Summer 2008 - #2. Ruminations.

Author:by Paul S. Gillies, Esq.

Vermont Bar Journal


Summer 2008 - #2.


The Vermont Bar Journal #174, Volume 34, No. 2 SUMMER 2008


The Trial of Cyrus Dean Fourteenth Annual Vermont Judicial History Seminar June 6, 2008 by Paul S. Gillies, Esq.Before there was a legal system in Vermont, before there were any permanent residents, the land was covered with forests. When the first settlers arrived, their first job was to clear the hills of trees, in order to open up enough land to site a cabin and plant an acre of corn or wheat to get through the next winter. In subsequent years, there was more clearing for pasture and meadow, to raise animals, and eke out a subsistence living, to bring order to the land on which to raise a family.

There were so many trees--far more than were needed to make homes, barns, and fences--that burning was the only choice to get rid of all that wood. Industrious early settlers discovered a market for the ashes. The products from ashes, potash, and pearl-ash became the foundation for the early economy of Vermont. In the northern part of the state, the market was across the border in British Canada, where merchants would purchase the remains of the forest, often making payment in salt, which was not available to the inhabitants of Vermont except in trade, to cure and preserve meat.

Anyone who has heated with wood and has cleaned out a wood stove knows that a cord reduces to a pail or two of ashes. Imagine then the number of trees needed to produce barrels of ash and render them into a form that would be saleable. That took a second rendering, boiling ashes in water, evaporating the liquid, and creating pearl-ash, which was white and pasty. Pearl-ash was used to make glass and as a bleach in the processing of cloth in England. Potash was made from pearl-ash, boiled again, mixed with lime, filtered, cooled, mixed with alcohol, boiled again, and dried to make a fine powder, which was used in soap-making, fertilizer, and medicine in England.(fn1)

The industry is gone now, but "potash" is a common name of brooks, mountains, and streets through Vermont. There is a Potash Road in Andover and Guilford, a Potash Bay in Addison, Potash Brook in South Burlington, and Potash Hill Road in Chester.(fn2) Only the name remains in common usage today, but the openness of the land is the most obvious consequence of all that cutting, burning, and boiling.

Life was hard in early Vermont for many reasons. One was the lack of roads, which necessitated the use of rivers and lakes to transport the ash products. Going north to market over water was the only option available to many settlers in the northern parts. It was difficult to tell where the border was, and people freely crossed between Vermont and Canada at will. They made the best bargain they could for the products of the land, and were grateful for the opportunity provided to turn waste wood into ashes, and ashes into salt. Ashes, and their products, were the sole source of commercial exchange for many.(fn3)

Vermonters celebrated statehood as the flowering of their efforts at independence. Statehood meant that Vermont was not part of New York or any other state. It meant a voice in Congress, the promise of security from northern aggression, inclusion in the markets of the nation, and the protections guaranteed by the federal constitution. Statehood seemed like such a bargain. There was no federal presence in Vermont, beyond a federal prosecutor and a federal tax collector. Government meant local and state authorities, few taxes, and relatively few interventions on how Vermonters chose to live their lives.

Then came the embargo. The very idea that some remote federal official or body could restrain trade in Vermont was regarded as an intrusion into the liberties of the people. The rosy hue of statehood paled quickly when Vermonters first realized the obligations of the federal connection. That national policies could intrude into the domestic affairs, and threaten the economy and the survival of families on the frontier, was an outrage.(fn4)

1808 in Vermont

An unpopular president was serving out his eighth and last year in office. People made fun of him, drew ugly caricatures of him, excoriated him in the newspapers and in talk on the street. Internationally, tensions ran high. We were at war in everything but the declaration.(fn5)

In Vermont, as in the rest of the country, two powerful political parties waged a form of civil war with each other. Democrats remained loyal to Thomas Jefferson. Federalists opposed the policies of the administration.(fn6) At the beginning of 1808, Democrat Israel Smith was governor, but in the September general election, the voters chose Federalist Isaac Tichenor, who had served as governor for ten years before 1807, when he lost to Smith.(fn7) Tichenor won the race in large measure because he shared the majoritarian view against the embargo.(fn8)

People were moving into Vermont faster than any other New England state but Maine. Between 1800 and 1810, Vermont's population of 154,465 spiked by 63,430 to 217,895, an increase of 141 percent.(fn9) State government finally found a home in Montpelier, and the 1808 General Assembly met for the first time at the State House, erected by the people of Montpelier as an incentive for choosing that place as the seat of government. The legislature had met in sixteen different towns over the years, and recently had jumped from Windsor to Rutland and back again every other year, creating "great inconvenience and expence" and an animosity between the towns on either side of the mountains.(fn10)

The Vermont State Bank was in its second year of operation, with offices in Middlebury, Westminster, and Burlington. Created out of a pressing need for financial stability, the security of deposits, and the availability of loans, currency, and notes, it never fulfilled the promise of stabilizing the economy. This failed experiment ended in 1813 with recriminations and lawsuits lasting into the next decade.(fn11)

Windsor State Prison was being constructed in 1808. Financed by a state tax, the prison was a work house designed to fulfill what legislators considered a constitutional obligation.(fn12) In his 1807 inaugural address, Governor Israel Smith suggested that constructing a prison would not only "prevent the expense to which other modes of punishment must subject it; but may make it, if thought advisable, a source of revenue to the State."(fn13) Among its first residents was the crew of the Black Snake, the notorious smuggler's boat.

The importation of slaves into the United States and throughout the British Commonwealth was finally outlawed by those governments in 1808, although it continued illegally after that time.(fn14) Nothing was moving on the seas in any case. Europe was fractured. America was at odds with France and Britain, and those two countries with each other. President Jefferson was waging a strategy of isolation that put Vermonters, as with most New England residents, at risk of economic disaster.(fn15)

Hard times engender hard feelings that sometimes turn to desperate measures.

The Embargo

The embargo against shipping was enacted by Congress at the President's urging at the end of 1807, but that made little real difference to Vermonters as it applied to ocean ports exclusively. It was the non-intercourse amendment to the embargo act in March of 1808, called the land embargo, that legally closed all the borders, including Lake Champlain and the land routes north to Canada.(fn16) The impact of the land embargo on Vermont was particularly severe.

Jabez Penniman was the chief federal agent in Vermont, serving as collector of taxes for Vermont. In his opinion, the border could not be protected without a military force.(fn17) Congress and the president agreed, and Jefferson issued a proclamation on April 19, 1808, identifying "Lake Champlain and the country thereto adjacent," as in a state of insurrection against the laws of the United States, commanding the insurgents to disperse, requiring all officers to quell and subdue the violators, seize them or disperse them.(fn18)

Swanton was regularly guarded, but industrious folks would distract a guard, sending him to one end of town, while potash was shuttled across the border. One night the guard heard what at first sounded like bullfrogs. One croaked, in a deep, sonorous voice, "All smugglers! All smugglers!" and received an answer, in a little frog's voice, "Piniman too! Piniman too!"(fn19) Penniman's life was threatened in an address to the public dated July 30, 1808.(fn20)

Many Vermonters defied the federal government by continuing trade across the border. The ingenuity of the smugglers knew no bounds. There were false sleigh, wagon, and trunk bottoms.(fn21) Vermonters met at town meetings, and passed resolutions in opposition to the embargo.

Spooner's Vermont Journal of June 20, 1808, published a resolution adopted by the voters St. Albans at a town meeting, opposing the land embargo, resolving,

That by the preserving and unceasing labour of hardy independent freemen, the gloomy wilderness, which, but recently covered this part of the state, and which a few years since was occupied by the savage and brute, had given place to agricultural enterprise; and the face of the country, from the Lakes and Rivers, to the heights of the Green Mountain, exhibited the plentiful fruits of industry, from which the cultivators of the soil began to enjoy the good of their...

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