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The Vermont Constitution
Article 1 st of the Vermont Constitu-
tion guarantees that “all persons are born
equally free and independent, and have
certain natural, inherent, and unalienable
rights, amongst which are the enjoying and
defending life and liberty; acquiring, pos-
sessing, and protecting property, and pur-
suing and obtaining happiness and safety;
therefore no person, born in this country, or
brought from over sea, ought to be hold-
en by law, to serve any person as a servant,
slave or apprentice, after arriving at the age
of twenty-one years, unless bound by the
person’s own consent, after arriving at such
age, or bound by law for the payment of
debts, damages, fines, costs, or the like.” 70
Not all Romans were free and indepen-
dent. Some were slaves. Some were patri-
cians and some were plebians. Justinian
treated patricians and plebians equally. 71
He recognized some rights of slaves, partic-
ularly the process of becoming freedmen.
Justinian included rules on tutors (guard-
ians) and stipulations (contracts) that regu-
lated the relationship between adults, and
adults and minors, both within families and
when children (infants of minority age) were
placed in the care and employ of others.
The right to hunt and fish in seasonable
times on one’s own and other unenclosed
lands and in boatable waters is guaranteed
by Section 67 of the Vermont Constitution.
THE VERMONT BAR JOURNAL • SUMMER 2017
Justinian recognized the right to fish in
ports and in rivers, and on the seashore and
river banks, defined as land “over which the
greatest winter flood extends itself.” He
ruled that a man may take wild beasts on
his own or on others’ lands, unless prohibit-
ed by the owner. Abandoning the pursuit of
an animal you have wounded, a man would
lose the right to claim it as his own. Only an
actual taking will suffice. 72
unjust.” The precepts of the law “are, to
live honestly, to hurt no one, to give to ev-
ery man his due.” 67
The first book treats the rights of free-
men and slaves, pa rents and children, and
marriage. Slavery, he explained, is based
on the law of nations, “when one man is
subjected to the dominion of another, . . .
though contrary to natural right.” 68 A free-
man is a person who is “born free, by be-
ing born in matrimony of parents, who are
both free, or both freed; or of parents, one
free, the other freed.” Those born of a free
mother and a father who was a slave, were
free, even those “conceived discreditably.”
Justinian also adopted rules for manumis-
sion, whereby a slave might become a free-
man. 69
The second book addresses the law of
things, including laws on boundaries, high-
ways, wild animals, cemeteries, wills, and
trusts. Book III covers intestacy and con-
tracts. Book IV treats actions which arise
from mal-feasance and quasi-mal-feasance.
Justinian’s isn’t a criminal code, but the fi-
nal book includes some rules with criminal
penalties, including the sanction of death.
Breaking with Justinian’s ordering of the
laws, we take a different perspective, and
locate what is Justinian about present Ver-
mont law, beginning with the constitution
and statutes, and looking into how Justinian
was used by the Vermont Supreme Court.
The Common Law
Vermont’s Legislature adopted the com-
mon law of England in its first session. By
that act, all of Roman law that had survived
the British legal system poured into the
voids and provided a framework and a set
of laws and principles by which the judiciary
might act in Vermont courts and the people
might act in their daily lives. 73 References of
Justinian’s Institutes (and occasionally the
Digest) populate the decisions of the high
court throughout its history, but statutes
echo his rules in many titles without attri-
bution. The foundation of Vermont’s com-
mercial, probate, family, and property laws
is Justinian in origin.
Title 6
Bees belong to the person who owns the
land where they hive. When they swarm,
they remain the property of the owner of
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