Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2017, Vol. 48, No. 3 - Page 15

by Paul S. Gillies, Esq. RUMINATIONS The Due Process of Excommunication There are ways of enforcing the rules of a society. In public life, early on, Vermonters banished Tories and Yorkers who opposed independence and the New Hampshire ti- tles. In religious life, during the first de- cades, Vermont congregations excommu- nicated members whose behavior violated the canons of the church. This casting out was always a hard and often rough process, but there was a sensitivity to ensuring the proper steps were taken, a kind of natural due process taken to sever the ties with the community. Inimical persons could be fined and whipped, when voters ordered it at town meeting, but first an Assistant Judge or Justice of the Peace had to ap- prove the warrant. 1 Churches would ap- point committees to investigate charges of sin or opinions inconsistent with that of the faith, who would judge whether excommu- nication was appropriate, before the con- gregation could act. And sometimes there were appeals available. Government and religion were not as separate at the beginning of Vermont’s his- tory as they try to be today. Vermont was founded on protestant Christian principles. State and legislative officials had to swear that they believed in one God, the Creator and Governor of the universe, the rewarder of the good and the punisher of the wick- ed. They also swore to acknowledge that the scriptures of the old and new testa- ment were given by divine inspiration. And they had to own and profess the Protestant religion. 2 Beginning in 1781, all landown- ers were obliged to support the town’s first church, paying for the building and the sal- ary of the minister. 3 Ten years later the Legislature expanded the law by address- ing how new residents of a town would be treated. Unless they produced a certificate signed by a minister of another denomina- tion, they “would be considered as being of the religious opinion and sentiment with the major part of the society” of the town, and so liable to pay the taxes for the church and minister. 4 In 1799, the Vermont Council of Censors concluded the law was unconstitutional, a violation of Article 3, as the legislature had “assumed upon themselves, and exercised greater powers, than they are entitled to by the Constitution.” Only conscience, not law, can bind a person to support houses of public worship or ministers, the Council declared, and urged the repeal of the law. 5 The legislature ignored the Council, but af- ter the 1806 Council repeated the admoni- tion, the law was finally repealed in 1807. 6 Section 66 of the constitution requires every person who wishes to own land in Vermont to take an oath or affirmation of allegiance to the State. 7 This oath was tak- en by known Yorker sympathizers whose property had been seized after the State was organized and this alone reprieved them from the censure, converting them from enemies to friends by the taking of an oath. Pushed out, they were allowed to come back in after acknowledging their change of heart. This is the power of repen- tance, today manifested in criminal court by evidence of remorse and restitution. In the first years of the State, evange- lists converted thousands of people by passionate sermons, bringing them into the church after many tears were shed and confessions of faith brought people to their knees. Their success was remarkable, but the conversions didn’t always last. There was backsliding, which in turn led to vari- ous punishments, including excommunica- tion. 8 The first Vermont laws ordered officials to brand persons convicted of some crimes (rape, incest, adultery, homicide) with the first letter of those words, on their fore- heads. 9 The mark of excommunication was reversible. The church could readmit a n excommunicate upon proof that the per- son repudiated the sin or act that triggered the expulsion. Excommunication was a cor- rective measure, not a vindictive one. 10 This state of exclusion cost former church members friendships and business opportunities. 11 It made them infamous. In England, regulation of private morals was ecclesiastical. The payment of alimony, for instance, was enforced by excommunica- tion. 12 In New England, while incest, for- nication, adultery, were crimes, those who committed these offenses were also sub- ject to church discipline, and the conse- quences were severe. In early Massachu- setts, only church members could vote or hold public office, and could suffer impris- onment after six months if not reinstated to church membership. 13 Vermont was never that severe, but by requiring the oath of of- fice all state officials swore they would up- hold the protestant religion, amounting to a necessary qualification for public office. In the first 50 years of the Glover Congre- gational Church, 179 new members were admitted and 14 excommunicated. In Pitts- ford, by 1808 there were 204 new mem- bers and 29 who had been removed. At THE VERMONT BAR JOURNAL • FALL 2017 Pope Gregory VII excommunicating Emperor Henry IV Brandon, there were several restorations of members who were excommunicated. Pawlet’s church excommunicated most dis- senters for breaches of the covenant. 14 The Windsor Congregational Church excom- municated six in its first years, two for in- temperance, three for forsaking the church, and one for deception and falsehood. 15 Saints, popes, antipopes, bishops, priests, nuns, ministers, heretics, adulter- ers, kings, emperors, even the dead (John W