Vermont Bar Journal
Spring 2009 - #5.
The Hanging Tree and the Pillory The Roots of Crimial Law in Vermont and Montana
THE VERMONT BAR JOURNAL Volume 35, No. 1 SPRING 2009
The Hanging Tree and the Pillory The Roots of Crimial Law in Vermont and Montanaby David F. Kelley, Esq.
"I suppose it is no good telling you that we're innocent?"
"No good," Tetley assured him.
Walter Van Tilberg Clark, The Ox-Bow Incident
Years ago a man who was a security guard, and who carried a firearm, walked into my office. He told me he had been involved in a nasty custody fight. He had gone to the Williston barracks of the Vermont State Police to solicit their help in a domestic dispute. He apparently irritated the officers on duty because they arrested him and charged him with violating a statute that made it illegal to carry a firearm in a state institution. Those police officers then sent out a press release and, as a result of the subsequent publicity, the fellow lost his job. The Vermont State Police made this arrest despite the fact that the term "state institution" referred to a corrections facility or a state hospital, but plainly not a police barracks.(fn1) This fellow had not done anything wrong. It sounded to me like he got arrested because he had irritated somebody and that is not a crime. Back then I was mostly worried about paying my bills, and this was not a case that was going to ring any bells, but it made me think back to when I was in law school. I lived a block behind the United States Supreme Court. Everyday on my way to and from school I could not help but notice the words above the entrance to the Court: "Equal Justice Under Law." It was a phrase that was probably first coined by Chief Justice Melville Fuller when he wrote: " . . . no State can deprive particular persons or classes of persons of equal and impartial justice under the law."(fn2) The architect who designed the building dropped the words "and impartial" because they took up too much space.(fn3)
The notion that all citizens, perhaps even non-citizens as well, would be treated equally by our justice system is a notion that is superficially simple. Justice is sometimes at the mercy of a person, place, or time. Like Atticus Finch, we hope our law enforcement officers and our courts have the wisdom to rise above passions and prejudices in their administration of justice, but the winds of passion and personal prejudice and the winds of the here and now are powerful forces. And sometimes the people empowered to administer the law forget that the law was meant to serve something besides themselves. We can look back through history and condemn much of what has passed for "justice." But the tougher question is whether we ourselves could have done better, had we been there.
We had the criminal charges against the security guard dismissed, and then we sued the State Police for, among other things, false arrest and malicious prosecution.
Today the two states whose legal systems I am most familiar with are Montana and Vermont. Looking back on the history of criminal justice in both places, one can begin to sense how elusive the ideal of "equal justice" can be when it is pummeled by the winds of passion and prejudice. It was an entirely different set of passions that brought the first settlers to both places and it was those passions that manifested themselves in the criminal justice systems they spawned.
It is not hard to understand why people came to Montana. Montana's nickname is "The Treasure State." Montana's motto is "Oro y Plata"-"Gold and Silver." The first white settlers came to Montana to get rich. Most of them died poor, but in the interim many of them spent a good deal of time fighting over those beguiling minerals.
Vermont was a different kettle of fish. But the passions that drove people to settle there were no less treacherous. The first white settlers came to Vermont from Connecticut. They were the second or third generations of evangelical Puritans, like Thomas Hooker, who had founded the Nutmeg State. The Nutmeggers who left Connecticut for what was to become Vermont were no less zealous in their quest for redemption. And they certainly did not think the Crucifixion was sufficient atonement for anybody's sins.(fn4)
Not surprisingly, the roots of criminal law in Montana are buried deep in the protection of property. The roots of criminal law in Vermont are buried deep in the promotion of morality.
In 1862, miners flocked to Montana when gold was discovered on Grasshopper Creek. There were no courts, no jails, and no police. There was a lot of gold and a lot of people who did not care how they acquired it. People needed to bring some semblance of order to the mining camps. The people who brought order, though not necessarily law, to these mining camps were lawyers.
There is a portrait hanging in the Montana State House of a man named Sidney Edgerton. Mr. Edgerton's...