• PERSONAL REMINISCENCES, 1840-1890: INCLUDING SOME NOT HITHERTO PUBLISHED OF LINCOLN AND THE WAR •

Book excerpt.
BY L. E. CHITTEKDEE NEW YORK, RICHMOND, CROSCUP & CO. 1893

Another original and strong character in the early judicial history of Vermont was Theophilus Harrington. He was elected Chief Justice of the Rutland County Court in 1800, and when the system was changed in 1803 he was elected a judge of the Supreme Court and held that position until his death in 1813. He was a farmer, who never studied law until 1802, when he was admitted to the bar of the court of which he was Chief Justice. It was Judge Harrington who decided against the slave-owner who had arrested his slave in Vermont, because he could not show title from the "original proprietor." The grantees named in the New Hampshire grants were called original proprietors, and when a lot-owner could show a chain of title which commenced with a deed from the proprietor to whom his lot was assigned in the division of the town, his title could only be defeated by an adverse possession or a subsequent deed. The slave-master supposed he had made a good title to the fugitive. Judge Harrington held otherwise. "But," pleaded the owner, " I show a deed from the owner of the mother of the slave."

"Your title may be good in Virginia," said the judge. "It is worthless here unless you show from the original proprietor."

"Who, then, is the original proprietor?" asked the master, "if not the owner as whose slave he was born?"

"The Almighty, sir!" sternly answered the judge.

"He or his grantee can have an order from this court to return a man to slavery. None other can!"

I take the following notes from the letter written me in 1860 by Obadiah Noble, a lawyer of Tinmouth, then in his eighty-fourth year: "Judge Harrington would express more in fewer words than any man I ever heard speak. He took no minutes of the evidence, yet he would repeat all that was material in a long trial with perfect accuracy. After a clear and perfectly fair charge to the jury, he would often say: 'If justice controls your verdict you will not miss the general principles of the law.'

"I remember a case in which Daniel Chipman was counsel, in which he produced a deposition of a witness who, he said, was one of the most reputable men in Troy. 'I am sorry for Troy, then,' said the judge, 'for if the angel Gabriel had signed that deposition I would not believe his testimony.' "I once heard him explain the statute of limitations or adverse possession in this way: 'When the first settlers came here a day's work would buy an acre of land, and men were not particular about their line-fences. They often varied from the true line to get a more convenient place for the fence. But when two owners made a crooked fence which gave one more land than his share and let it stand for fifteen years, that fence could not be straightened without the consent of both owners.' "

On the trial of an action of ejectment for a farm, the defendant offered a deed of the premises from the plaintiff, to which Daniel Chipman objected because it had no seal. 'But your client sold the land, was paid for it, and signed the deed, did he not?' asked the judge. 'That makes no difference,' said Chipman; 'the deed has no seal and cannot be admitted in evidence.' 'Is there anything else the matter with the deed?' asked the judge. Chipman 'did not know as there was.' 'Mr. Clerk,' said the judge, 'give me a wafer and a three-cornered piece of paper.' The clerk obeyed, and the judge deliberately made and affixed the seal. 'There! Brother Chip- man,' said the judge. 'The deed is all right now. It may be put in evidence. A man is not going to be cheated out of his farm in this court because his deed lacks a wafer, when there is a whole box of wafers on the clerk's desk!' 'The court will give me an exception?' asked the counsel. 'The court will do no such thing,' said the judge, and he did not.

"On another trial where counsel was examining a witness, Judge Harrington looked at him very intently and broke in with the question, 'Did you not once live in Rhode Island?' The witness answered that he did. 'Leave the stand, sir!' thundered the judge. Then turning to the lawyer he demanded what excuse he had for offering such a witness. The counsel claimed that he was an important witness, and that his client was entitled to his evidence. 'No, sir,' said the judge, 'that fellow won't open his mouth in this court! He is a knave, a scoundrel, who was convicted in Rhode Island for horse-stealing. ' The counsel insisted that his conviction should be shown by the record. 'I tell you that I know the fact myself. I should not know it better with a dozen records. Go on with the case!'" With all his peculiarities, the good sense and rugged integrity of Judge Harrington made him very acceptable to the bar as well as to the people.

One other anecdote of his career must suffice: He was vehemently opposed to the importation of Spanish merino sheep. On one occasion when he was at the State capital, a farmer who had at great expense imported a small flock of these sheep, and had them on exhibition there, had a long argument with Judge Harrington, in which he claimed that it was a benefit to the farmer to improve the grade of wool. He succeeded in inducing the judge to see the sheep, believing that his prejudices could thereby be overcome. The judge looked at the sheep, felt the fineness of their wool, and said nothing.
"Do you not see," said the importer, "that this wool is worth a third more per pound than that of the coarse-wooled Canada sheep?"
"That may be," said the judge, "but if improvement of wool is your object, why don't you go into the business of cultivating the negro? You could raise just as good wool and save the cost of dyeing!"

My note-books contain a large quantity of material which has given me a high esteem for these early settlers of my native State. Judge Harrington was by no means a solitary example of a judge of the highest court who had no legal education, but who discharged judicial duties to the entire satisfaction of his fellow-citizens. They were strong men, those early settlers, almost without exception, men whose education was limited to reading, writing, and the four simple rules of arithmetic. The sharp struggle of their fathers for existence in a new country, the necessity of utilizing the labor of their sons, made this restricted education, acquired by a few weeks' attendance at the log school-house, a necessity. Yet there were men among them who could frame a good constitution, but who could not write a grammatical sentence. There were civil engineers, military experts, diplomatists, and statesmen in the old Committee of Safety. Many farmers administered the law from the bench. Their strong common sense, inflexible integrity, and devotion to the principles of liberty perhaps qualified them for the judicial office better at the time than three years' service in an attorney's office or lectures at the law-schools. The precedents they established have seldom been departed from by their successors, some of whom have all the advantages that study and education could give to great natural abilities trained by long and intelligent experience.