COUNTY BENCH AND BAR
HIRAM A. HUSE
The Indians exercised practical jurisdiction overall the lands now
included in Washington county till 1781 or 1782, when Thomas MEAD made
the first permanent white settlement in Middlesex, a mile or more below
Montpelier. White men had, however, before that taken to themselves paper
or parchment title -- what Col. Orange FIFIELD would call "a paper front"
it describing their invasion -- to a good many acres.
The following charters had been granted by New Hampshire: Berlin,
June 7, 1763, to Chauncey GRAYHAM and others; Duxbury, June 7, 1763, to
Isaac BROWN and others; Middlesex, June 8, 1763; Moretown, June 7, 1763,
to Jonah FOSTER and others; Waterbury, June 7, 1763, to John STILES and
others; and Worcester, June 8, 1763, to Joshua Mason and others.
Grants of other towns had been given by Vermont: In 1780, Barre
(under name of Wildersburgh, changed to Barre in 1793), Cabot, Calais,
Montpelier, Northfield, Roxbury, Warren, and Woodbury (name changed to
Monroe in 1838 and back to Woodbury in 1843); and in 1782 Vermont granted
Fayston, Marshfield, and Waitsfield, and in 1788 Plainfield (called St.
Andrews Gore till 1797).
New York had also granted, under the name of Kilby, a township of
land including a part of Montpelier, Berlin, and Barre. No attention seems
to have been paid to this grant except that knowledge of it angered still
more the ALLENS and others who were resisting the New York claims.
New Hampshire began granting towns in 1749, and in 1764 had granted
138 towns in what is now Vermont territory. In 1764 an order of the King
in Council made the western bank of the Connecticut river the boundary
between New Hampshire and New York, and New York began granting not only
lands not before granted by New Hampshire, but also regranting such granted
lands on which settlements had been made. This granting by New York was
forbidden by the king in 1767, but the New York authorities construed the
order to apply only to lands already granted by New Hampshire.
The jurisdiction of New Hampshire courts may at some time have been
exercised over Vermont lands or persons, but where and when does not clearly
appear. In fact, till about 1769 or 1771, New Hampshire was not divided
into counties, and between 1749 and 1764 her courts appear to have been
held wholly at Portsmouth. So the grantees of the six Washington county
towns chartered by New Hampshire in 1763 would have had to repair to the
shores of the Atlantic to find legal adjudication in respect of their Vermont
property. The order of the king in 1764 put Vermont territory under control
of New York, although it may have left the New Hampshire charters valid,
and then all Vermont was (on paper) in Albany county, and her inhabitants
would (on paper again) have to "tend court" at Albany on the banks of the
Hudson instead of at Portsmouth. As a matter of fact they settled land
titles and administered justice nearer home with the "beech seal."
New York soon took measures for the administration of her laws in
the territory thus declared within her jurisdiction, and beginning in 1766
took measures to establish the county of Cumberland, and effected this
finally by a charter of March 17 or 19, 1768, -- the boundaries were the
west bank of the Connecticut, thence twenty-six miles to the southeast
corner of Stamford, thence north fifty-six miles to the northeast corner
of Socialborough (Clarendon), thence north fifty-three degrees east thirty
miles to the south corner of Tunbridge, thence by the south line of Tunbridge,
Strafford, and Thetford to the Connecticut. The county seat was first Chester,
By a New York ordinance of March 16, 1770, Gloucester county was
established out of that part of Albany county lying north of Cumberland
county and east of the Green Mountains, and May 29 of that year, at Kingsland
(or Kingsborough), now Washington, the first court for Gloucester county
was held. A full account of this may be found in Child's Gazetteer of Orange
County,. The next winter the Judges and sheriff going to hold this court
found themselves "far in the woods," and court "opened on the spot," and
court, "if one," was adjourned till May. Some courts were afterward held
for Gloucester county at Newbury, and Washington county was included in
Gloucester's territory, but it had no white inhabitants. Charlotte county
was established west of the Green Mountains, March 12, 1772, but its doings
do not concern the east side. In fact, the New York jurisdiction was so
hated by a large portion of the inhabitants that it had a hard time of
When Vermont came into her own, and, as one old mapmaker has it,
her inhabitants held their lands "by the triple title of honest purchase,
of industry in settling, and now lately that of conquest," she organized
the new state into two counties, on the 17th day of March, 1778, and called
them Bennington and Unity. The name of Unity was changed to that of Cumberland,
March 21, 1778. Cumberland included the territory east of the Green Mountains,
and was divided into two shires by "the ancient county line." The "shire
of Newbury" had, by act of March 24, 1778, for its Judges: Gen. Jacob BAILEY,
1st Judge; Mr. Jacob BURTON, 2d; Mr. William HEATON, 3d; Mr. Reuben FOSTER,
4th; and Capt. John FRENCH, 5th; --so these were the first Vermont Judges
over territory that is now Washington county, and the reader is referred
to the Gazetteer above named for some account of them. But as yet Washington
county had no white folks within its borders, and it was indeed more than
two years after this that the Indians, returning from the burning of Royalton,
camped with their prisoners near Dog river in Berlin. The Westminster shire
was sometimes called the Cumberland shire, and the Newbury shire sometimes
called the Gloucester shire.
February 11, 1779, Bennington county and Cumberland county had their
dividing line rearranged, Bennington county gaining some territory by the
new bounds. Some of what is now Washington county fell to Bennington county,
and some remained in Cumberland county, as the line between the counties
ran in the northerly half of the state from "fifty miles east of Lake Champlain's
center channel south to the northeast corner of Worcester and along the
easterly lines of Worcester, Middlesex, and Berlin, to the southwest corner
of Berlin and then to the northwest corner of Tunbridge." Not an easily
traceable line, but there was nobody within the present limits of Washington
county to quarrel about it.
It may be here observed that the present Washington county is not
the first Washington county that Vermont has had. When the new state was
annexing parts of New Hampshire and New York at its April session of 1781,
the Vermont legislature established a county by the name of Washington
from the towns it had annexed east of the Connecticut river: that Washington
county had for its northerly towns Claremont, Newport, (N. H.,) Unity,
and Wendal; but when the forty-five New Hampshire towns were restored,
February 21, 1782, to their own state, of course the earlier Washington
county ceased to exist, but its even temporary establishment was a very
timely compliment to Gen. Washington.
At the February session, 1781, Bennington county was divided into
two counties- Bennington substantially as now existing, and Rutland embracing
the territory to the north that was formerly in Bennington county; and
Cumberland county was divided into three counties -- Windham and Windsor
substantially as now existing, and Orange comprising all territory to the
north of Windsor and east of Rutland counties to the Canada line. Thetford
and Newbury were constituted "half shires " for the county of Orange, and
that county, by the way, till 1787, had for one of its towns Kingston,
now Granville. October 18, 1785, the county of Addison was established,
and the western part of Washington county was included therein. This lasted
till the act of October 22, 1787, establishing Chittenden county, went
into effect, after which the western towns of Washington county were part
in Addison and part in Chittenden county. November 5, 1792, the counties
of Franklin, Caledonia, Orleans, and Essex were established, but all the
original territory belonging to Orange county was to "continue to be annexed"
to Orange county till October 1, 1796. After Caledonia county was in running
order its courts were held at Danville till after the organization of Washington
county under the name of Jefferson, in 1811. So from the organization of
Chittenden county to December c, 1796, (when Caledonia county became a
working entity,) Washington county towns were divided between three counties,
and from December 1, 1796, to December 1, 1811, our present territory was
in four counties; the towns of Barre, Berlin, Northfield, and Roxbury being
in Orange county-Cabot, Calais, Marshfield, Montpelier, Plainfield (till
1797 called St. Andrews), and Woodbury being in Caledonia county Duxbuiy,
Fayston, Middlesex, Moretown, Waitsfield, Waterbury, and Woodbury being
in Chittenden county, and Warren in Addison county.
November 1, 1810, -- a couple of years after Montpelier had become
the capital of the state, -- Jefferson county was incorporated after ineffectual
attempts to amend the bill and to refer it to the next session, which last
proposal was defeated by a vote of 90 yeas to 101 nays. John PECK, Gershom
PALMER, and Nicholas BAYLIES were appointed a committee to designate the
place of building a jail and court-house, and to procure subscriptions
and build. The new county was set going by acts of the session of 1811.
One, passed October 16, of that year, fixed the place of holding courts
at Montpelier; the term of the Supreme Court to be held on the 5th Tuesday
after the 4th Tuesday of August, and the terms of the County Court to be
on the first Mondays of December and June. By an act of October 30, 1811,
Ezra BUTLER, justice of the peace, was authorized to issue a venire, directed
to the sheriff of Chittenden county, to summon fifteen jurymen, being freeholders,
from Waterbury, Moretown, Duxbury, Stowe, and Middlesex, to serve as petit
jurors for the first term of court beginning the first Monday of December,
The territory embraced in the county of Jefferson was nearly that
of the present county of Washington. The territorial changes since made
are as follows: Stowe remained in this county till 1836, when it was set
to the new county of Lamoille; Elmore was annexed to this county in 1821,
and remained a part of it till 1836, when Lamoille county was established;
Roxbury was annexed (from Orange county) in 1820; Warren (from Addison
county) in 1829; and Woodbury (in 1835) and Cabot (in 1855) from Caledonia
county. Montpelier's division into Montpelier and East Montpelier, in 1849,
gave the county another town without increase of territory. Goshen Gore
by Plainfield (annexed to Plainfield in 1874) and Harris Gore were annexed
(from Caledonia county) August 1, 1863.
November 8, 1814, an act was passed changing the name of Jefferson
county to Washington county, and on the 1st day of December following this
act took effect.
A lawyer's successes are written on the shifting sands of tradition.
The place where they are won soon knows them no more; and is often itself
speedily forgotten. But as long as the tradition lasts the setting of the
legal drama has an interest.
The dramatic possibilities of a trial receive full recognition by
playwrights and actors in their frequent attempts to reach what seems curiously
unattainable-a realistic court scene. How they succeed in getting up so
many variations of failure is a mystery-but they do it all the same, and
all the time. I have seen, when Edwin Booth was on the stage, one of the
"attendants with torches" actively open the scene by setting Othello's
plume on fire, and have heard, when Joseph JEFFERSON was "Rip" in the Catskill
Mountains, the stage thunder get out of repair to that degree that better
could have been made on an average sap pan-but never anything so unreal
with stranger, new forms, "both horrible and awful," of unreality as a
The school-house in the shadow of Camel's Hump, where George F.
EDMUNDS and Matt CARPENTER had their night contest, when they were students,
before a justice jury, was a sample "temple of justice," in the like of
which many of the best lawyers say they got their best training. These
justice jury trials are pretty much gone by and the habit of having them
was better for the training of lawyers than for the business progress of
the communities; but all is not lost, for the justice courts -- and the
Supreme Court for that matter -- are still "on wheels," and shed more or
less benignant judgments here and there as the convenience of the plaintiff's
lawyer and the supposed convenience of the parties and witnesses dictate.
There are compensations in other directions, too, in the changes
that time has made. When Judge POLAND, who was in the legislature ten years
ago, had had procured the passage of a law providing for the appointment
of "masters to find and report the facts" in chancery cases, Judge PECK
gave him a Scotch blessing for having "destroyed the Court of Chancery
-- the growth of and the product of the wisdom of hundreds of years." Judge
POLAND's law seems to work well, however, as his new pauper law may if
the Supreme Court's period of incubation over its interpretation is ever
determined, and besides we have efforts toward an assumption of chancery
powers in unexpected quarters, the late equitable judgment .of a Washington
county justice of the peace for the plaintiff to "recover eighty-five-dollars
and a gigg " having been within a few days equaled if not excelled by a
Rutland County Court jury, which in a flowage case added to their verdict
for damages an order that the defendant should remove from his dam "within
ten days" the boards causing the flowage.
But this hardly describes our Montpelier court-houses; and indeed,
were it not for one of our profession whose memory goes back to its days,
I could hardly describe the first one at all. The committee at first appointed
to build a court-house do not seem to have made progress, for November
9, 1812, the use of the hall of the State House was granted for the holding
of courts for the year ensuing. And upon such grants, or without them,
the courts for this county were held, till the latter part of 1818, in
the old State House which, first occupied in 1808, was upon the completion
of the second State House, about 1837, moved away and its timbers were
bought by A. A. SWEET, and many of them used by him in the construction
of the house sometime known as the E. M. BROWN house, now the property
of the estate of Capt. A. A. MEAD.
November 6, 1817, Chapin KEITH, George WORTHINGTON, and John PECK
were appointed a committee to build a court-house, and on the 18th of that
month they contracted with Salvin COLLINS and David HERRINGTON for its
erection. The contractors were to build and did build "near the northwest
corner of the State House common." That common at that time did not extend
as far west as now, so that the old court-house was nearly in front of
the present State House. At that time the turnpike to Burlington ran along
petty near where the State House now is, and State street, at least below
the Pavilion, did not exist. The court-house was thirty-four feet wide
and forty-eight feet long, and there were by the contract to be "three
door steps twelve feet long and hewed of the Barre ledge stones." Our Barre
neighbors -- they of the booming town of Vermont -- can see that even then
their product was prized, but think of calling the now famous Barre granite
just the Barre ledge stones!"
The court-room was 33 by 34 feet, "arched above," and "21 feet between
joints." There were four "jury-rooms" in the front of the building, two
on the first and two on the second floor; back of these was the court-room
reaching to the roof. There were in the court-room "nine windows of forty
lights each," and in other parts of the house "seventeen windows of twentyfour
lights each" -- all the lights to be of "good 8 by 10 glass." The building
was to be completed September 1, 1818, and was occupied the fall of that
year, though the contractors and the committee had a falling out about
the amount due, as it was claimed and so decided that in some points they
had failed to build according to the contract, though in others they had
builded better than required by its terms.
This court-house remained where erected till about 1837, when it
was moved to where it now stands. It continued to be used as a court-house
till the fall of 1843, after which it was for a time used by the Catholics
as a church, and of late years has been tile residence of the priest in
charge of St. Augustine's church.
The first trial for a capital crime ever had in this county was
in the days of this old wooden court-house, but was not held in it, but
in the hall of the old State House. This trial began April 21, 1836, and
was that of Michael MORICEY (or MORRISEY) for the murder of John CORRIGAN,
at Montpelier, April 2, 1836. The crime was committed at MORICEY's house
near the lower end of Barre street, and was by hitting CORRIGAN with a
club so that he died in a few hours from the effects of the blow. The trial
was concluded the day after it began, and the accused was found guilty
of manslaughter and sentenced to ten years imprisonment. Paul DILLINGHAM
was state's attorney, and MILLER and UPHAM were counsel for the respondent.
In 1843 a new brick court-house was erected, at a cost of about
$3,500, on Elm street and partly on the site of the present court-house.
At the first term of court held in the new building it caught fire and
was burned about 3 o'clock in the morning of Tuesday, November 28, 1843.
The files in pending cases were burned and one volume of old records. Court
was continued in Masonic hall, and nobody seemed to regret the loss of
the house, as it was very unsatisfactory in both location and construction.
The property on the corner of State and Elm streets was procured
by subscription, and when a new court-house was erected it was made to
front State street, and proved a very satisfactory building. The Judge's
desk was in the west part of the court-room and had a very resonant top
which Judge PECK now and then used to strike with vigor. That desk top
was, as Judge PECK used to say some old lawyer told him the statement of
a legal proposition ought to be, "as hard and dry as a pine knot." It was
this he struck when he commanded Col. RANDALL to "stop!" -- and the same
that resounded to his blow when he roared out at the witness Rockwell,
"answer his questions or I'll commit you to jail," and ROCKWELL shrunk
down in his chair saying, " Lord, have mercy!" The jury box was in the
northwest corner, the jury facing the south and so unable to see the "Goddess
on the State House" that caught the eye of the excited advocate who was
painting the heartlessness of the persecutor of his client; waving his
hand toward the window from which he but not the jury could see the statue,
the climax came, "heartless as the brozen image that now stands before
In 1878 an addition to this court-house was authorized, and in 1879
it was built and the old part of the house remodeled at a cost of $10,000.
The court-room then obtained was never surpassed in acoustic properties.
May 25, 1880, the court-house was burned, but the walls left standing.
The same year it was rebuilt in its present shape, the building now being
twenty-two feet longer than before the addition made in 1879.
The Supreme Court has, beginning with May, 1887, held its term for
Washington county and its General Term in the court-room of the library
annex to the State House, which was built in 1885-86.
There is now building just west of the county court-house a large
and elegant postoffice and court-house for the united States government-a
structure that will be largely a monument to the untiring industry of Senator
MORRILL, and to the great esteem in which he is held by his fellow legislators
in the national capital.
From the organization of the county till the third Tuesday of October,
1825, the Supreme Court consisted of one chief Judge and two assistant
Judges, chosen by the legislature each year. This court had only appellate
jurisdiction in civil cases (except where the state was a party); in criminal
cases it had both appellate and original jurisdiction, the latter in the
graver crimes, such as treason, murder, arson, rape, burglary, robbery,
perjury, adultery, forgery, horse stealing, counterfeiting, &c., &c.
The Judges of this court did not, till 1825, preside in County Court.
The county courts, up to October, 1825, consisted of one chief Judge
and two assistants, chosen yearly by the legislature-from 1825 the present
law, by which a Judge of the Supreme Court presides in County Court, has
been in force, except during the Circuit Court experiment, which lasted
from 1850 to 1857. The Circuit Court was helped out of existence, or into
it, I have been told, by Stephen HERRICK, of Middlesex, who had a lawsuit
about a railroad contract and was persistent in litigation as in all other
things. The County Court, as it existed at the organization of the county,
had cognizance of such criminal and civil matters as was not given to the
Supreme Court or Justices of the peace. The jurisdiction of justices of
the peace was limited in criminal cases to those where the fine did not
exceed seven dollars, and where the corporal punishment did not exceed
ten stripes, and in civil cases (except for slander, replevin, trespass
on the freehold, and some others) where the matter was less than thirty-three
dollars, and in some cases (on note, settled account, etc.) up to fifty-three
dollars. The pillory and whipping were; it is true, not used as late as
1811, but they were on the statute book, if not as usable punishments,
yet as jurisdictional lines. They went out of use by the act of November
9, 1808, which enacted that whenever a conviction should be had for a crime
in which part of the punishment was pillory or whipping, the courts "may
in their discretion dispense with the pillory and whipping, and in case
of crimes hereafter committed against the statute last aforesaid, said
court shall omit the pillory and whipping." The county courts were entirely
distinct from the supreme courts.
When the county was organized John MARSHALL was chief justice of
the United States Supreme Court. Joseph STORY was a member of that court,
and Elijah PAINE was United States district Judge for the district of Vermont.
Royal TYLER, who had written a novel and a drama, was chief Judge of the
Vermont Supreme Court, and his assistants were Theophilus HARRINGTON (who
would not hold one man could own another without the "production of a bill
of sale from Almighty Go "), and David FAY, who was the youngest son of
Stephen FAY, and a brother of Jonas and Joseph FAY, and who himself, when
fifteen years old, served as a fifer in Capt. ROBINSON's company at the
battle of Bennington. Nathaniel CHIPMAN, Asa ALDIS, Richard SKINNER, Dudley
CHASE, C. P. VAN NESS, and Richard SKINNER again followed in pretty quick
succession as chief Judges before the court was increased to four Judges
in 1825, and to five Judges in 1828. Within twenty years alter the organization
of this county three members of its bar had been upon the Supreme Court
bench -- James FISK, of Barre, and Samuel PRENTISS and Nicholas BAYLIES,
Monday, December 2, 1811, the first term of County Court for Washington
county was convened. Ezra BUTLER, of Waterbury, afterwards governor, was
chief Judge, and his assistants were Salvin COLLINS and Bradford KINNE.
Clark STEVENS, the good Quaker of Montpelier, had been elected Judge by
the legislature of 1811, but he did not wish to be a Judge, and Mr. COLLINS
was elected upon his declining to accept the office. With Judge BUTLER,
however, it was not a case of "nolo episcopari," for he was a Baptist clergyman,
and was willing to overlook and Judge things both temporal and eternal.
The jurors summoned were Richard KNEELAND, Chester MARSHALL, and
Joseph DARLING, of Waterbury; John L. KENEDY, Adonijah ATHERTON, and Jason
CROSSETT, of Duxbury; Nathan BENTON, Jr., Ebenezer MAYO, and Eliakim HAWKES,
of Moretown; Samuel MANN; Samuel MONTAGUE, and Lovel WARREN, of Middlesex;
and Joseph CHURCHILL, Simeon BURKE, and Reuben WELLS, of Stowe. The first
jury trial was on the second day of the term, and was in the case of Jonathan
F. GIBSON vs. Charles HUNTOON, and the jury was composed of the above named
jurors, with the exception of KENEDY, who was absent, and BURKE and WELLS,
who were excused. Timothy MERRILL was for the plaintiff, and PRENTISS &
VAIL for the defendant. The jury did not agree and the "papers were taken
back," and the case continued.
The number of cases on the "old docket " was 138, and the new entries
were 140. The old docket was made up of cases sent from Orange, Caledonia,
and Chittenden counties. There were eight cases on the old docket and five
cases of the new entries tried by jury. There were agreements in all the
other cases tried by jury; these were on the old docket: No. 8, PRENTISS
& VAIL and Dudley CHASE for plaintiff, and MERRILL and Cyrus WARE for
defendant, verdict for plaintiff $41.37 and costs ($40); No. 20, Denison
SMITH for plaintiff, and Dudley CHASE for defendant, verdict for defendant
to recover his costs ($35.39); No. 65. Nicholas BAYLIES for plaintiff,
and BULKELEY & LOOMIS for defendant, verdict for plaintiff for $198.17
and costs ($41.96); No. 70, PRENTISS & VAIL for plaintiff, and Dudley
CHASE for defendent, verdict for plaintiff for $139.00 and costs ($42.62);
No. 74, PRENTISS & VAIL for plaintiff, and BULKELEY & LOOMIS for
defendant, verdict for plaintiff for $76.58 and costs ($30.87); No. 87,
Dan CARPENTER for plaintiff, and BULKELEY & LOOMIS for defendant, verdict
for plaintiff for $12.50 and costs ($10.33); NO. 57, BULKELEY & LOOMIS
for plaintiff, and PRENTISS & VAIL for defendant, verdict for plaintiff
for $2,573.42 and costs ($30,42). The new entry cases tried by jury were
No. 17, PRENTISS & VAIL for plaintiff, and Cyrus WARE for defendant,
verdict for defendant to recover his costs ($15.90); No. 28, Cyrus WARE
for plaintiff, and PRENTISS & VAIL for defendant, verdict for plaintiff
for $10.63 and costs ($29.90); No. 71, BULKELEY & LOOMIS for plaintiff,
and PRENTISS & VAIL for defendant, verdict for plaintiff for $56.00
damages and defendant appealed; No. 80, BULKELEY & LOOMIS for plaintiff,
and Cyrus WARE for defendant, verdict for plaintiff for $40.00 damages
and defendant appealed ; and No. 86, BULKELEY & LOOMIS for plaintiff,
and PRENTISS & VAIL for defendant, verdict for $47.37 and costs ($20.60).
Of the 138 cases on the old docket there appear, by the docket on
the plaintiffs' side, to have been entered forty-nine by Dan CARPENTER,
of Waterbury; one by Dan CARPENTER and G. ROBINSON; (I find the name of
no such lawyer as G. ROBINSON in any county in 1811 -- perhaps he was "empowered"
by the plaintiff under the 23d section of the judiciary act of 1797, and
had "filed his power with the clerk," in which case he could appear for
a party, doubtless "without the bar," as will be seen in Judge KINNE's
case hereafter.) twenty 'by Denison SMITH, of Barre; three by Denison SMITH
and BULKELEY & LOOMIS; twenty-six by BULKELEY & LOOMIS; eleven
by PRENTISS & VAIL; five by T. MERRILL; one by S. PRENTISS, Jr.; three
by Nicholas BAYLIES; three by Cyrus WARE; and other scattering names from
other counties including Dudley CHASE, of Randolph, Horace EVERETT, of
Windsor, Roger G. BULKELEY, of Williamstown, Moses CHASE, of Bradford,
KEYES, FOOT, and ADAMS, of Burlington, and some others. The principal
entries for defendants were BULKELEY & LOOMIS in twenty-eight cases,
PRENTISS & VAIL in twenty-one cases, Dan CARPENTER in seven cases,
T. MERRILL in eight cases, Denison SMITH in five cases, C. ADAMS in four
cases, Dudley CHASE in four cases, and C. P. VAN NESS in two cases.
Of the 140 cases on the new docket -- or the "new entries" -- Dan
CARPENTER entered twenty-one, BULKELEY & LOOMIS fifty-one, PRENTISS
& VAIL fifteen, Denison SMITH sixteen, MERRILL nine, N. BAYLIES thirteen,
Cyrus WARE two, and other scattering entries. PRENTISS & VAIL appeared
for the defense in forty-seven cases, MERRILL in sixteen cases, BULKELEY
& LOOMIS in ten cases, Cyrus WARE in nine cases, Denison SMITH in five
cases, and Dan CARPENTER in one case, with other scattering entries of
The jury this term were paid $160.58, and talesmen received $4.50.
Judge BATTER received for his labors for the term $104.90, Judge COLLINS
and Judge KINNE $83.93 each. The state received cash for entries $65.25,
cash for jury fees $90.00, cash for reviews and appeals $33.50, and cash
for licenses $72.50. The June term, 1812, was not as costly, the jury receiving
then $ 105.90, Judge BUTLER $101.93, and Judges COLLINS and KINNE $81.54
each. The first term had about two weeks' work in it, the court sitting
on the 2d, 3d, and 4th of December, then adjourning to the 16th and sitting
till the 28th. Imprisonment for debt continued till 1839, and. at the first
term the entry of "defendant committed" is found on the docket in seven
The first year's licenses "to keep a tavern " were to Ziba HALL,
Lovel KELTON, Thomas DAVIS, Obadiah EATON, Sally HUTCHINS, Jonathan SNOW,
and Michael HAMMETT, at Montpelier; to William F. MEEDS, John FARRAR, and
Ludowick LUCE, at Moretown; to Samuel JONES and Mehitabel WOODBURY, at
Berlin; to Joshua HILL, Libbeus SHERMAN, and Stiles SHERMAN, at Waterbury;
Silas WILLIAMS, at Plainfield ; and Gideon WHEELOCK, at his house in Calais.
Licenses "to sell foreign and distilled spirits" were granted to various
parties in Montpelier and Barre, also to sell wines and to "retail foreign
and distilled spirits and wines." The licensing of peddlers does not appear
at this early day, however, nor do the county clerk's records of that time
show as now, under the beneficent provisions of No. 104 of the laws of
1888, the pedigrees of stallions. Truly the law is a growth.
The field of operations of the earlier lawyers is worth a moment's
attention. The towns that went to make up the county had, in 1800, a population
of 5,651, and in 1810 of 10,524. Barre increased in those ten years from
919 to 1,669; Berlin, 685 to 1,067; Calais, 443 to 841; Duxbury, 153 to
326; Fayston, 18 to 149; Marshfield, 172 to 513; Middlesex, 262 to 401;
Montpelier, 890 to 1,877; Moretown, 191 to ,405; Northfield, 204 to 426;
Plainfield, 256 to 543; Stowe, 316 to 650; Waitsfield, 473 to 647; Waterbury,
644 to 966; and Worcester, 25 to 41. Cabot, then in Caledonia county, increased
in the same time from 349 to 886; Woodbury, also in Caledonia county, from
23 to 258; Roxbury, then in Orange county, from 113 to 361; and Warren,
then in Addisen county, from 58 to 229. The comparative wealth of the counties
is shown by their grand lists for 1811, when the grand list of Washington,
then Jefferson, county was about one fourth that of Windsor county, one-third
that of Windham county, two-fifths that of Orange county and of Addison
county; and one-half that of Bennington county and of Chittenden county.
Law-breakers were "loungin' round and sufferin' " in those days
after pretty much the same fashion as now. In the first two or three years
we find respondents answering to charges of theft, blasphemy, perjury,
not procuring standard weights and measures, passing counterfeit money,
breaking jail, riot, and "keeping a nuisance."
A great source of income to lawyers in those days was from collection
suits that came from the general custom of the people of buying on credit
and paying when sued. Sheriff KEITH used to go out with his saddle-bag
full of writs about every year -- justice writs that were principally in
mere collection suits. And the County Court docket was also amazingly full,
containing, as we have seen at the first term, 138 old cased and 140 new
ones. June term, 1812, it had 138 old cases and 169 new entries; December
term, 1813, 108 old cases and 190 new entries. But as the "War of 1812"
went on, law and possibly the lawyers became somewhat silent amid arms.
June term, 1814, there were eighty old cases and 103 new entries; December
term, 1814, showed fifty-four cases on the old docket and ninety five new
entries; and June term, 1815, there were but fifty-three old cases, while
124 new ones appeared, business starting up after the war was over. And
soon after it started up with a vengeance, for the March term, 1817, showed
131 old cases and 274 new entries. It is very likely that the hard times
following the war were intensified by the fearful weather of the summer
of 1816. That summer was so severe that it drove the inhabitants out of
Worcester, but one or two families remaining, and for two or three years
broke up the work of settlement there. The writing in an old almanac before
me shows the reasons why the farmers "got left" in 1816. The minutes were
evidently made by David M. CAMP, who afterwards became lieutenant-governor.
They are: "May 14, snow; May 29, snow; May 30, very cold; May 31, hard
frost; June 5, warm, sultry, thunder, etc.; June 6, snow and hail in the
morning, continued snowing all day; June 7, frost, snow all day, water
froze an inch thick; June 8, snow all day; June 9, more moderate; June
10, cold in the morning, ground considerably frozen; very dry season; August
22, frost seen in some places; August 24, frost somewhat harder." Mr. CAMP's
old almanacs also show that in September, 1815, a "frost killed everything,"
and that in 1817 there was "snow, 16 June; hard frost, 17 June." It must
have been rather a cold June term, that of 1816. Up to I817 county courts
began the first Mondays of June and December; in 1817 the time was changed
to the second Mondays of March and September, and there have since been
various changes, till now the second Tuesdays of March and September are
for a long time settled upon. Many years the terms began in April and November.
When the county was organized the old Vermont Register and Almanac
for 1812 gives eight practicing attorneys and four clergymen as the number
in its borders. Two attorneys and two clergymen were omitted in that enumeration,
however. There were then ten lawyers in Washington county and 179 in the
state; there were six clergymen in this county and 131 in the state. Of
the 131 clergymen two were Presbyterians, two Episcopalians, forty-three
were Baptists, and eighty-four were Congregationalists, and one of the
latter was the Rev. Publius V. BOOGE. The six Washington county clergymen
were Judge BUTLER, of Waterbury, and Rev. Mr. PERRY, of Barre, Baptists;
and Aaron PALMER, of Barre, James HOBART, of Berlin, Chester WRIGHT, of
Montpelier, and Amariah CHANDLER, of Waitsfield, Congregationalists. James
FISK, of Barre, then in Congress, had preached universal salvation, but
had got into politics and out of the practice of law if not of gospel.
Spotted fever, typhus fever, and politics were contagious and flagrant
in the early history of the county. The first named disease was very fatal
in other parts of .the county in the winter of 1810-11, but found but three
victims in Montpelier, the physicians of the town being very successful
in treating their many patients. The second was very fatal at the county
seat, seventy-eight persons dying in Montpelier in 1813, one of them being
the wife of Capt. Jeduthun LOOMIS, a leading lawyer. The funeral sermon
preached on the occasion of her death, by Rev. Chester WRIGHT, is extant,
as well as one on the death of Sibyl BROWN, a little girl who suddenly
died of the spotted fever. While Mr. WRIGHT was "improving" these occasions
to call the minds of the people from things temporal to things eternal,
the minds aforesaid pretty largely "stuck in the bark" of the war. And
Mr. WRIGHT got himself prayed for by Elder Ziba WOODWORTH, who had served
in the Revolution, and who was called on to pray at a war meeting which
Mr. WRIGHT had not seen his way clear to pray at when invited. "Uncle Ziba"
prayed temporal damnation on the heads of opponents of the war as heartily
as the other good parson preached eternal woe to the unregenerate. Curiously
enough Mr. WRIGHT's grandson has for years been pastor of the Unitarian
church in Montpelier, a good man, liberal as his good grandfather was orthodox,
while just now his grandfather's old church has called to its still orthodox
pulpit an eloquent clergyman who was a few years ago a Unitarian preacher.
The uncertainties of the law are still subject-matter of discourse, however.
In February; 1812, there was a meeting, described in Thompson's
History of Montpelier, of interest to lawyers. It was a mass meeting to
consider the policy of the government then aiming at war. The Democrats
first obtained control and chose Ezra BUTTER, the preacher and the Judge,
to preside; the Federalists came in soon in strength and reorganized and
put Charles BULKELEY, a lawyer, in the chair. The Democrats rallied and
finally controlled the meeting, their cause being championed by James FISK,
and the Federalist side by Nicholas BAYLIES, both afterwards Judges of
the Supreme Court. Jeduthun LOOMIS, another lawyer, was captain of the
Montpelier Light Infantry, and although a Federalist was earnest that the
company should do good service when war was once declared. J. Y. VAIL,
another lawyer, was an earnest Democrat. Two students in his office appear
on the muster roll of the company that went from the village at the time
of the battle of Plattsburgh, Alanson ALLEN and Henry F. JANES. On the
roll of the same company is the name of George RICH, the first clerk of
the court, and of Cyrus WARE, then a lawyer of mature years, and of Thomas
REED, Jr., who was then a boy who had net even begun the study of law.
Joseph HOWES, soon after a Judge of the County Court, was second lieutenant;
RICH was a sergeant; ALLEN, the law student, was a corporal; JANES, the
other law student who was afterwards a member of Congress, was among the
privates, as were Judge WARE and young REED. Thomas BROOKS, grandfather
of Gen. W. H. H. BROOKS, of the war of the Rebellion, was also a private
in this company. The old muster roll throws an illuminating side-light
on the men of that day, and it rather suits the mind's eye to see Judge
WARE and young REED plodding together toward the lake and the sound of
battle. Another coming Montpelier lawyer was on the same journey in the
Randolph company -- J. P. MILLER, who also served in the Greek revolution.
Lest Mr. CAMP's old diary of the cold June of 1816 should discourage
immigration, and cause a dearth of laborers in the granite harvest time,
it is well to note that he lived "clean up in the north part of the state,
e'enamost to the Canada line." It was wasn’t in this neighborhood at all
-- but even if it had been, what then? “Why, there 't is!" as Charles DAVIS
used to say to the Supreme Court. Every time and clime has its own worries
and its compensations. If we have haven't iron mines or marble we have
granite quarries, and if, for one year, the "perfect day in June" was not
found in its perfection in Vermont, it has since taken up its regular abode
here and is only surpassed by one of our October days with its mountain
forests dyed from the paint pot of the Gods. Horace Greeley's "go west,
young man" has been acted on long before he said it, too -- by many of
our county people and in high degree by our lawyers. There they flourish
and after a time return in glory, and the consolation of those that remain
is that those who go are good fellows and deserve their success, together
with a sense of safety from cyclones and fire blizzards. The Vermonter
disgusted with the West forty years ago may have been a Washington county
Western waste of bottom land!
as a pancake, rich as grease,
gnats are full as big 's your hand
'skeeters' are as big as geese!
rather live on Camel's Hump
be a Yankee Doodle beggar,
never see a tree or stump
shake to death with `fever 'n' agur.' "
But pretty quick after those lugubrious lines appeared Matt CARPENTER
struck out from the very shadow of the Hump and got along rather well out
West-though he had to get rid of some of the impediments of his name to
make the race.
None of the lawyers who occupied the bench will be described under
this head, but only some, laymen who from their good sense were chosen
to administer the law. The system appears to have worked well, and indeed
being a county Judge appears to have become quite a profession by itself.
Now and then a lawyer was elected, but ordinarily in this county the lawyers
kept within the bar.
Ezra BUTLER, of Waterbury, was the first chief Judge of the County
Court. He was born in Lancaster, Mass., September 24, 1763. At six years
of age his father moved to West Windsor, Vt., where Mrs. BUTLER, whose
maiden name was MCALLISTER, soon died. Ezra remained in West Windsor till
he was fourteen, most of the time living with an older brother, Joel. Then
he went to Claremont, N. H., where he lived with Dr. STEARNS for seven
years and had the management of the Doctor's farm. He served six months
in the army when he was seventeen. In 1784 he went to Weathersfield for
a few months, and in the spring of 1785, with his next older brother, Asaph,
came to Waterbury. They came as far as Judge PAINE's in Williamstown with
an ox-team, and the rest of the way (some over twenty miles) they traveled
on snow-shoes drawing their effects on a hand sled. They went to the house
of the only settler who had preceded them, James MARSH. No other settler
came to that town for a year and a half after BUTLER's arrival. The BUTLERs
"made their pitch," cleared a little land, planted some corn, and returned
to Weathersfield, where, in June, Ezra married Tryphena DIGGINS. They soon
went to Waterbury, where Ezra changed his pitch and built a log house on,
what has lately been known as the Reform School farm, just below the village,
and into this residence the young couple moved in September, 1786. The
pair "moved" from Weathersfield on horseback. Ezra was the first town clerk
(1790); was town representative, 1794 to 1805 (except in 1798); was a member
of the council from 1807 to 1825, inclusive, except when in Congress in
1813, 1814. He was elected to Congress in 1812 and served one term. He
was a member of the Council of Censors in 1806, and of the Constitutional
Convention of 1822. In 1826 and 1827 he was elected governor of the state,
and in 1828 declined a reelection.
He was no novice at the Judge business when this county was organized.
He had been assistant Judge of Chittenden County Court by three elections,
in 1803, 1804, and 1805; and had been chief Judge of that court from 1806
till his town was set off to the new county. He was chief Judge of this
county from its organization till the old system of county courts went
out of existence in 1825, except from December 1, 1813, to December 1,
1815, the Federalists controlling the legislatures of 1813 and 1814, and
Judge BUTLER being also at that time a member of Congress.
He was, when he went to Waterbury, a vigorous and somewhat profane
early settler; in a few years he was converted and became a member of the
Baptist church, and from about 1800 to within a few years of his death
was the pastor of that church in Waterbury. His early hardships gave him
a somewhat stooping form, his complexion was dark and sallow, and his eyes
black. His character and mind deserved the honors given him, and he gave
good service in all the positions to which he was called.
A more extended sketch of Gov. Butler may be found in Hemenway's
Vermont Historical Gazetteer, Vol. 4, p. 816. Poore's Congressional Directory
says he was "born in Conn.," (he wasn't); "in 1762," (he wasn't); "received
a good English education," (he went to school only six months-self-educated
in manhood he clearly was); "studied law," (he didn't, except as he helped
make it and administer it); "was admitted to the bar," (he never was);
"and commenced practice in Waterbury, Vermont, in 1786," (he never commenced
practice and there was but one other family in Waterbury in 1786); "he
died July 19, 1838," (he did die, but before that day). This historical
item from Poore strikes me as a mighty poor historical item. Gov. BUTLER
died at Waterbury, July 12, 1838.
Clark STEVENS, of Montpelier, who was the first assistant Judge
of this county ever elected, declined to serve, and indeed declined all
other offices except that he was persuaded to be town clerk one year. He
was born in Rochester, Mass., November 15, 1764, and after coming to Montpelier
in 1790 married Huldah FOSTER, of Rochester, December 13, 1792, and brought
her to his log house here. Soon after that he built a log meeting-house,
and that was the first church edifice in the county. He was a Quaker and
a minister of the gospel. He was full six feet tall, and of noble form
and like character. Thompson says of him, "he was a prince in appearance,
but a child in humility." He died December 20, 1853.
Salvin COLLINS, the first assistant Judge of the County Court, was
born in Southboro, Mass., March 6, 1768, and about 1791 came to Berlin,
where he lived till he removed to Montpelier in 1811. He was reelected
assistant Judge in 1812, and was Judge of probate from 1815, five years.
After that he was for many years a trial justice of the peace. His first
wife (Rebecca) died in 1816, and March 6, 1817, he married Mrs. Lucy CLARK.
In Thompson's History of Montpelier (p. 225) is an appreciative sketch
of Judge COLLINS. he died November 9, 1831.
Bradford KINNE, of Plainfield, was second assistant Judge of the
county for its first two years. He was born in Preston, Conn., about 1764,
and moved to Plainfield from Royalton, Vt., in 1795. Judge KINNE went about
at times to preach -- Judge COLLINS being the only Judge of the first County
Court who didn't have that habit upon him, and he was a zealous member
of the Congregational church. Judge KINNE also practiced law, but not having
been "admitted to the bar" he had to address the court and the jury from
without the bar.
Goshen Gore by Plainfield in his day belonged to Caledonia county,
and was separated from the rest of the county by ten miles of impassable
forest, being a gore no constable had jurisdiction, and a sheriff, to get
there, had to make a long detour. One CARNES, who lived in the Gore, was
poor and fell into trouble, and a sheriff finally went to get him on some
suit, whereupon CARNES knocked him about with an axe helve. Indeed CARNES
confessed when sued for the assault that he "did hit the gentleman a wee
bit of a tap on the sconce with the hoosel of his axe, but had no thought
of hurting him at all." In fact CARNES's plea was about the same as some
of the irreverent of our present bar allege a living lawyer to have made
-- that his client "struck the plaintiff in good faith." Judge KINNE defended
CARNES, and in some way got the whole CARNES family over to Danville --
the wife and six children like the husband clean and poor. KINNE stood
without the bar and besought the jury to give a verdict for the defendant
-- "Now, gentlemen of the jury, every cent you take from the defendant
will be a morsel out of the mouths of babes and sucklings" -- and KINNE
wept aloud -- and CARNES wept aloud -- and his wife wept aloud -- and the
six "babes and sucklings" lifted up their voices and wept -- and the jury
was moved by the waters upon their faces, and CARNES and his family returned
to the Gore unharmed -- all having gone according to KINNE's programme;
pretty much as the justice of a later day, who "was a kind of a plaintiffs
justice," once remarked to a famous lawyer with whom he rode to the place
of trial over in Duxbury, "I suppose the cost should be figured as we talked
Judge KINNE was not prepossessing in appearance; he had a long nose
and a long chin, and, being withal somewhat toothless, the two made near
acquaintance as he talked. In the days of his practice imprisonment for
debt was the rule, and the "liberties of the yard" extended only a mile
from jail. Judge KINNE defended in a suit brought for an escape, but all
the other side was able to show towards the escape was that the prisoner
lived in Plainfield, and that about daylight one morning he was discovered
about one rod inside the jail limits running down Clay hill towards the
jail as for dear life. It looked very much as the truth was that he had
made a visit home and had not got back under cover of darkness. Judge KINNE,
from without the bar, addressed the jury -- "Gentlemen of the jury, the
plaintiff in this case has taken every method to prove my client within
the limits of the jail-yard, and I shall take no manner of means to prove
him out." And tradition is that the law was more severe than the administration
of it, and that juries considered "all intendments in favor of liberty."
At any rate that jury was all right. Judge KINNE died in Plainfield in
Charles BULKELEY, of Berlin, who was chief Judge from December 1,
1813, to December 1, 1814, was a lawyer, and an account of him will be
given among the sketches of the lawyers.
Denison SMITH, of Barre, was chief Judge from December 1, 1814,
to December 1, 1815, and was a lawyer, and will be sketched among members
of the bar.
Both the above named gentlemen I take it were Federalists ; BULKELEY
certainly was. But it is not certain how much politics had to do with the
choice of county Judges, for we find Stephen PITKIN elected in years when
opposing parties had control of the legislature.
Seth PUTNAM, of Middlesex, succeeded Salvin COLLINS as assistant
Judge, and served from December 1, 1813, to December 1, 1814. Judge PUTNAM
came with several brothers to Middlesex at a very early day, and was town
clerk and a colonel; he was an uncle of C. C. PUTNAM, of Putnam's Mills.
There is what purports to be a sketch of the Judge in Hemenway's Gazetteer,
but on examination it consists so far as facts are concerned in the statement
that he had three sons, Holden, Roswell, and George. So it proves to be
very much like the introduction that made Judge Alfred CONKLING so indignant.
After Roscoe had become popular, his father, the Judge, from whom the son
honestly came by both his brains and haughty bearing, was invited to speak
at some large meeting. When the time had come the usual committeeman introduced
to the audience "Judge CONKLING, the father of Roscoe CONKLING"; whereupon
the irate Judge bade the astounded committeeman "good evening, sir?" and
left, saying he would be -- if he would address a crowd to whose attention
his only title was that he was the father of somebody.
Stephen PITKIN, of Marshfield, succeeded Judge PUTNAM and was assistant
Judge from December 1, 1814, to December 1, 1820. He represented his town
thirteen years in the legislature. He moved into Marshfield March 1, 1795,
and died there May 22, 1834, aged sixty-two years. Judge PITKIN was a man
of commanding presence and influence in his town. In the cold season of
1816 and 1817, when almost no provision was raised, he was of great help
to his neighbors in procuring food to tide over the evil days -- fish it
was that helped out the hungry people. Gen. P. PITKIN, of Montpelier, is
a grandson of Judge PITKIN.
Stephen PIERCE, of Waitsfield, succeeded Judge KINNE, December 1,
1814, and served one year. I am unable to give account of him further than
this, and that he was a justice of the peace in Waitsfield.
Warren ELLIS, of Barre, became assistant Judge December 1, 1815,
and served the next three years, and again for awhile after the system
was changed in 1825. He came to Barre from Claremont, N. H., about 1803;
he was born in Claremont, May 24, 1777. Judge ELLIS was a saddler by trade,
and withal a good musician. He represented Barre seven years. His son Warren
H. went to Waukegan, Ill., and a daughter married D. H. SHERMAN, and went
West. Judge ELLIS died in Barre, June 10, 1842.
Joseph HOWES, Of Montpelier, was assistant Judge from December 1,
1818, to December 1, 1825, and at times thereafter. He was born March 28,
1783, in Lebanon. Conn., and came to Montpelier in 1808. In the War of
1812 he served two years as adjutant. He was second lieutenant of the company
that started for Plattsburgh. Judge HOWES was prominent in all town affairs
and a justly respected citizen. He died April 26, 1863.
Josiah B STRONG, of Northfield, was assistant Judge from December
1, 1820, to December 1, 1825, but I have found no other account of him,
except that he was sometime justice of the peace.
This closes the list of the Judges of the old County Court. December
1, 1825, substantially the same system as now exists came into being.
Of Washington County, Vt. 1783-1899,
and Published by Hamilton Child,
By William Adams.
Journal Company, Printers and Binders.
N. Y.; April, 1889.
by Karima Allison, 2003