said. "We put it right up front, and we established some basic principles on how we're going to work."

The first court in March 1778 had five members, none of them lawyers: "We don't really like lawyers," Gilles said.

"If you're a lawyer, you keep your head low. And we have the supreme court headed by Moses Robinson of Bennington and we have very few published reports of those days, but we do have an interesting first divorce," he said.

Today divorces are granted in family court but back then there was only the superior court, named the supreme court of adjudacature in 1781.

"Among the records of the first actions of the court is an absolutely charming story about a divorce, but in this divorce the name of the husband is not mentioned. The name of the wife who has strayed into adultery is mentioned. Her name is Pheba," Gilles said. "The supreme court holds a hearing and decides that they should be divorced and says in the most interesting language -- this is where I start seeing the origins of Vermont thinking -- the decision of the court says, ‘You are no longer one but twain and what God and the law of man have put asunder, let no man put together.' Now that's the Biblical marriage ceremony flipped on its side.

"Much of what we get in early Vermont is a kind of invention, a kind of placeholder if you will in order to find that there's some sense to it and it's raw logic, it has no precedent. It has kind of a folk law quality to it."

Stolen law library

Today, a judge would look at statutes and reported cases, but Vermont did not have cases reported and printed, with few exceptions, until about 1822.

The first law library was confiscated from a Tory attorney, Charles Phelps of Marlboro. This was the best and really only law library in the state. This library becomes the foundation of what is today the Vermont State Library and there are still books that belong to Phelps in it, Gilles said.

Punishment for crimes was by today's' standards barbaric. As there were not prisons for long-term stays, the state adopted a system of corporal punishment -- "We give you your punishment immediately."

When Jonas Galusha, of Shaftsbury, who later served on the Vermont Supreme Court, was sheriff of Bennington County in the 1780s he was paid by the government of Vermont for punishing a man for counterfeiting by "cutting off his right ear and branding his forehead with the letter ‘C' and being whipped 39 times and fined," Gilles said.

"I originally thought that this was more on the books than it was actual, but apparently there were people walking around with ‘A' for adultery, ‘I' for incest," he said. "This branding of the foreheads, this cutting off of ears, was thought to be entirely appropriate."

In 1807 in Newfane, a woman named Mother White was given 39 lashes on a whipping post for counterfeiting. "It was an awful mess," with students at an academy next door watching the proceedings, he said. So in 1808, the state eliminated corporal punishment and opened a state prison in Windsor.

Public hangings were common many of them were held in Bennington. In 1839, Archibald Bates had a dispute with his sister in law and shot her. His hanging in Bennington is believed to be the last public hanging in Vermont. In 1899, the Bennington Banner interviewed Isaac Crawford, believed to be the last surviving person to have witnessed this event.

"So ... the public face of government is of a rather savage nature, of what you might suggest is an unforgiving nature," Gilles said.

An interesting group

Another way to look at the early judicial history of Vermont is to look at the people who have served on the supreme court. When a current vacancy on the Vermont Supreme Court is filled, this person will be the 133rd person to have served on it, he said.

"And what a group of people they are. Among people who have served on the court, we have one who was court-martialed during the Revolutionary War and one who was a prisoner of war," he said.

Several members of the court were at the Battle of Ticonderoga and several of them were at the Battle of Bennington. One worked to restore order as a result of the embargo of 1808, and another, Wheelock Veazey, was awarded the Congressional Medal of Honor. He as a colonel in the Civil War Battle of Gettysburg was involved with stopping Pickett's Charge.

"We had Theophilus Harrington, who was known to go barefoot on the bench and during court proceedings to pick his toes," Gilles said.

However, when an agent for a slave holder came to the court to get an escaped slave released into his custody, Harrington said, shuffling his papers, "Everything seems to be in order here except one thing. I'm missing a release from God Almighty."

Of these early justices, a majority never attended law school. "And we had some, who became famous jurists, who never attended a school at all," Gilles said.


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