Strangers to Us All Lawyers and Poetry

The Green Bag
VOL. XX, No. 1    
                               January, 1908

Royall Tyler
Russell W. Taft

Late in the year 1790 Royall Tyler, the subject of this sketch, removed from Boston to Guilford, the next to the easterly of the southernmost tier of towns in Vermont, and bounded on the south by Massachusetts. Vermont was then, and had been for some twelve years prior thereto, operating as a strictly "non-union" commonwealth; she was not admitted to the Union until 1791. The subject of our sketch was christened William Clark Tyler, but, at the request of his mother, he had his name changed, by act of the General Court of Massachusetts, to Royall, the name borne by his father, then deceased. The latter was a man of some importance in Colonial times; he was a graduate of Harvard, held many positions of responsibility and trust, and was a member of the King's Council from 1765 until his death in 1771. Royall, his second son, was born near the site of Fancuil Hall market, in Boston, on July 18, 1757. He entered Harvard at the age of fourteen, graduating as valedictorian in 1776, and at the same time Yale College paid him the unusual compliment of conferring upon him a like degree in honorarium. Among his classmates were Christopher Gore, Governor and United States senator from Massachusetts, and Chief Justices Sewall and Thacher. He at once began the study of the law with Francis Dana of Cambridge, but his studies were interrupted by a campaign of active service in the war as aide-de-camp on the staff of General Sullivan, during the latter's Rhode Island operations in 1778.

In 1779, Tyler was admitted to the Bar and opened an office in Falmouth (now Portland) Maine, business in Boston being at a standstill by reason of British occupation. In a sketch of the early Bar of Maine it is said of him, "He was a fine scholar and an accomplished man." He returned to Boston in 1781 and resided for two years in Braintree, now Quincy, thence removing to the city, where he practised for several years.

During Shays' rebellion, in 1786-7, Tyler served as aide-de-camp on the staff of General Benjamin Lincoln, and in this capacity was sent by Governor Bowdoin of Massachusetts to Vermont, to make arrangements for the apprehension and delivery of certain of Shays' fugitive adherents who had fled to that jurisdiction. Minot's History of the Insurrection (Boston, 1810), thus touches upon the matter:

"With respect to that Government (Vermont), the Legislature had been officially informed, that on the 13th of February, (1787), General Lincoln dispatched Royall Tyler, Esq., one of his Aides-de-Camp, to request their assistance in apprehending the rebel ring-leaders: That, upon his communicating his instructions and request in writing, the subject of them was put in Committee, and a report made for requesting the Governor, (Thomas Chittenden,) to issue his proclamation, enjoining it upon their citizens not to harbor the leaders or abettors of the rebels: That this report was accepted by their lower House, and sent up to their Council, where there also appeared eight or nine assistants (councillors,) in favor of it: That it would of course have passed there, but for the Governor's objections, which were at first founded upon his not having given the subject a proper consideration, but were afterwards bottomed upon more serious principles: These were said to have been raised, from the impolicy of issuing a proclamation which might impede the emigration of subjects from other states into that; and the imprudence of opposing the sense of their people, who began to assemble in arms in a neighboring town, and who might create an insurrection, and surround the Legislature, unless the report was dismissed: There being no prospect of Mr. Tyler's effecting the object of his request, he departed, with strong apprehensions that the bulk of the people in that state were for affording protection to the rebels, and that no immediate or effectual aid would be granted."

A more illuminating light is shed upon the result of Tyler's mission by the following excerpt from a manuscript in Tyler's handwriting among the collections of the Vermont Historical Society, which seems to be a copy of his report to his superior:— "The Governor, (Thomas Chittenden,) in my presence said that whenever people were oppressed they will mob and that the people who fought the Bennington action are now under guard, giving his opinion plumply against our cause, and that it would not do for this State to have any concern with Massachusetts quarrels. In the company of last evening I heard numbers of respectable men, to appearance, requesting him not to have anything to do with those just persons who have fled into this State for shelter, and further the Governor said he did not conceive the nature of their offence to be such that ti was the duty of this State to be aiding in sending them away to the halter. General Ethan Allen in my presence said that those who hold the reins of the government Massachusetts were a pack of damned rascals, and that there was no virtue among them, and that he did not think it worth anybody's while to try to prevent them who had fled into this State for shelter from cutting down our maple trees; and the common people flocked around him as though he had a sight to show. The commonality aver that they will shelter anybody who applies to any of their houses for shelter, and it is generally said that our quarrel will be ten thousand pounds advantage to this State."

The feeling in Vermont was so intense against giving up any of the Shays' refugees that Tyler felt some fears for his own safety, as is shown by the following extract from a letter from General Lincoln to him, Mass.: — "As soon as you find your person in danger, or that your services cannot avail, pray return; you have done a great deal; we cannot command success; to deserve it has the same merit." Despite the meagre results of negotiations with the Vermont leaders, Tyler was later sent on a similar mission to New York.

In the summer of 1790 Tyler again visited Vermont. He had become acquainted with the leading men of that independent commonwealth, and saw fit to cast his fortune with them. The settled in Guilford, then the largest place in the state, the following winter, and there remained until the spring of 1801 when he removed to Brattleboro, having been previously elected by the legislature judge of the Supreme Court of the state. His ten years of practice were active, for his reputation as a lawyer and a man of learning was widespread; he soon numbered among his friends most of the able and distinguished men of his adopted state, and for many years he served as states' attorney of Windham county.

Until his election as judge, Mr. Tyler had acted with the Federalist party, and was a Federalist at the time of his election, but many of the considerations that were telling against that party seemed to him well founded, and although he could not take any active part in politics while on the Bench, his views gradually changed and he became in sentiment as Republican; so that, when in 1807 the Republicans made a "clean sweep" in the state, he was advanced to chief judge,
with Theophilus Harrington and Jonas Galusha as assistants, and continued as chief judge until 1813, when all the judges were chosen from the Federal party. During the latter part of his term of service Judge Tyler's health was very poor, and this, with party complications, prevented his re-election; he resumed active practice at the bar, which was pecuniarily more profitable than his services to the state, and served for a time as register of probate in his district, but after 1820 he gradually retired from practice. He suffered for many years from a cancer on the face, and died in Brattleboro, August 16, 1826, at the age of 69 years.

Judge Tyler's personal and judicial memorabilia are meagre enough, after the lapse of a century, and the following excerpt from a letter written by his son, Rev. Thomas P. Tyler, D.D., hints at the same difficulty in 1877:— "Fifty years have elapsed since my father's death. His contemporaries have long since passed away. The materials for biography are of course mainly letters and other manuscript, or printed, documents. It is singular, but true, that the department wherein information is mot important to be obtained, (that of the law), is just where it is most meagre and unsatisfactory. There were, as you are aware, several trials, some of which I learn from father's letters were prepared by himself for publication, but my most diligent efforts have failed to find one of them. I do find, from the letters of Senator Robinson and other of his friends, that in their judgment his charges to the juries, and other official acts in the conduct of the trials, contributed much to allay partisan feeling and bring the people back to sentiments of justice and patriotism." The Black Snake affair alluded to above grew out of the capture, at Joy's landing on the Winooski river in what is now the city of Burlington, of a smuggling boat, called the "Black Snake," which, under the embargo act of 1807, did a large smuggling business on Lake Champlain, and in the capture of which several lives were lost. The crew of the boat were tried for murder an several of them convicted, though the only one executed was Cyrus Dean, who was hung October 28, 1808, at Burlington, in the presence, it is said, of some 10,000 people. This is probably an exaggeration, the population of Burlington being but 815 in 1800.

The following estimate of Judge Tyler by a late writer seems to briefly summarize his personal and judicial qualities:—"Judge Tyler was social in disposition, with a mind well stored with information derived both from books and their prototypes, men. He was the delight of all who knew him, and was the leading spirit on those occasions when the witty, learned and wise were assembled. To high mental ability, there was joined in his character an uncommonly benevolent and friendly disposition, which gained him the love and respect of many attached friends. As a judge he was conscientious, clear minded and just, both by a natural sense of right and an extensive knowledge of precedents. His instructions to juries were often published, and were specimens of elegant composition and evidences of his great professional knowledge. His humanity, though naturally unbounded, was so guided as to produce the most beneficial results. As a citizen he was public spirited and liberal; as a neighbor, social and unobtrusive; as a husband, kind and attentive."

In 1809-10 appeared from the press of I. Riley, New York, two volumes of Reports of Cases argued and determined in the Vermont Supreme Court, and reported by Judge Tyler. The period covered was 1800-1803 and the reports are mainly of jury trials. While it is said by Wallace (The Reporters, 4th Ed. p. 589), that Tyler's reports are not considered good authority, even in his own state, this is hardly a just criticism. The cases reported were jury trials, for the most part, and contained the substance of the law as stated to the jury. While the opinions are necessarily not as complete and thorough as in well considered cases of a later date, they contain much that is valuable, and must at the time have been a great aid to the profession and to the courts as statements of what was then the law of the land.

In literature Judge Tyler made quite a little commotion, at a time when American Letters were hardly so far advanced as to justify so dignified a title. He was author of the first American play acted on a regular state by an established company of comedians, The Contrast, a comedy in five acts, said also to have been the first stage production in which the Yankee dialect and story telling, since popularized by Hackett, Hill and others, were employed. According to Duyckinck (Cyclopedia of American Literature, Vol. 1), it was first staged at the old John Street theatre, New York, under the management of Hallam and Henry, April 16, 1786. Duyckinck drew upon Dunlap's History of the American Stage for his misinformation, for Judge Tyler's son positively asserts that The Contrast was written in the winter of 1788-89, in three weeks' time, and brought out April 16, 1789, at the Park Street theatre, New York, and avers that Duyckinck, Dunlap and their followers are mistaken. It certainly could not have been produced in April, 1786, if Duyckinck is correct in his statement that the comedy was written during Tyler's military service and produced while he was in New York on his mission from the government of Massachusetts, for Shays rebellion did not break out until December, 1786, and Tyler went from his Vermont mission to New York in the late winter, or early spring, of 1787. Gilman's Vermont Bibliography lists, but makes no further of, "May Day, or New York in an Uproar, A Comedy, 1787," by Tyler, and it is possible that this play was the prior production; in that case it might have been produced in April, 1786, and at the John Street theatre. At all events, The Contrast is rather of historical than literary importance, if we are to rely on Professor Beers, who, in commenting upon it, after mentioning Godfrey's Prince of Parthia, refers tot eh one as very high tragedy, and to the other as very low comedy. In 1797 Judge Tyler wrote a comedy in three acts, which was repeatedly and successfully produced in Boston, entitled The Georgia Spec, or The Land in the Moon, which ridiculed speculation in wild Yazoo lands. In the same year appeared, in two volumes, The Algerine Captive, or The Adventures of Doctor Updike Underhill, from the press of David Carlisle, at Walpole, N.H. A second edition was printed at Hartford in 1816. This is said to have been the first American work of fiction reprinted in England, having appeared in two volumes in London, in 1802. In 1799 he wrote a Fourth of July Ode for the Independence day celebration of that year at Windsor, Vt. Mention is also made by Gilman of The Original of Evil, 1793, but we are left in the dark as to what it might have been.

Judge Tyler gained a great reputation by his fugitive contributions of verse and prose to that newspaper and miscellany, one of the best of its kind ever published, The Farmer's Weekly Museum and Lay Preachers's Gazette, printed at Walpole, N.H., by Isaiah Thomas and David Carlisle. He contributed a series of agreeable and humorous articles, purporting to be "From the Shop of Messrs. Colon & Spondee," which were quite varied in their character. French democracy, Della Criscan literature, Federal politics, and the lighter frivolities of the day being among the subjects that claimed attention. The prose paragraphs show the author's wit and general taste in literature, while the poetical efforts exhibit considerable command of versification and facility in numbers. A liberal collection of these fugitive writings is embraced in a volume published at Walpole, in 1801, by Thomas & Thomas, entitled The Spirit of the Farmer's Museum and Lay Preacher's Gazette. Judge Tyler also published a series of papers entitled An Author's Evenings in the Port Folio of 1801, and subsequently published in Philadelphia by Joseph Dennie, formerly of Walpole. In 1806 he was a contributor to Buckingham's monthly periodical, The Polyanthus, of the papers entitled Trash, and a number of poetical pieces, and again on the revival of the publication, in 1812. In 1809 he printed The Yankee in London, purporting to be a series of letters written by an American youth in London. The author never crossed the Atlantic, his descriptions of London scenes being purely imaginary. Some of judge Tyler's latest productions appeared in the New England Gallery.

The ubiquitous Duyckinck has this to say of Judge Tyler: "He was a wit, a poet, and a Chief Justice. His life certainly deserves to be narrated with more particularity than it has yet received. His writings, too, should be collected and placed in an accessible form. American literature cannot be charged with poverty while it has such valuables uninvested in its forgotten repositories." Subjoined is a specimen of Judge Tyler's briefer poetical efforts.

Love and liberty.

In briery dell or thicket brown,
On mountain high, in lowly vale,
Or where the thistle sheds its down,
And sweet-fern scents the passing gale,
There hop the birds from bush to tree;
Love fills their throats,
Love swells their notes,
Their song is love and liberty.

No parent birds their love direct;
Each seeks his fair in plumy throng,
Caught by the lustre of her neck,
Or kindred softness of her song;
They sing and bill from bush to tree;
Love fills their throats,
Love swells their notes,
Their song is love and liberty.

Some airy songster's feathered shape
O! Could my love and I assume—
The ring-dove's glossy neck he take,
And I the modest turtle's plume—
O! Then we'd sing from bush to tree;
Love fill our throats,
Love swell our notes,
Our song be love and liberty.


Burlington, Vt., December, 1907.