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-
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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