The inhabitants of the territory constituting the State of Vermont were, for a number of years after settlement began, without protection from what might be termed a court. There were committees and councils of safety in existence, but as to their nature, origin and the scope of their powers, little is definitely known, particularly as they may have exercised some of the functions of the later courts. The truth is, there was no regular government in the State; everything was unsettled; no social compact existed, nor any bond of union save that which resulted from common wants and common dangers; and everything that bore the semblance of organization was a premature offspring of urgent necessity.

      Down to the year 1778 the territory of which this work treats thus continued outside the pale of judicial authority; but such a state of affairs could not long continue, and in the year named, in the month of October, the Superior Court was established, its first sitting being held on the 26th day of May, 1779. According to the law passed in February, 1779, from which we quote, "This court shall have cognizance of any action where the matter does not exceed twenty pounds, or the fine does not exceed twelve pounds, except by appeal;" in short, within the above limitations, it had jurisdiction in all causes of action. It consisted of five judges, one of whom was termed the chief judge, and four termed side judges, any three of whom could hold a court. It was virtually a copy of the old English system. Two of the judges had power to adjourn the court, and the clerk was appointed and sworn in by all of the judges. The chief judge, or, in his absence, any three of the side judges, had power to call a special court. Terms of this were directed to be held as follows: Within and for the county of Bennington, at Bennington, on the second Thursday of December then next. Within and for the county of Cumberland (a county, by the way, which never had a legal existence) at Westminster on the second Thursday of March, then next. Within and for the County of Bennington, at Rutland on the second Thursday of June then next. Within and for the county of Cumberland, at Newbury on the second Thursday of September then next.

      The first judges of this court were Moses ROBINSON, chief judge; John SHEPHARDSON, John FASSETT, jr., Thomas CHANDLER and John THROOP, side judges. The first docket contained forty-one cases, in sixteen of which judgments were obtained and executions issued. Noah SMITH was the State's attorney. On the very first page of the court records (now preserved in the Rutland county clerk's office) and preceding the docket, we find the following:

      The last sitting of this Superior Court was held in Rutland in the spring of 1783, and probably in the old State-House, which is still standing on West street and of which an illustration will be found in this work. The clerk at that time was Obadiah NOBLE and he had with him, of course, the previous court records. These were left naturally enough with the clerk of Rutland county after the last session of the court. Previous to that date the court had been held in Tinmouth, then the county seat. In this manner all the old records are in a state of fair preservation, not only covering the period since the formation of Rutland county, but previous to that time and from the very beginning, and are now in the county clerk's office and jealously cared for by Clerk Henry H. SMITH, who properly appreciates their great value.

      Between the spring term and that of the following June the Superior Court was supplanted by the Supreme Court, the first session of which was held in Rutland on the second Tuesday of June, 1783. This court consisted, down to 1786, of five justices, one of whom was the chief justice and four were assistant justices. From 1786 to 1825 it consisted of three justices; in 1825, 1826 and 1827, it consisted of four justices; and from 1827 it consisted for a number of years of five judges. Since that time two other assistant justices have been added, making seven at the present time.

      Briefly, this Supreme Court had cognizance of all pleas of the State, criminal actions and causes, and whatever related to the preservation of the peace and punishment of offenders; also of civil actions between party and party, between the State and any of its subjects, whether the same were brought before it by appeal, writ of error, or otherwise. It had exclusive jurisdiction of the crimes of adultery, polygamy and all capital felonies; of treason, misprison of treason, counterfeiting the currency of the State, forgery, perjury, incest, rape, defaming the civil authority of the State, and all other crimes and misdemeanors where a fine or penalty went to the State treasury, or where the punishment extended to the loss of life, limb or banishment. The officers of this court and the others described in this chapter, are named in Chapter IX.
 
 

      The first County Court held on the west side of the Green Mountains sat at Tinmouth for the county of Rutland (then recently organized) on the 24th of April, 1781. Previous to this date the Superior Court, before described, was the only court of law and equity in the State. Jonathan BRACE was made the clerk of this County Court, and Nathaniel CHIPMAN still remained the State's attorney.

      The County Court continued to sit in Tinmouth until the fall of 1784, when, on the third Tuesday of November, it sat in the village of Rutland. Present, Hon. Increase MOSELEY, chief judge; Benjamin WHIPPLE, William WARD and Samuel MATTOCKS (it is spelled "Mattox" in the record), assistant judges. In Thompson Civil History of Vermont (1840), the jurisdiction of the County Courts is given as follows: 

      There was no change in the County Court until 1824 (taking effect in 1825), when the following provision of law was passed: 

      The same act defines the jurisdiction of the court as follows: 

      There have been no other changes in this court, except that in 1856 a circuit judge was specially elected, under Legislative enactment, to preside over the County Courts in his circuit, instead of one of the Supreme Court judges, as theretofore provided. This method prevailed, however, only during the year 1857, when the former plan was adopted.

      The Court of Chancery was provided for, to be held in the several counties, at the several times and places designated for holding the Supreme Court. The judges of the latter court were constituted judges or chancellors of the Court of Chancery, with powers similar to those held by the chancellors of the English courts. This court passed out of existence in 1839.

      The judges of the Supreme Court previous to the organization of Rutland county were, for 1778, Moses ROBINSON, chief judge; John SHEPHARDSON, John FASSETT, jr., Thomas CHANDLER and John THROOP, side judges. 1779, Moses ROBINSON, John SHEPHARDSON, John FASSETT, jr., John THROOP and Paul SPOONER. 1780, Moses ROBINSON, Paul SPOONER, John FASSETT, jr. Increase MOSELEY and John THROOP. (See Chapter X. for subsequent judges).

      The clerks previous to the formation of the county were Stephen H. BRADLEY, whose administration embraced at first all the State, and subsequently became diminished as the various counties were organized; and Jonathan BRACE, who held the office one year.
 
 

      These courts were established about simultaneously with the erection of the county, and have continued with little or no change until the present time. According to the statute it was provided that "this court shall be a court of record and shall have a seal." Its jurisdiction was made the probate of wills, settlement of testate and intestate estates, appointment of guardians, and over the powers, duties and rights of guardians and wards. It was provided that the probate judge should appoint a register, whom he might remove at his pleasure; that he might issue warrants and processes to compel the attendance of witnesses, etc. This county was divided into two districts -- the district of Rutland and the district of Fairhaven. The former embraces the towns of Rutland, Pittsford, Brandon, Chittenden, Pittsfield, Sherburne, Mendon Clarendon, Shrewsbury, Mount Holly, Mount Tabor, Ira, Middletown, Tinmouth and Wallingford. The Fairhaven district includes the remaining towns of the county.

      These officials were until 1850 850 nominated and appointed annually by the General Assembly. Originally they had power to try all actions of a criminal nature, where the fines came within the sum of forty shillings, and the corporal punishment did not exceed ten stripes. They could also try civil actions (other than actions of defamation, replevin, trespass upon the freehold, and where the title of land was concerned), where the debt and other matters in demand did not exceed the sum of four pounds; and also determine on all specialties, notes of hand, and settle accounts not exceeding the sum of eight pounds. They could also bind over to be tried, by the County or Supreme Court, all criminal offenders the enormity of whose offenses surpassed their power to try.

      The jurisdiction of justices of the peace has been gradually extended, as experience has shown was desirable, and now embraces the hearing of all civil matters where not more than $200 is involved and criminal matters where the fine does not exceed twenty dollars. They may also cause persons charged with crimes exceeding their jurisdiction to be apprehended and committed to prison, or bound over with sufficient sureties, for trial by the County Court.

      The constitution of the State was so amended in 1850 that assistant judges of the County Court, sheriffs and high bailiffs and State's attorneys were thereafter elected by the freemen of their respective counties, judges of probate by the freemen of their respective districts, and justices of the peace by the freemen of their respective towns.
 
 

      In the records of the courts on file in the clerk's office of this county, extending as they do back even beyond the history of the county itself, are many things of surpassing interest which cannot for want of space be transcribed here; but brief reference to some of them will not be out of place.

      We find entered as a rule of the court, in connection with the first docket of the County Court, before alluded to, the following, which will inform the present bar how their predecessors of that day were admitted to practice:

      The whipping-post was an important adjunct of the early courts for the suppression of crime, and was found in many of the towns of the county. The one used in the town of Rutland stood not far from the site of the present fountain in the park on Main street; with it was connected, as customary, the pillory. Here many prisoners convicted of crime were stripped to the waist, tied up to the ring in the post and lashed with a cat-o'-nine-tails, the number of stripes being judged in the sentences. A criminal was thus punished in Rutland as late as 1808. There was, as is well known, a great deal of counterfeiting of paper money in the early years of the county's existence, and the punishment visited upon those engaged in the nefarious business was often very severe. In 1785 one Canfil WOOD and another man named CARPENTER were arrested and hurried through a trial in which their guilt was established. The sentence of the former was that he "receive fifteen stripes on the Naked Body, on the 15th day of instant [January]," in Rutland. CARPENTER was sentenced to receive thirty-nine stripes. These sentences were executed, and the feeling of the community towards counterfeiters generally is indicated in a grim sort of way by the sheriff's return, on which was endorsed the fact of the execution of the sentence, followed by the expressive words, "Well laid on!" There are persons living in Rutland to-day who well remember the whipping-post and its uses.

      Another instance, the details of which have been searched by the kindness of Clerk Henry H. SMITH, is similar in character to the one described, but shows more forcibly the expedition and certainty of execution observable in many of the old criminal cases. The crime in this instance was passing counterfeit money, and the time 1808. Royal TYLER was presiding judge and Theophilus HERRINGTON and Jonas GALUSHA, assistant judges. The principal criminal of those arrested was found guilty and sentenced to stand one hour in the pillory, be whipped thirty-nine lashes at the public whipping-post, with cat-o'-nine-tails, and pay a fine of $500 and costs of prosecution ($67.20), and be confined to hard labor in the State prison for seven years and stand committed until said sentence be complied with. The others received sentences more or less similar. The trial, sentence and its execution, as far as the transportation to the prison, all took place in one day. The venerable Amasa Pooler, still living in Rutland, witnessed the whipping in this case, and saw the sheriff wash the naked backs of the culprits with rum, which he poured from a large pitcher. Something near a hundred sleighs were drawn up around the park, although the day was bitterly cold and the snow deep, to witness the execution of the sentence.

      In 1782 the records show that the following persons in the county were licensed to keep public houses and sell liquors under certain restrictions. In Rutland, William BARR and Captain John SMITH, 1st. Castleton, Reuben MOULTON, Frederick REMINGTON, Isaac CLARK. Poultney, Silas HOW, Nathaniel SMITH, Thomas ASHLEY. Pawlet, Jonathan WILLARD, Zadock EVERIST, Joseph ARMSTRONG, Thomas LOTHROP, E. CURTICE, Elisha CLARK. Clarendon, Increase MOSELEY, Elihu SMITH, John BOWMAN, F. TULLAR. Tinmouth, Solomon BINGHAM, Daniel EDGERTON, Cephas SMITH, Benjamin HASKINS, Neri CRAMPTON. Wallingford, Abraham IVES, Alvin JACKSON.

      Among the old warrants are many strange and quaint pictures of criminal life. One man was arrested for assaulting his wife, "taking his sword and other weapons Dangerous, in a manner which put y'r Complainant in Fear of her Life and Safety."

      So, also, in the numerous complaints are to be found interesting documents. John BURNAM, esq., who is hereafter alluded to as long a prominent lawyer in Middletown, complained that "Titus SIMONDS, of Hartford, in the county of Cumberland, is guilty of Enimical Conduct against this and the United States of America, in that he, the said Titus SIMONDS, on the 4th of September, 1777, did go over to the Enemy, and aid, and assist then against the said States and afterwards was found within tile limits of the State, lurking in a secret manner," etc.

      Another complaint of May 26, 1779, alleges that Isaac REED, Enos LOVELL and Asher EVENS, did "break the peace in a Riotous and Tumultuous manner, assembled with other persons, by threatening and Insulting Capt. Lemuel SARGENTS, of Rockingham in s'd county, when in the execution of a Lawful command, all of which wicked conduct is a flagrant violation of the laws," etc.

      Another of this class of documents alleges on the part of Elnathan HUBBELL, of Bennington (after reciting his good name, etc,), that Abner MILL slandered him so as to "deprive him of his good name and fame, credit, esteem and reputation aforesaid, and to bring him into scandalous reproach and displeasure, in the following language; ' Bennington, Aug. 6, 1779. These lines from your friend, Elnathan HUBBELL to Abner MILL, I desire you'ld come and pay me for that hive of Bease you have taken from my house in the Silent Night, thinking you were secure, but there being two undiscovered to you have acquainted me which are your friends and mine and if you will come spedily and settle it with me, well I nor witnesses will not expose you, if not you may expect the sudden fate,' " etc.

      Imprisonment for debt was not abolished in this State until the year 1839, previous to which the courts were burdened with that sort of legal business. But we cannot extend these quotations further. They serve to show in unmistakable terms, the condition and practices of the courts and officers of early times.

      In this connection the following quotation from an old volume entitled Travels Through the Northern Parts of the United States, in the Years 1807 and 1808, published in 1809 by Edward Augustus Kendall, describing a court scene in Rutland in early days, is pertinent and interesting:

     After further describing the arguments of the counsel in a similar vein, the writer conveys the information that the prisoner was held; he concludes as follows: 

      The presiding judge on this occasion was Theophilus HARRINGTON (or Herrington, as he rote his name), the eccentric magistrate of that period, of whom the reader will find a sketch a little further on, and also some notes regarding him in the subsequent history of the town of Clarendon. To those of the present day who are familiar with the characteristics of that individual, it will not need to be said that he was the last person who would be apt to utter complaint at a want of respect towards himself in open court.
 
 

"History of Rutland County Vermont with Illustrations & 
Biographical Sketches of Some of Its Prominent Men & Pioneers"
Edited by H. Y. Smith & W. S. Rann, Syracuse, N. Y.
D. Mason & Co., Publishers, 1886
History of Rutland County
Chapter XVII.
(pages 255-264)

Transcribed by Karima, 2002