The Vermont Court System: An Historical Overview

By Scott Andrew Bartley

The early history of Vermont reflects the political turmoil of eighteenth-century America. The first permanent settlement within present-day Vermont was at Fort Dummer, now in Dummerston, near the province of Massachusetts Bay, by whose laws Vermont was then governed. King George settled a long disagreement over the border between Massachusetts and New Hampshire in 1740 -- the same border exists today. The king's decision placed Fort Dummer in the province of New Hampshire. This province exercised its right to grant a number of towns for settlement.

Migration into Vermont was hindered by the outbreak of the French and Indian War in 17551. By the end of the war, in 1760, there were only 17 towns along the southern border with Massachusetts and up the Connecticut River. Peace in the area brought another 63 towns granted in 1761, nine in 1762, 37 in 1763, and only six in 17642. This activity brought to a head the border dispute with New York. Then in the politic good graces with the crown, New York took its grievance to the king. His Majesty ruled that this area, by will of the people (and not by any pre-existing charter) would best be served by the province of New York. Unknown to the people, their case was argued in London. The decision created great tension between the settlers and the government of New York3. It is here that I begin to outline the development of the courts of Vermont.

The province of northern New York had no defined borders. With the king's pronouncement, all the land that would become "Vermont" fell within the jurisdiction of Albany County, whose seat of government was at Albany. A year earlier, Lt. Gov. Colden recognized this was really New York's land and issued a proclamation that the judges and other civil authorities exercise control over the western banks of the Connecticut River. Petitions from the area immediately followed, pointing out that one could not travel from the settled banks of the Connecticut River without going through the province of Massachusetts! A meeting of the many appointed justices of the peace at Rockingham in 1766 appointed constables for the towns4.

The first county erected in "Vermont" by the New York government was Cumberland County in 1766, with its seat of government at Chester. This county was eliminated in 1767 and recreated with almost the same borders in 1768. The county of Gloucester was formed in 1770, being the northern half of eastern "Vermont" above the northern border of Cumberland County. Charlotte County was formed in 1772 and covered all of western "Vermont" except for the southern half of present-day Bennington County (which remained in old Albany county). These jurisdictions were eliminated with the declaration of independence of Vermont on 15 January 17775.

These counties operated under New York law (not detailed here) for the brief time they cover. Their system was evidently inefficient or incapable. Gloucester County recorded 121 cases; however, only 18 reached any judgment. Most of the cases involved debt6. The original records for this area of the frontier are seemingly incomplete. What is known to exist is described as follows.

For Cumberland County, the surviving original records are at the Windham County Courthouse, Newfane. Some of the record books have been microfilmed. These records include the Court of General Sessions of the Peace, 13 Sept. 1774 (3 pages); the Court of Common Pleas, 13 Sept. to 16 Dec. 1774 (25 pages); and Vol. 1, Court of Common Pleas & a Court of General Sessions of the Peace, June 1772 to December 17737. Some of the original case files exist, too8.

Gloucester County's surviving original records are just as scarce. They were kept for many years at the Orange County Courthouse, Chelsea, but may be with the earliest records turned over to the General Services Center, Public Records Division at Middlesex9. These records are contained on 20 leaves of paper. They have been published in the Proceedings of the Vermont Historical Society for the years 1923, 1924 and 1925 (Bellows Falls, Vt., 1926), pages 141 to 192, and reprinted asThe Upper Connecticut: Narratives of its Settlement and its Part in the American Revolution, Vol. 2 (Montpelier, Vt. : Vermont Historical Society, 1943), with the same pagination.

For Charlotte County, the surviving originals are with the New York State Library's Manuscripts Division. What is extant here is the Court of General Sessions of the Peace, Vol. 1, and the Court of Common Pleas, Vol. 1, both from 19 Oct. 1773 to 20 June 1775. The records for the county should have resided with Washington County, N.Y., and the remnant of the extinct county.

These New York counties no longer exist. In the case of Cumberland and Gloucester, the counties set up by the independent country of Vermont assumed their jurisdictions. By 1784, the remaining portion of Charlotte County was carved up and renamed, leaving these three names just a footnote in history. The story of the records since 1777 begins here.

Vermont modeled its judicial system and state law on Connecticut's10. Vermont's first constitution was established by convention on 2 July 1777. It provided that the people had a right to trial by jury, and that Courts of justice shall be established in every county. The Supreme Court and the several courts of common pleas shall have the usual powers of such courts and the power of chancery that are not inconsistent with this constitution11.

A court system was already functioning on 17 March 1778, when the general assembly addressed the issue of providing attorneys and regulating fees12. From the end of the New York courts' sessions in June of 1775 to the legislation enacted by the general assembly in 1778, there was effectively no legal court system in Vermont13. Temporary courts were created by the assembly on 24 March 1778 with five judges for the "shires" of Newbury, Westminster, Bennington, and Rutland. The nature of these courts was clarified on 5 June of that year and stated that these courts were not county courts14. Later that year the following courts were created:

  • Supreme Court of Judicature
  • Court of Chancery
  • County Court
  • Probate Court
  • Justices' Court
  • Court of Confiscation

Vermont, as an independent state, ratified its constitution on 2 July 1777, in Windsor. The beginning of its court system was outlined in Chapter II, Section 4. It was simply stated that the "Courts of justice shall be established in every county in this State." The judicial power of the State was vested in a unified judicial system composed of a "Supreme Court, and the several courts of common pleas..."1. This system evolved into three basic levels: Supreme Court; courts of original and general jurisdiction; and minor courts of limited or special jurisdiction.

The Supreme Court of Judicature was first called the Superior Court in the General Assembly's enacting legislation on 23 October 17782. The court held only one session in each half shire annually3. To clear up the line of jurisdiction between the Superior Court and the county courts, "an act defining and limiting the powers of the several courts within this State" was passed in 1782. According to this act, the county courts were continued (having been organized the year before), the Superior Court abolished, and the Supreme Court of Judicature established4.

The Supreme Court is an appeals court only, for all practical purposes, in the modern sense. By statute, it has exclusive jurisdiction of petitions that cannot be tried by jury. It may issue writs of error5 to courts of inferior jurisdictions6. The court can also order a new trial in any court7. Historically, this court held jurisdiction over all criminal actions, which includes adultery, polygamy, treason, counterfeiting, forgery, perjury, incest, rapes, defaming of civil authority, and all other crimes for which the fine went to the state treasury. Each session, the court moved about the state from one shire town (in other states known as the county seat) to another8.

The Court of Chancery was established by act on 3 March 1797; the Superior [now Supreme] Court operated as the chancery before this. It met at the same time and place, and with the same officials, as the Supreme Court. This court was considered to have all the same powers as its counterpart in England, as long as these did not conflict with the Vermont constitution. This court was what is now termed a "court of equity." Cases brought before this court were tried against justice that was deemed fair--the Supreme Court applied only the law as written. In 1839 the chancery was separated from the Supreme Court, and one judge was selected to sit at the same time as the county court in each county. This court was in existence in 1857, but I have been unable to determine when it ceased. Present-day Vermont does not have a chancery; however, archaic laws for it are still on the books9.

The county court was first created in 1781. These courts evolved into the modern district superior courts. This court has original and exclusive jurisdiction of all original civil actions, except those that are admissible in the justices' or municipal courts; petitions; and appellate jurisdiction of civil or criminal causes appealable to this court. This court can also grant retrials (at the county level). The superior judge is designated by the legislature to be the chancellor, in effect, making the county court the de facto chancery court. Divorce cases are handled here. Appeals from this court go directly to the state supreme court10.

The probate court was created by the General Assembly on 24 March 1778. It created probate districts and set the fees to be three times that established by Connecticut law11. Each county was to have four probate districts, to be drawn up by committee12. Probate courts were established as counties were created. (The west side of the Green Mountains was named Bennington, and the east side was named Unity--changed to Cumberland four days later--on 17 March 1778.)

The probate court is the only court that does "not proceed according to common law," but under the jurisdiction of statutes. An appeal of equity can go to the county court; however, a point of law goes directly to the Supreme Court. The probate court has "jurisdiction of the probate of wills, the settlement of estates, the appointment of guardians, and of the powers, duties and rights of guardians and wards." This includes all adoption cases and any land transfer by descent13.

The justices' court was the court run by the justice of the peace. It was designed to handle the day-to-day issues of a small, but legal nature. These courts had the power to try all criminal actions that would result is a fine or forfeiture not exceeding 40s and corporal punishments not exceeding 10 stripes! All civil actions went before the justices' court except those of defamation, replevin, trespass, or where title of land was concerned14.

Special Courts
The first municipal court was created at the incorporation of the first city, Vergennes, in 1788. The mayor was selected as its judge. It is unclear whether he ever acted officially in this capacity. The next municipal court was established at Burlington in 1865, with the head of the court being called a "recorder." Similar courts were later set up in Barre, Bellows Falls, Bennington, Brattleboro, Brighton, Montpelier, Rutland, St. Albans, Springfield, and Winooski, and in the counties of Addison, Caledonia, and Orleans15.

These fourteen courts had the same power as the justices' courts; however, their jurisdiction was greater. These courts covered their entire county, with a couple of exceptions. If there were two courts in the county, each court had jurisdiction in the entire county, except for the town where the other court was located. If a county had more than one probate district, this court covered only the towns within its probate district. This meant that there were no municipal courts in the counties of Grand Isle, Lamoille, and Orange16.

A court of confiscation, one in each county, was authorized by the governor and council on 26 March 1778. Seven men were appointed as a court to confiscate and order the sale of estates belonging to the enemy. These men were actually the governor and council themselves and were on the court within the county in which they resided. The General Assembly ratified this arrangement on 12 February 177917.

This court operated throughout the Revolutionary War. Anyone deemed a "Tory," that is, loyal to the Crown of England, had his lands confiscated and sold to the benefit of the state. The families usually moved to Boston, New York, or to Canada for the protection of the British Army. There are 152 known Tory cases in Vermont, whether their title was from Vermont or a claim from New York. Loyalists petitioned the British Parliament for their losses. Between 1785 and 1789, over 5000 cases were reviewed18.

Circuit judges were instituted by an act that took effect in the fall of 1850 as a change to the judicial system. A Supreme Court of three judges was authorized, the state was divided into four judicial circuits, and a circuit judge was appointed in each. It was his duty to preside in the county courts, the Supreme Court judges having no duties to perform in the county courts; each circuit judge was a chancellor, the Supreme Court having no jurisdiction in equity matters, except as a court of appeals. This act continued in force for seven years and was repealed by an act that took effect in 185719.

Readers interested in this subject, or related ones, should review the works cited in the article and this list of additional works:

  • Billias, George Athen, ed. Law and Authority in Colonial America (New York, 1965).
  • Friedman, Lawrence M. A History of American Law (New York, 1973).
  • Gorham, Alan. "Federal Court Records Pertaining to Vermont: Sources for Study," Vermont History. Vol. 39 (Summer/Fall 1971).
  • Horwitz, Morton J. The Transformation of American Law, 1780-1860 (Cambridge, Mass., 1977).
  • Jeffrey, William, Jr. "Early New England Court Records - A Bibliography of Published Materials," American Journal of Legal History, 1 [1957]: 119-47.
  • Vermont Historical Society Collections (Montpelier, Vt., 1870-1871), 2 vols.

Footnotes for Part One

  1. Samuel Williams, The Natural and Civil History of Vermont (Walpole, N.H., 1794), 211-12.
  2. Esther Munroe Swift, Vermont Place-Names : Footprints of History (Camden, Maine: Picton Press, 1996), 571-75. The first towns were Bennington (1749); Halifax (1750); Marlboro and Wilmington (1751); Rockingham and Westminster (1752); Brattleboro, Dummerston, Newfane, Putney, Stamford, Townshend, and Woodford (1753); Chester, Grafton, and Guilford (1754); and Pownal (1760).
  3. Williams [see note 1], 213-16.
  4. Russell S. Taft, "The Supreme Court of Vermont," founded in many annuals of the Vermont Legislative Directory as early as 1906. For this article, the 1910 edition was used.
  5. John H. Long, ed., New Hampshire-Vermont: Atlas of Historical County Boundaries (New York: Simon and Schuster, 1993), 78 [chronology]; 112, 121-23, 138 [detailed maps].
  6. Michael A. Bellesiles, "The Establishment of Legal Structures on the Frontier: The Case of Revolutionary Vermont" published in Journal of American History, 76 [1986-1987]: 901-902.
  7. Personal inspection by the author on location 14 May 1993.
  8. Beth T. Muskat, "Windham County Court Records, 1766-1974" (typescript, Jan.1991), some material is stored in the county jail and the rest in the court house vault.
  9. Personal inspection by the author on location 22 Dec. 1988.
  10. Taft [see note 5], 276.
  11. William Slade,
  12. Vermont State Papers (Middlebury, Vt.., 1823), 241-55.
  13. State Papers of Vermont, vol. 3, Journals and Proceedings of the General Assembly of the State of Vermont, vol. 1 (Bellows Falls, Vt.: Secretary of State, 1924), 7, before the establishment of the counties later that sessions.
  14. Taft [see note 4], 265.
  15. State Papers of Vermont. Volume 3 [see note 12], 15, 22.

Footnotes for Part Two

  1. Vermont Constitution of 1777, Ch. II, §§ IV, XXI.
  2. State Papers of Vermont, vol. 3, Journals and Proceeding of the General Assembly of the State of Vermont, vol. 1 (Bellows Falls, Vt., 1924), 47.
  3. William Slade, Vermont State Papers (Middlebury, Vt., 1823), 549-56; Russell S. Taft, "The Supreme court of Vermont," in Vermont Legislative Directory(Montpelier, 1910), 270.
  4. Taft [see note 3], 270, 276-77; Michael A. Bellesiles, "The Establishment of Legal Structures on the Frontier: The Case of Revolutionary Vermont," Journal of American History 73 (1986/6): 908.
  5. That is, to allow a view of a case to correct an error or to affirm the previous decision.
  6. Andrew E. Nuquist and Edith W. Nuquist, Vermont State Government and Administration (Burlington, Vt.: Government Research Center, 1966), 233-34.
  7. Harris E. Thurber, "The Vermont Judiciary: A Study in Cultural Adaptation" (Ph.D. diss., Princeton University, 1955), 107.
  8. Samuel Williams, The Natural and Civil History of Vermont (Walpole, N.H., 1794), 353.
  9. Williams [see note 8], 354; Henry Campbell Black, Black's Law Dictionary, 5th ed (St. Paul, Minn.: West Publishing, 1979), 321-22, 484; Frank L. Fish, "The Vermont Bar and Bench" in Walter Hill Crockett, ed., Vermont: The Green Mountain State (New York, 1923), 5: 18-19.
  10. Taft [see note 3], 270; Nuquist [see note 6], 232-33; Thurber [see note 7], 127-31.
  11. State Papers of Vermont, vol. 3, Journals and Proceeding of the General Assembly of the State of Vermont, vol. 1 (Bellows Falls, Vt.: Secretary of State, 1924), 16.
  12. State Papers of Vermont, vol. 3 [see note 10], 8.
  13. Thurber [see note 7], 187, citing Vermont Statutes, Revision of 1947, Section 2793, and Barber v. Chase, 101 Vt. 343 (1928); Nuquist [see note 6], 229, citing 4 VSA § 311.
  14. Williams [see note 8], 352.
  15. Fish [see note 9], 5: 22-23. These courts were disbanded in 1965.
  16. Ibid.; Thurber [see note 7], 147-65.
  17. E. P. Walton, Records of the Council of Safety and Governor and Council of the State of Vermont (Montpelier, Vt., 1873-1880), 1: 235, 248-49; State Papers of Vermont, vol. 3 [see note 10], 53.
  18. State Papers of Vermont, vol. 6. Mary Greene Nye, "Sequestration, Confiscation and Sale of Estates," 9-10, 439-44.
  19. Taft [see note 3], 277.