ETHAN ALLEN EMERGED as the primary active leader of the Green Mountain settlements because of a precedent-setting case against impecunious New England pioneers who, after years of cultivating the wilderness, suddenly faced eviction by New York. For more than six months, in which he attended emergency meetings and traveled through three colonies on horseback for hundreds of miles, Allen pushed on, first through snows, then over the flooded roads of New England’s fifth season, mud season, and, finally, stifling summer heat, rushing to prepare for the legal defense of nine Bennington-area farmers facing immediate eviction and consequent poverty.
Allen carried certified copies of the charters of the New Hampshire townships granted by the late Governor Benning Wentworth and attested by his nephew Governor John Wentworth, along with copies of the titles to the individual farms. That Jared Ingersoll, Connecticut’s most distinguished lawyer and recently appointed Admiralty judge, had agreed to take on the landmark case enormously reassured Allen and the proprietors of the New Hampshire grants. Allen was now certain that they could block the evictions and thwart New York’s determined campaign to seize and resell some two million acres of Vermont land.
Colonial New York’s highest court rotated on a circuit through the counties of the sprawling province. Its justices assembled for Albany County court days only for the last two days of June each year. Allen, Ingersoll, and Bennington’s local counsel, Peter Silvester, met with their farmer clients, apprehensive and weary after the sixty-mile ride over the mountains from Bennington. After huddling briefly, they headed for the massive old three-story courthouse just as the bell in its cupola clanged the announcement that the supreme court would be in session in thirty minutes. They passed the gallows, the stocks, the whipping post and the outsized, outdoor iron cage—all of which seemed to Allen the visible symbols of English oppression. He and his companions joined the onrush of plaintiffs and defendants, lawyers, witnesses, and busybodies as they surged into the courtroom, quickly filling up its benches. The overflow crowd pressed up against the wooden bar that separated the justices from the scores of the accused, their lawyers, if they could afford them, and the plaintiffs trying to find swift justice from the full-wigged jurists filing into the packed chamber.
The justices could expect to decide within their two-day session cases involving treason, murder, theft, libel, trespass, and assault and battery, as well as cases specific to life in the American colonies. Among these were assessments of estates, arbitration, customs violations, indentures of servants, leases of tenant farmers, piracy, Sabbath-breaking, freedom of worship, salary disputes, and slavery—both Indian and African American—and disputed land patents such as the nine cases of ejectment carefully chosen to break the impasse over land grants between New York and New Hampshire. In at least some of these cases, especially the land grant cases that brought Allen to Albany, the supreme court justices undeniably had gross conflicts of interest.
Presiding over the court that day was Justice Robert L. Livingston, owner of the 166,000-acre Livingston Manor, which stretched for twenty miles along the eastern bank of the Hudson River and employed 285 families of first-generation immigrant Scottish tenant farmers. Livingston numbered among his cousins many of the wealthy and powerful land barons of the Hudson Valley, including the Schuylers, Van Rensselaers, and Van Cortlands, who, among them, held more than four million acres of prime farmland in New York and New Jersey that fed not only New York City but sent exports all over the Atlantic world. The youngest member of the panel of judges at twenty-four, Livingston stood to inherit even more land, including Clermont, a vast, tenanted Hudson Valley estate, the 500,000-acre Hardenburgh patent in the Catskills, and the extensive Beekman and Stevens landholdings, roughly 250,000 acres in Dutchess County. In acreage, he was a millionaire. Allen and his companions could hardly expect to find sympathy from him.
Also sitting in judgment that day was Chief Justice William Smith, an influential member of the colony’s executive council and a member of the powerful Livingston coterie. Smith, a graduate of Yale and a cofounder of what became Princeton and Columbia Universities, was a second-generation land speculator who had inherited vast acreage overlapping the New York–New England borders, including partnership in a 30,000-acre tract in the Green Mountains. He could scarcely be counted on to be disinterested. The king’s counsel who was prosecuting the case for the province that day was the very man who had carefully selected the nine farmers for ejectment. James Duane, whose wealth was discussed earlier, ranked as one of New York’s leading speculators in Vermont land and a partner in the Princetowne patent that overlapped the land at issue in the first case, Small v. Carpenter. Duane was relying on personal observations and interviews he had conducted in 1765 during his tour of southwestern Vermont with Major Rutherford. After inheriting at age fourteen about 1,500 acres of land in Schenectady County from his father, Duane accumulated equal amounts from two brothers when they died and then purchased another 1,500 acres of the Mohawk Valley from a third brother, adding hundreds of acres in the region from other speculators. Duane had earned the nickname Swivel Eye for his shifty sidewise glances. He was, Allen and his compatriots knew, one of the most hated and feared lawyers in New York. In 1765, on a visit to Bennington with Major Rutherford, he had taken detailed notes on the area’s real estate and tenants. By then, he had already begun to recruit tenant farmers from surrounding colonies for his projected township-sized tract, self-referentially named Duanesburg, in the Winooski Valley of Vermont. Spurred on by the Board of Trade’s 1764 decision that the Vermont territory should come under the jurisdiction of New York, Duane had purchased 64,000 acres of the disputed lands, assuming that his purchase would be protected by fellow officials in New York and in London. He was already a leader in reorganizing the New Hampshire Grants into New York counties so that sheriffs, courts, and justices of the peace could be appointed to enforce his rights in these speculations. The backgrounds of the judges more than suggest that the judicial process in the colonies was essentially fixed, and that the landed classes had installed not merely their brethren but actual members of their class to create a judicial system that came to reflect more England than the United States that was to be.
Even more compromised, if possible, in the case was Attorney General John Tabor Kempe, a notably successful British place-man. Kempe’s father had arrived in America as a tallow chandler, but by age thirty-five, Kempe had risen to become the province’s advocate general and, growing rich by inside trading of land patents, had by 1769 become the fourth-wealthiest man in New York. His lands were worth an estimated £65,650 (about $13 million today). The secret for amassing such a fortune in only fifteen years was Kempe’s privileged access to timely information about government decisions on land acquisition. He had acquired 168,000 acres, some 134,000 acres of it for nominal considerations as well as 36,000 acres by marriage, something to which Duane, too, was not a stranger. Allen, on the other hand, had a wife who brought with her no dowry and could expect to inherit a share in her father’s house and mill only if all her brothers died childless. Kempe was, as Allen knew by now, a partner with James Duane in the sprawling Princetowne patent, the grant that included the farms of at least two of the defendants.
Each of the New York jurists, Crown lawyers, and barristers was “well-versed in how to dress in a manner” expected from one in his station. The judges wore long, full-curled wigs and sumptuous robes. The prescribed “robes and bands” filing into court were part of a ritual calculated to “advance the dignity, authority, solemnity and decorum of the Court.” The two king’s counsels, James Duane and James Tabor Kempe, “appeared in bar gowns and bands” similar to those worn in London at Westminster.1 Their finery had its impact on Allen. He himself was always fond of dressing well by frontier standards but, amid the splendor of the New York lawyers and judges around him, he instantly felt at a disadvantage.
To add to his discomfiture, the plaintiff in the case, Major John Small, a retired veteran of the Forty-second Regiment of Foot, appeared in his brilliant scarlet British officer’s uniform. New York’s government had given Small 3,000 acres in Shaftsbury, the New Hampshire–granted township just northwest of Bennington, some of it already being farmed by one of the defendants, Isaiah Carpenter, who appeared in plain garb. Seeing Ingersoll at the side of Allen may have momentarily bolstered Carpenter’s confidence, but it did little to thwart the well-planned prosecution by Major Small’s lawyer, James Duane. Like all of the other New York officials actively involved in the case, Duane had another conflict of interest. It was Duane who, as lawyer for a family of log rustlers, the Deans, had triggered the ejectment suits. After Surveyor of the King’s Woods John Wentworth caught the Deans rustling logs at Windsor the winter before, Duane, their lawyer, had persuaded other New York officials to refuse to prosecute them. He contended that the offending trees were cut on the west side of the Connecticut River and therefore had been felled in New York, where, he argued, Governor Wentworth of New Hampshire had no jurisdiction. As with many of Duane’s pleadings, it was a half-truth. Even if Windsor was in an area that London had proclaimed in 1764 came under New York jurisdiction, Wentworth had been acting as the surveyor general of the king’s woods in America, all of North America. To cut down trees marked for Royal Navy ships was still a crime. That settlers on the Vermont grants had attacked the New York sheriff’s posse seizing the Deans had not eased the jurisdictional dispute between the two governments. As the Deans’ lawyer, Duane had prevailed, and the Deans were freed after paying Duane’s hefty legal fees.
ETHAN ALLEN PROBABLY should have known by this time how grimly determined the landlord judges of New York had become. At least he should have known why. For nearly twenty years, chronic riots and disturbances had broken out on the tenanted manors of the Hudson Valley. Rebellious tenants, encouraged by the arrival of freeholding farmers on the neighboring New Hampshire Grants, were demanding more favorable leases and beginning to challenge the validity of the great manorial patents. For nearly two decades, intermittent outbreaks of violence had threatened Presiding Judge Livingston’s wealthy and powerful family with financial loss, dishonor, and mob rule. By the late 1760s, the situation was so severe that the Lord of Livingston Manor dreaded losing the family estates.
Livingston’s troubles had begun in 1751 when a band of New England settlers arrived at the easternmost corner of Livingston Manor. Backed by the General Court of Massachusetts, these settlers sought to establish Massachusetts’ jurisdiction over a twenty-mile-wide swath of the borderlands between New York and Massachusetts. Some of Livingston’s tenants welcomed the newcomers; they refused to pay their rents and, in fact, actually helped the New Englanders lay out their farms. In all, the new arrivals asserted claims to 26,000 acres of Livingston Manor for the Bay Colony. When Livingston had the Massachusetts leader arrested as a trespasser and ordered loyal tenants to pull down his house, the Massachusetts settlers, joined by Livingston’s more rebellious tenants, marched to Livingston’s iron forge, seized the workers, and cut down two thousand trees in a nearby forest. In turn, Livingston retaliated by ordering the fences and crops of the leading rioters destroyed. Finally, New York’s royal governor arrested several rebel leaders. It was as if an undeclared war was breaking out between the wealthy landlords and the landless farmworkers.
Four years later, the blood feud had hardly abated. As the French and Indian War distracted the colonial governments, riots flared anew on manors all along the Hudson in 1755 at the very time British armies were reeling after Braddock’s defeat on the Monongahela. The Albany County sheriff, attempting to disperse rioters, was taken a prisoner to Sheffield, Massachusetts. Livingston and his kinsmen mobilized loyal tenants and captured and jailed the rebel leaders, killing one tenant as he fled. Once again, insurgents attacked Livingston’s iron forge and seized his workers. Tenants next challenged Livingston’s right to own his land. Buying up rival deeds from Stockbridge Indians in Massachusetts who claimed the land had been stolen from them, the tenants produced the Indian deeds in the Albany court. Livingston retaliated, commencing eviction proceedings. In a crisis portending both the resistance of the Green Mountain Boys and the civil war between Loyalists and Patriots in the Revolution, when legal remedies failed, Livingston armed his loyal tenants, who routed the Massachusetts settlers. Lieutenant Governor Colden, who always favored the landlord, called for the arrest of the Massachusetts intruders in 1762, and they finally withdrew from Livingston Manor.
Peace lasted but a few years. In 1765, in the wake of the Stamp Act riots in New York City, tenant protests broke out yet again on Hudson Valley manors. In what became known as the Great Rebellion of 1766, Parliament’s repeal of the Stamp Act encouraged riots all along the Hudson River. Finally realizing they could never own the land they worked on, tenants demanded better leases. Governor Moore dispatched British regulars from New York City. In June of 1766, as Ethan Allen watched events from his iron forge just across the border in Salisbury, two hundred New York tenants, vowing to murder Livingston and tear down his manor house, battled armed Livingston loyalists until the royal governor again sent in Redcoats and captured the tenants’ leaders. One of the British officers sent from New York City, the Swiss-born captain John Montresor, reported back to Governor Moore that hundreds of Livingston Manor tenants had stormed Livingston’s mansion, demanding better conditions from the great landlord.
These memories remained fresh a few years later when Ethan Allen and his Green Mountain neighbors appeared before Judge Livingston, who, more than anyone in court that day, had reason to loathe quarrelsome intruders from New England. Nothing about him reassured the defendants as he looked down from the bench, declared the circuit court proceedings of June 1770 open, and called the first case: ejectment suits against Allen’s neighbors.
AS ALLEN, THE VERMONTERS, and their lawyers came to the front of the packed courtroom and faced the supreme court, its provincial government had other options than evicting respectable farmers from the New Hampshire Grants. Probably the most honorable way would have been to validate all titles already granted by Benning Wentworth, royal governor of another British province. Of course, New York claimants probably would have construed this as capitulating to squatters and giving in to the threat of the mob. Furthermore, in the eyes of New York’s royal establishment, to acknowledge any right of New Hampshire to grant the land in the first place would mean the forfeiture of some three million acres of the land and the loss of a fortune in fees that could be collected by New York’s royal governor, attorney general, and assorted self-aggrandizing officials who expected to pocket a share of those fees. In several stints as acting governor, the accipitrine Cadwallader Colden had accumulated a fortune by demanding confirmatory grants for lands previously chartered by New Hampshire. But he would also have to collect fees from New Hampshire’s governor, John Wentworth, as well as from his own uncle and from New York Supreme Court Justices Livingston and Smith, who had purchased New Hampshire grants. Nonetheless, to obviate these embarrassing and expensive possibilities, a noble gesture from New York might have paid handsomely by winning the support of the New Hampshire landowners, especially those on the New York border. New York could have extended its jurisdiction over three million virtually uninhabited acres. An even more elegant solution—and there is evidence that Governor Colden and his council, which included Justice Smith, considered it—was simply to validate the titles of lands already settled by the time the Crown had issued the royal proclamation of 1767 with which the English secretary of state, Lord Dartmouth, had forbidden the late Governor Moore to disturb farmers already on the Grants. That would still leave millions of unoccupied acres for New York to grant. But then Acting Governor Colden insisted that the royal order applied only to the late Governor Moore, the person to whom it was mailed, and that therefore the Crown’s order did not apply to successive governors. From New York’s angle, such a gesture could have divided and probably silenced their opponents on the Grants. It would have distinguished hardworking resident farmers from nonresident absentee speculators who were already flouting the English government’s requirement that they personally settle and develop the land. The absentee owners, such as the Connecticut speculators who were paying the Bennington farmers’ legal fees that day in court, would have been powerless to resist New York’s authority. Such a move could have obviated twenty more years of discord.
The third alternative was force. The settlers were still few and lived, for the most part, far apart. In 1765, only seven hundred settlers inhabited the ceded French territory; by 1770, probably no more than three times that number. Few could even afford enough gunpowder and lead to fight back. Settlers sometimes had to hunt for their food with bow and arrow. They could hardly have held out before a concerted sweep of a determined military force such as had driven Massachusetts squatters from Hudson Valley lands only a few years earlier. A thousand armed men with one or two cannon could have cleared the New Hampshire Grants for regranting to New Yorkers. Years of bitter rivalry could have been averted had New York’s officials acted decisively and been driven by anything more farsighted than personal greed. In any of these three scenarios, there probably would have been no state of Vermont today—just four more beautiful, mountainous counties of New York.
THE TWIN ARCHITECTS of New York’s eviction strategy were Attorney General John Tabor Kempe and the plaintiffs’ attorney James Duane, both major stakeholders in the disputed lands. Duane, in addition to being the claimants’ lawyer, as king’s counsel, personally chose the test cases to be prosecuted. The first case called for trial was against James Breakenridge, whose farm lay along Bennington’s western boundary, where Albany’s surveyors and land commissioners had been faced down by armed neighbors. Breakenridge had the weakest case, his land having been included in a New York patent issued in 1739, fully a decade before Benning Wentworth sold the land to Samuel Robinson, who had passed it on to his son, Moses, who, in turn, had sold it to Breakenridge. Worse, the farm straddled the line twenty miles east of the Hudson River that Wentworth claimed as the western boundary of the New Hampshire Grants.
In this first case, New York could not possibly lose. New York Province’s title to the land antedated New Hampshire’s, even if it conflicted with Wentworth’s Bennington grant. Duane would later declare that Jared Ingersoll had warned Breakenridge that he had no defense, but the farmer, carried aloft by his anger and determination, had insisted on coming to court and making no admission. This caught Duane off guard. Because Duane believed there was no need for documents in such an open-and-shut case and brought no formal proof of title with him, Breakenridge won a temporary victory. The plaintiff, Major Small, temporarily withdrew the suit of ejectment against Breakenridge, though later, at a jury trial, it went against him.
Ethan Allen and his lawyers and neighbors had little time for elation. With the Breakenridge case set aside temporarily, the first case to go to trial on June 28, 1770, was Small v. Carpenter. Here, plaintiff Small, suing Isaiah Carpenter of Shaftsbury, represented the favored and popular policy of New York to make substantial grants of land to former British officers, thus encouraging veterans of lower rank to buy land from him and settle on it. Major Small had received a military grant in October of 1765. As the trial opened, Duane produced Small’s title. The major testified that his patent from New York provided that two hundred acres be reserved for each settler already on the land who could produce a New Hampshire title, on condition that he pay the usual New York annual quitrents of four shillings six pence per hundred acres. Major Small said he had offered this arrangement to Carpenter but that Carpenter had refused to comply with New York’s terms.
Then Jared Ingersoll rose to defend Carpenter. He offered as proof of Carpenter’s clear title the two documents that Ethan Allen had ridden to Portsmouth to procure personally from Governor John Wentworth, a certified copy of the New Hampshire charter for Shaftsbury Township and a copy of Governor Wentworth’s instructions relating to land grants. The courtroom fell silent as Crown lawyers and New York judges paused to confer. At that moment, King’s Counsel Duane objected. The court could not admit the New Hampshire title into evidence, he argued, because the disputed region had been within the boundaries of New York since its royal charter in 1664. Consequently, Duane asserted, all New Hampshire grants, issued at the earliest some eighty years later, were null and void and inadmissible. Taking a few more moments to pore over the 1664 charter, the supreme court justices ruled in favor of Duane’s stricture. At the same time, at Duane’s insistence, the justices refused to examine the documents that Ingersoll proffered. They ruled that, since no proper evidence had been offered to show that New Hampshire had ever included the land in dispute, Benning Wentworth never had any authority to grant it. Their verdict went in favor of Major Small. With the bang of a gavel that shocked the crowded courtroom, the court ordered Carpenter evicted.
Six more suits were still pending. Duane himself had acquired two thousand acres in 1765 from a military grant made to a British army chaplain, the Reverend Michael Slaughter. Now Slaughter was suing to evict the New Hampshire grantee Josiah Fuller, who had been farming the land when Duane inspected it during his 1765 tour. Duane, as a partner in the Princetowne patent, was also personally bringing suits of ejectment against four other settlers. Since Duane contended that his New York titles antedated the New Hampshire titles, Ingersoll decided that it was hopeless, that there was no point in his remaining in the Albany courtroom, because he would not be allowed to offer the New Hampshire documentation into evidence in any of these six cases. Gathering up his papers, Ingersoll declared the case “already prejudiced” and stalked from the courtroom with Allen.
In his 1779 book, A Vindication of the Opposition of the Inhabitants of Vermont to the Government of New-York, Allen still remembered the anger and humiliation he had felt as he left the Albany courtroom that day:
The plaintiffs appearing in great state and magnificence,…together with their junto of land thieves, made a brilliant appearance; but the defendants appearing in but ordinary fashion, having been greatly fatigued by hard labour wrought on the disputed premises,…made a very disproportionable figure at court…. In fine, interest, connection and grandeur…easily turned the scale against the honest defendants….2
Ethan Allen left the courtroom acutely aware that the Bennington farmers’ only legal remedy had been exhausted. Under New York law, a case could not be appealed to London unless the value of the disputed property exceeded £500, as if the verdict in London would have been any different. Cleverly, King’s Counsel Duane had broken up the prosecution into nine separate suits, each falling below this limit, thus cutting off any chance for legal redress in a higher court in England.
IF THE NEW YORK Supreme Court justices acted out of self-interest, they were legally on firm ground. Despite the perception of the angry settlers on the Grants, Benning Wentworth had fleeced them. He’d had no right to sell the land in the first place. That the New England homesteaders had no legal recourse after subsequent New York jury trials upheld their evictions is another matter. Had the Vermonters been able to appeal to the king’s Privy Council in London, it would doubtless have come out that King’s Counsel Duane had deliberately colluded with Attorney General Kempe, who also stood to benefit from the evictions, by breaking up the eviction suits so that there could be no appeal. Many years would pass before the smoldering feud between territorial neighbors New York and Vermont could be settled. For the next two decades, Duane and Allen personally did more than anyone else to keep the quarrel alive.
For the time being, New York had been declared the legal winner. Benning Wentworth had obviously enriched himself by illegally granting three million acres outside New Hampshire’s jurisdiction. But in the tense summer of 1770, where did that leave the thousands of New England investors and farmers who had paid what little cash they had for the right to transplant their hard lives onto the New England backcountry frontier? That is what Allen wanted to know. What was he to tell the small-town merchants and farmers who had passed around their collective hat and financed the legal defense and his travels? Now they seemed to have no recourse except to pay the steep confirmatory fees and quitrents demanded by New York or forfeit their investments. And what about the hundreds of farm families with no cash to pay these fees and, after certain eviction, would have no money to buy land and start over yet again? All that Allen could muster that night was the hope, the threadbare possibility, that New Hampshire Governor John Wentworth had more influence at the royal court in London than did New York’s self-interested officials.
Before Allen could apprise Bennington of the outcome of the hearing, a confrontation occurred that launched his reputation as the honest Green Mountain Boy refusing the blandishments of corrupt New York officials. The story was already a Vermont legend by the time the Harvard historian Jared Sparks in 1834 profiled Allen in his Library of American Biography: “It is recorded, that after Allen retired from the court at Albany, two or three gentlemen interested in the New York grants called upon him, one of whom was the King’s attorney-general for the colony, and advised him to go home and persuade his friends of the Green Mountains to make the best terms they could with their new landlords, intimating that their cause was now desperate.” Relying on Sparks, the biographer Henry W. DePuy, writing in 1855, added that Allen had “coolly” responded to the bribe offer. In 1858, the New York City journalist Benson J. Lossing, after interviewing descendants of the revolutionaries in New York and Vermont, in Harper’s New Monthly Magazine characterized the Albany hearing as “a solemn farce,” adding, “Allen was exceedingly indignant, and it was with great difficulty that he could treat Attorney-General Kemp [sic] courteously when that officer called upon him the next morning. Kemp tried to flatter the sturdy pioneer, and then advised him to go home and persuade his Green Mountain friends to make the best terms they could with their new landlords…. The suggestion thoroughly aroused the sleeping lion of Allen’s nature.”3 As brother Ira wrote in his 1798 History of the State of Vermont, Kempe explained that Allen would also be doing himself a favor because Duane and Kempe and their New York friends were prepared to give him a great tract of land within one of their New York patents in the Green Mountains as well as cash. In fact, they would give him the cash now as well as a good horse to carry him back to Bennington. He could keep the horse because he would need it to report the squatters’ reaction back to them. The three men probably expected Allen to agree. They had studied him in court as much as he was measuring them. They saw him—handsome, virile, and unquestionably smart—as potentially one of their own, someone who might turn if they proffered enough lucre.
There is no record of what Allen was thinking, no impartial witness to what exactly they said to each other. In his journal, Duane recorded that he had “paid Ethan Allen for going among the people to quiet them.” According to one version put forth by Allen, he wanted to keep Duane and Kempe off guard and guessing. Furthermore, he accepted the money and the horse because he had come by boat and had expended all the cash his backers had given him. At another time, he insisted he had protested that the offer was an outrage and had loudly declared his unwavering belief in the righteousness of Vermont’s cause, only to be met by Attorney General Kempe’s cool gaze and his rejoinder “We have might on our side, and you know that might often prevails against right.” But in Allen’s most famously repeated rendition, that morning in the tavern, he unambiguously retorted, “The gods of the valleys are not Gods of the hills.” It was entirely in his character and experience to resort to a favorite rhetorical weapon, a line from the Old Testament, this time 1 Kings 20:28, sure that the two New York lawyers trying to bribe and buy him would not understand the implicit threat in the Bible passage. In this biblical analogy, New York had become Syria of old, underestimating the Vermonters. Allen’s Bible-steeped generation, so more truly pious than the New Yorkers and in so many ways reflecting the honor and principles of any self-respecting leader, knew that a small number of Israelites had slaughtered one hundred thousand Syrians in a long and bloody battle. Allen may have had a good laugh later to remember that Kempe asked him what he meant. It was clear Kempe did not know the Book of Kings, even if he made his living interpreting the king’s law books in his own favor. “If he would accompany him to Bennington,” Allen said he had replied, “the phrase should be explained.” Had Duane and Kempe taken Allen up on his offer, they would have seen that in the five years since Duane had last visited Vermont, a close-packed settlement of determined, armed, and experienced hunter-farmers like himself had spread over the valley. Instead, Duane and Kempe bought Allen a drink and pressed some money for the horse’s feed and some travel money on him. Ethan Allen never disclosed how much it was. He certainly never gave it back.4
THE TOWN OF BENNINGTON, by the early 1770s, was divided into two poles: the Congregational meetinghouse to the south end of a broad street and, only a block away, Landlord Fay’s tavern, more commonly known as the Catamount Tavern, because of a stuffed mountain lion atop a twenty-five-foot pillar that bared its teeth toward New York. Galloping into town from the eviction trial in Albany, Ethan Allen went before one hundred anxious townsmen who had crowded into the tavern to hear the news and decide what step to take next to protect their properties from the sheriff’s posses now threatening to come and clear them off the disputed lands. The Reverend Jedediah Dewey, the town’s Puritan minister, presided over the meeting in the tavern, the town’s largest gathering place.
A head taller than most men, self-confident and persuasive, Allen at thirty-three appeared the obvious leader for the farmers who had lost patience with the timorous, passive petitioning of Bennington’s town fathers. Even if he felt constrained to defer publicly to them, he argued that New York’s officials might have once exercised legal jurisdiction over the Grants but now no longer did. Even if the 1764 order in council had brought the Grants under New York law, the 1767 order in council made it clear that, while New Hampshire could issue no new charters, neither could New York. It further decreed that New York was not to molest settlers already on the grants they had purchased from New Hampshire or from the original proprietors of the New Hampshire Grants. New York, Allen insisted, had to respect preexisting land titles and locally established political entities. New York had already defied the Crown’s 1767 order by making illegal grants of already settled areas. Its officials were ignoring the Crown’s intent and menacing settlers who had purchased their land legally and improved it in good faith. The arrogance of New York’s landgrabbers would anger officials in London. As a consequence, Allen asserted, the king would decide to give New Hampshire final jurisdiction over the Grants. “He [the king],” he argued, “may cede the disputed lands back again to the province of New Hampshire or erect it into a new province.” But not even the king could tamper with these property rights. Under English common law, only the owner could alienate his own property. The fight was over who owned the land. They had to be prepared to fight for the land they owned.5
Still smarting from the high-handed treatment he and the defense team of lawyers had received in the Albany courtroom, Allen told the stunned townspeople of Bennington what they were expecting to hear: that New York was hell-bent on evicting them. He told the crowd how the court had not even allowed him to enter into evidence the proof of the legitimacy of their cause, the documents he had procured at such effort and expense from New Hampshire. He told them everything, including the bribe offer by Duane and Kempe—Kempe, the attorney general of New York; Duane, the king’s counsel—his honesty and rectitude no doubt gaining even more respect from the Vermonters. Allen pointed to the use of force to enforce writs of possession, to take away their homes and land. “Justice without mercy,” his words dripped irony, had been the watchwords of a royal court without possibility of appeal, all carefully arranged by the king’s swivel-eyed counsel. Allen, eager to act, confronted the lassitude of cowed older members of Bennington’s establishment. To his surprise, the Reverend Dewey joined him in advocating resistance, his reaction contrasting sharply to the scorn the clergyman had shown Allen on earlier occasions. Forced evictions must be met by resistance in force. The townsmen of Bennington, some solemn, some cheering, voted to protect, especially, the farms of the town’s evicted leaders, James Breakenridge and Josiah Fuller. To appease the timid, Allen agreed that they must continue their resistance only until they heard the Crown’s final decision on the late Samuel Robinson’s 1767 petition to confirm their New Hampshire grants. But there was no disguising the excitement that began to spread over the green hills of the Grants that day. Allen’s scathing report produced the first organized resistance to New York’s authority on the New Hampshire Grants. His speech triggered a new spirit of resistance, of confidence that the men of the Green Mountains could hold out against New York’s tyranny while the New Hampshire governor they trusted prevailed in their appeals to London. Allen took the horse given him by Duane and Kempe back to them in Albany, where the two officials anxiously awaited his report of the town’s reaction to his supposed blandishments. He told them only that “everything would soon be adjusted.” Then he left. It would prove to be a seminal moment, a strong intimation of what lay ahead in just a few years.6
THE SETTLERS OF BENNINGTON did not have to wait long for an answer. On September 26, 1770, New York commissioners and surveyors again appeared in Breakenridge’s cornfield, escorted by the Albany County sheriff and three hundred men. This time, a band of armed townsmen drove them off. But this confrontation merely made Breakenridge more apprehensive. The winners in the eviction suit had sent the surveying party to Bennington. Still believing the king would intervene to protect his grant, Breakenridge insisted on sending off yet another petition to London. He declared his dismay that the New York court had refused to consider “the least evidence we were able to produce in favor of our paid grants from New Hampshire.” If the king did not act soon, many honest settlers would be cast off their farms “with our families into ye open wilderness.” Off went the latest plea to Portsmouth for Governor Wentworth to forward to London. But Wentworth never sent it on to London: he yielded to his overriding impulse to make more money than he could foresee coming from the cash-strapped Vermonters.7
What Allen and his neighbors could not know was that the Grants settlers’ and the absentee proprietors’ last hope for help from political patronage or from any government institution or official had vanished. A year and a half before the Albany evictions trials and only a year before Allen visited him in Portsmouth, Governor John Wentworth had received a letter from a friend, Colonel William Bayard of New York, inquiring about buying a New Hampshire grant. Proving more venal than his father, Wentworth urged Bayard to make the speculation and asked him whether he could buy a 350-acre right in it. About the same time, making a tour of inspection as surveyor of the king’s woods, Wentworth visited the new town of Windsor on the west bank of the Connecticut River. There he met major landowners in the area who held New Hampshire patents. One month later, a new town, Windsor, became incorporated after Wentworth granted the patent Bayard had requested. The New Hampshire governor not only sanctioned the first overt act against New York authority east of the Green Mountains but owned a piece of the patent. At the same time, the duplicitous Wentworth and his New Hampshire council began to bring pressure to bear on settlers in the lower Connecticut Valley to petition the Crown to transfer jurisdiction over the Grants from New York to New Hampshire. The petition, no doubt prepared in Portsmouth with Governor Wentworth’s backing, circulated in several towns along the disputed west bank of the Connecticut River. New York officials never saw the original document, which contained the signatures of two hundred settlers. Off it went from Portsmouth to London. Wentworth successfully created the impression that the petition had been sent to him by the Grants settlers merely for his transmittal to the king.
Shortly after the Albany eviction trials in June of 1770, a major New York City land speculator, Crean Brush, who owned extensive New York–granted lands in the lower Connecticut Valley, circulated a counterpetition to the king in favor of continued New York jurisdiction over the disputed Grants. The exquisitely printed petition, dated November 1, 1770, bore 425 signatures. Many may have been fraudulent. Brush sent the petition to the new governor of New York, John Murray, fourth Earl of Dunmore, knowing that he had powerful connections at the English court, at least as influential as Wentworth’s. Murray was a nobleman descended from the Stuarts and one of sixteen Scottish peers in Parliament. In this latest spin of the revolving door of England’s adolescent colonial establishment, Lord Dunmore would remain in New York only for eleven months before being packed off to become the royal governor of Virginia, a much more lucrative post. In that short time, Dunmore was extremely busy regranting some 403,000 acres in Vermont, including one patent for 48,000 acres in Rutland and Pittsford to King’s Counsel James Duane and his partners. On his last day in office, Dunmore granted Duane 51,000 acres in the Middlebury area. In forwarding the pro–New York petition to Lord Hillsborough at the Board of Trade in London, Lord Dunmore in his covering letter accused “persons in power” in New Hampshire of fomenting all the unrest on the frontier.8
At about that time, Governor Wentworth suddenly lost interest in working behind the scenes to seek confirmation of the New Hampshire Grants directly from the Crown. That autumn of 1770, his uncle Benning Wentworth died. Childless, grossly obese, and infirm, Benning Wentworth had belatedly married his nubile young housekeeper, Martha Hilton. When the Wentworth family shunned the new Mrs. Wentworth, the old ex-governor changed his will. He cut off his favorite nephew, the young governor, his reputed heir, leaving his entire fortune, including his fifty-two-room mansion, to his young bride. Suddenly desperate for cash, the young and now much less wealthy Governor Wentworth won the assent of his council to revoke the New Hampshire charters of all of the undeveloped land east of the Connecticut River that he had granted to himself so that he could regrant it and collect the customary fees. That reversal led Wentworth to worry about all the undeveloped lands, the 500-acres out of each of 178 townships, that his uncle had granted to himself in Vermont and that now would pass to his uncle’s widow—and come under New York’s jurisdiction.
On December 14, 1771, John Wentworth wrote to the latest New York governor, Sir William Tryon, who succeeded Lord Dunmore. In fact, legally all of Wentworth’s uncle’s self-granted but still unsettled, unoccupied lands were now only “reservations” that reverted to the Crown for the succeeding royal governor to grant anew. Apparently confused on this fine point of law, Wentworth now was supplicating Tryon for all “the lots in like circumstances that have fallen into” New York. They “are ungranted,” he insisted. Here, he was abandoning any New Hampshire claim to his uncle’s lands. “I should be happy in soliciting a grant thereof,” Wentworth told the New York governor. If he received this huge grant, Wentworth said, he would “rejoice to cultivate and establish with the greatest attention” Tryon’s “favor.” In New York, land-rich royal officials had reason to rejoice, too. In this secret letter to New York’s governor, New Hampshire Governor Wentworth made it clear that, if he received the grant from New York, he would no longer work behind the scenes at court to wrest the jurisdiction of the Grants away from New York.9
Other than personal gain, what may explain Wentworth’s sudden about-face was a dramatic change in British colonial policy that brought the American colonies closer to open rebellion. By the end of 1769, only New Hampshire had escaped the material effects of a successful intercolonial resistance movement that had originated next door in Boston in response to implementation of the Townshend duties. Reviving nonimportation to force Parliament once again to yield, the Boston town meeting on October 28, 1767, drew up a list of English imports, mostly luxury goods, that merchants would no longer purchase. Nonimportation agreements quickly followed in Providence and Newport. In New York City, a mass meeting on December 29 created a committee to formulate a plan to promote the domestic economy and local employment.
The strongest written elucidation of the protesters’ basis for opposing the new duties came from the wealthy Philadelphia Quaker lawyer John Dickinson, writing Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies under a pseudonym. First appearing as fourteen essays in the Pennsylvania Chronicle, the Letters, circulated widely all over the American colonies and in England in pamphlet form, conceded Parliament’s authority to regulate trade but denied its right to tax in order to raise revenue in America and declared the Townshend duties unconstitutional.
Only a month after Dickinson’s last essay broke into print in Philadelphia, in Boston Samuel Adams drew up the first Massachusetts circular letter; approved by the colony’s House of Representatives, the letter informed the assemblies of the other twelve colonies of the Massachusetts General Court’s denunciation of the Townshend Acts as violating the principle of no taxation without representation, pointing out that it was impossible for the colonies to be adequately represented in Parliament. Adams further attacked the Crown’s decision to put colonial governors’ and judges’ salaries on the civil list and thus make them unresponsive to the colonial legislatures. Soliciting proposals for continued coordinated colonial action, Adams’s circular letter drew the condemnation of Massachusetts royal governor, Francis Bernard. In London, Lord Hillsborough, the secretary of state for the colonies, denounced the circular letter and ordered royal governors to dissolve their assemblies if necessary to prevent them from endorsing it. But he was too late: the assemblies of New Hampshire, New Jersey, and Connecticut praised Massachusetts’ stand, and Virginia drafted its own circular letter, endorsing Massachusetts’ initiative and advising other colonies to follow suit. When Governor Bernard ordered the Massachusetts House to rescind the letter, the representatives voted overwhelmingly, 92–17, to defy him. Bernard dissolved the legislature and called a new election. Under heavy attack by the Sons of Liberty, seven “rescinders” lost their seats.
The general obstruction of any new British measures by Bostonians led the detested customs commissioners to request an armed force to protect them. The Royal Navy dispatched the fifty-gun frigate Romney in May of 1768. Only weeks later, customs officials learned that a wharf official had been locked in the cabin of John Hancock’s sloop Liberty while his crew whisked the cargo of Madeira wine ashore without paying duties. When customs officials ordered the sloop towed from her slip and anchored close to the Romney, a crowd attacked them on the wharf and demonstrated in front of their homes. Fleeing to Castle William in the harbor, the officials again appealed for more troops. By September 28, as British troopships sailed into Boston harbor, an impromptu provincial convention had urged the populace to arm. As the Sons of Liberty threatened armed resistance, two regiments of British infantry marched up Long Wharf and pitched their tents on the Commons, where they remained at the outbreak of the Revolution seven years later.
As nonimportation agreements proliferated in the coastal colonies, merchants from Boston to Savannah drew up lists of banned goods and, before royal governors could move quickly enough to dissolve them, colonial assemblies agreed not to deal with any merchant who refused to join the general boycott of British goods. Imports from England dropped by one-third in 1769 as the movement spread, most strikingly in New York, by 85 percent, and in Philadelphia, by 45 percent. In January 1770, Townshend resigned; in March, Parliament repealed all of the duties except a two pence in the pound duty on tea. Lord North, the new head of government, pledged that his administration would impose no new taxes on the American colonies. Only New Hampshire’s trade, consisting of an increasing demand for timber for Royal Navy ships’ masts, had remained unaffected by the boycott movement, but Governor Wentworth would emerge from the crisis no longer a friend and protector of the rights of the ordinary colonist.
ONE YEAR LATER, in the summer of 1771, Governor Wentworth and his retainers rode through his own real estate development at Wolfeboro, in the New Hampshire pine forest, on his way to Hanover to preside over the first commencement of Dartmouth College. He stopped long enough to assure prominent settlers on the Grants that he was still working very zealously to have all the lands west of the river permanently attached to New Hampshire. It would be many more months before he informed the same settlers by letter of his change of heart. And he never did tell them that he had not forwarded their petitions to the king. He sent only the pro–New York petition to London. The last chance for a rescue from New York’s jurisdiction and the evictions and seizures of farms that would surely follow had vanished. By this time, though, Ethan Allen was no longer surprised. He recognized the venal patterns of the New York oligarchy, and he anticipated their moves as he quickly advanced through the ranks of Vermonters who had decided to defend their farms by force of arms.
Instead of relief from London, what came to Bennington in the meantime was the news that, only a few weeks after he landed in New York City, Lord Dunmore, alarmed by reports that the Bennington settlers had chased off New York land commissioners, proclaimed that the surveyors had been terrorized by “a riotous and tumultuous Body of Men.” Dunmore ordered the arrest of the four men identified as ringleaders. As tensions mounted all along the New York–Vermont frontier, the Albany court indicted twelve more Vermonters for rioting against the king’s peace.10
Late in November 1770, Albany County Sheriff Henry Ten Eyck, his deputy, and New York–appointed Justice of the Peace Munro approached Bennington stealthily. Skirting the town and coming through the bare winter woods to the north, they encircled the home of one of the accused leaders, Silas Robinson, son of Bennington’s founder, seized him, and bundled him off toward Albany. Alerted by Robinson’s wife, Allen quickly rounded up forty armed men and, at their head, galloped after the New York posse. Late that night, they surrounded the farmhouse where Allen thought the New Yorkers and their prisoner were sleeping, only to learn from Munro that the prisoner and his escort had already left for Albany. Allen and his posse fired their weapons into the air and rode away. Shortly thereafter, they learned that Silas Robinson had been remanded to the Albany jail.
A few weeks later, a New York constable and his deputies galloped into Bennington. This time, they arrested Robinson’s brother Moses. As the New Yorkers and their prisoner rode toward Albany, Allen gathered an even larger party of armed settlers. Their faces blackened, they surrounded the New York posse and, at gunpoint, rescued Robinson. Back in Albany, the constable reported that when he had warned Allen that he and his men were violating New York law, Allen shot back that “they damned the Laws of New York, and said they had better Laws of their own.” Then, the constable reported, Allen and his followers chased him and his men all the way back to the New York boundary line.11
The tension rapidly escalated as the pace of face-offs quickened. Only a few days later, on the frigid morning of January 5, 1771, Sheriff Ten Eyck tried to serve writs of possession on Breakenridge and Fuller. The writs of ejectment, resulting from Duane’s successful manipulation of the Albany court, meant that Ten Eyck now had the power to evict the Vermont farmers as squatters. But when Ten Eyck arrived at Breakenridge’s farm, as he later reported in a sworn affidavit, he encountered a large number of armed men. Their leader was Ethan Allen, who warned the sheriff he was ready “to blow his brains out” if he proceeded. At Josiah Fuller’s farm, the same scene played out again. Ten Eyck retreated, his warrants unserved. By that spring of 1771, guerrilla warfare seemed to predominate on the Vermont frontier. Bands of armed men were menacing the lives of any New York settlers still remaining on the Grants, threatening to tear down their fences, houses, and barns unless they left. At their head in these impromptu raids, the sheriff reported, was Allen himself, who had emerged as the undisputed leader of the Grants.12