The White Horse

Editor's Note: At SCOV Law, we focus our efforts on summarizing current SCOV cases as they are issued on a prospective basis.  Since our summaries only go back to July 1, 2010, there will always be over two hundred years of decisions that will never get the SCOV Law treatment.  Fortunately, Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.  (This is kind of like Shelby Foote volunteering to narrate an amateur Civil War re-enactment.)  This is Paul's first entry, and what better place to begin than at the beginning.

by Paul Gillies

The first case heard by the SCOV was Griffin v. Galusha (1778).  The report of this case is found in Secretary of State William Slade's State Papers of Vermont (1823).  The location of the original paperwork is unknown.

 The court organized at Stephen Fay's Green Mountain Tavern (later known as the Catamount Tavern) in what is now Old Bennington, in December of 1778.  The judges took their oaths of office, appointed Stephen's son Jonas as the first clerk, and opened the court for the conduct of business.  If numbers were assigned, this was Docket No. 1.  The caseload of the first term was five cases in all. 

Griffin accused Galusha of fraudulently taking and detaining a certain white horse.  Both attended the first hearing, and, as the record explains, "joined issue in the case depending."  Galusha moved for the "adjournment of the case, for the want of material evidence," and the court put off the trial to another day.  The next February, Griffin v. Galusha was called to trial, but this time Galusha did not appear, and Galusha was "called off in default."  The court ordered the horse, then in the sheriff's custody, returned to Griffin, and required Galusha to pay £12 and change for fees and costs.

Galusha returned the next day and his lawyer petitioned for a review.  The following day the court heard the evidence, returned the white horse to Griffin, and held Galusha responsible for a little more than half what the court ordered the previous day. 

Jacob Galusha had moved to Shaftsbury, Vermont from Salisbury, Connecticut in 1775.  At Salisbury, his neighbors included the Allens, the Chipmans, and the Chittendens.  In his years, Jacob married four wives, served as Shaftsbury's town clerk for 41 years, a justice of the peace, and town representative, and lived to the age of 80, a stalwart member of the community.  Of his wives, he said, "I have been twice in heaven, once on earth, and once in hell."  His brother Jonas was Vermont Governor from 1809-1813, and for two years before taking that office he was elected an Associate Judge of the Vermont Supreme Court.

William Griffin---no relation to our own esteemed Chief Assistant Attorney General---is less remembered, aside from being Vermont's first plaintiff, and first to succeed in the courts of Vermont.  He may have been the same William Griffin who married Loana Welden of Salisbury, Connecticut and settled in later years in St. Albans.
Nothing more is known of the white horse.

The SCOV blog prides itself on identifying trends in the new cases that spring out of the chambers of the high court every month.   Starting at day one of the court, while having an idea of what comes next, any prediction would seem immodest, but I have noticed, in the world of the blog, certain liberties appear to be available to the writer, and so we will proceed.

The first thought triggered by the report is the lack of efficiency.  Here in the first case to be heard by a Vermont court there is a delay, a default judgment, a claim for review, a trial, and a final judgment.  It took twice as much time as it should have, and gave Galusha a second chance, despite the default.  Justice was altogether too accessible in this instance.  The court was clearly very interested in satisfying all of the parties, proving the court's commitment to fairness and access to the courts.  But if every contested case could be retried, the work of the courts would double.  The court would come to see the value of issue and claim preclusion. 

There is not much to say about the procedures used.  The court had yet to adopt any rules.  There was no court administrator (no furlough days), and no attorneys, officially at least.  It wasn't until May of 1779 that Stephen R. Bradley and Noah Smith were admitted to practice, becoming the first two members of the bar.  Galusha had a lawyer, but he was unnamed, and maybe that is for the best.

The judges were all lay persons, having no training in the law, but they were experienced men of the world, and that was enough to qualify for office, along with residency and loyalty.  There was Chief Judge Moses Robinson, and four others.  They had been elected in October of 1778, at the legislative session in Windsor.  They had no robes.  Their bench was a table.  Doubtless there was not even a gavel.  Still, they had their duty to perform. 

Today the Supreme Court has little original jurisdiction; at the beginning, it was both a trial and appellate court, and there was ample time to perform both functions.  For a total of four days' work, Chief Judge Moses Robinson was paid £6.  The court had five members at the beginning, although only four showed up for this case.  John Shepardson, the absent judge, was replaced for the purpose of the trial by Jonas Fay, a member of the Council.

If you were a judge's clerk at the February 1779 session, you would have had very little law at your command.  There was the 1777 Vermont Constitution, which demanded, then and now, that "all courts shall be open, and justice impartially administered, without corruption or unnecessary delay . . . ."  The court's authority, "beside the process usually exercised by such courts," would include "such other powers as may be found necessary by future General Assemblies, not inconsistent with this constitution . . . ." That phrase, "beside the process usually exercised," implies a common law of procedure, as well as principles.

The legislature had adopted the common law by statute in March of 1778.  The only source of the common law at that time was Blackstone's Commentaries.  Somebody must have had a copy of the English version (1761, 1765) or the American version, published in Philadelphia in 1771-1772, which had been an immediate best seller.  Blackstone's chapter "Of injuries to private property," in Book 3, Chapter 9 of the Commentaries, gets to the subject of unlawful takings on the first page.  The remedy for such takings, according to Blackstone, should include " restitution of goods wrongfully taken, with damages for the loss sustained by such unjust invasion." 
Of course the report from Slade doesn't tell if this is a claim based on failure to pay for the horse, in contract, or a bailment gone wrong, but the court was justified in applying the facts to the common law on February 19, 1779.  Four days earlier, the legislature had enacted Vermont's first law on fraudulent conveyances.  Today this law would not apply retroactively to Griffin's claim, nor was it used by the court.  Better for Galusha that the act did not apply, as the remedy prescribed by that act included one year's value of the profit to be gained by that chattel, the white horse, in addition to costs and the animal's return.
The horse went home.  The court went on to other business.  The SCOV had begun.

One further word needs to be added on the name.  The Constitution called it the "supreme court," but in the first act relating to the judiciary, and in first election, it was called the "superiour court."  This has led some writers to conclude that the SCOV was not actually created until 1782, when the act "defining and limiting the powers of the several courts within this state" used "supreme court."  That's a mistake.  The reason "superior" was chosen was because the General Assembly was relying on a book of law from the 1769 Acts and Laws of Connecticut as a template for their first acts.  The copy was likely one borrowed from Thomas Chittenden, who had served in the legislature in Connecticut, from Salisbury, from 1764 to 1773.  The Connecticut statute creating the "Superior Court of Judicature" is largely identical to the February 13, 1779 Vermont statute.  It took a few years before the legislature realized that the name chosen by the drafters of the Constitution (itself copied from the Pennsylvania Constitution of 1776) should be used for Vermont's highest court.

Editor's Note:  Below are copies provided of the original decision provided by the author.