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In 1777 the politicians of Vermont published a litany of grievances against the government of New York and declared that thenceforward they considered Vermont a separate state pledging no allegiance to New York. Then they existed as an unrecognized state for 14 years before being admitted to the Union as the 14th state, first under their constitution of 1777 and then under their revised constitution of 1786. In 1777 they quickly asked the Continental Congress to be accorded representation in Congress, and being turned down largely because of objections from New York (repeatedly during 1777 through 1785) they took the position that Vermont was not a part of the USA (and in fact engaged in separate peace negotiations with the British, in which they said they would submit to being a British colony if the British would protect them from New York; those negotiations led to some prisoner-of-war exchanges). (Recall that no one ever defined the boundaries of the USA until the preliminary articles of peace were signed in November 1782, and they included Vermont within the boundaries. They had to do that because New York claimed Vermont was a part of New York.)

When Vermont was admitted to the Union in March 1791 (after the legislature of New York decided in 1790 to give up that state's claims on condition that Congress decided to admit Vermont) no new state constitution took effect and no new governor assumed office, nor new justices of the state's highest court, etc. The state government simply continued. Governor Thomas Chittenden, sworn in in October 1790, continued his term of office. (Chittenden was actually re-elected annually from 1778 to 1788, but then Moses Robinson served a one-year term as governor from October 1789 to October 1790, then Chittenden was again re-elected repeatedly until he died in 1797.) The act of Congress admitting Vermont to the Union did not say anything about creation of a new state or a new state government, but rather said "The State of Vermont" had "petitioned the Congress" for admission.

So it appears that under Vermont law, no new state was created but an already existing state got admitted to the Union, and federal law said nothing to the contrary. (Congress passed several bills pertaining to Vermont in February and March 1791. One of them admitted the state to the Union; one created a federal court in Vermont; one established a port of entry and customs house or something like that, where people entered the state from Canada; one fixed the number of representatives Vermont would have in Congress; and one provided that the U.S. census, conducted elsewhere during the previous year, should be extended into Vermont.)

So does the full-faith-and-credit clause of the U.S. Constitution require every state to grant full faith and credit to to official acts of the State of Vermont during its years as an unrecognized state? Is there a sort of tacit retroactive recognition?

(Vermont's constitution got revised again in 1793, and I suspect one reason for that was that it was no longer appropriate to have a list of grievances against New York in the state constitution.)

  • Is there any indication that the full faith and credit clause applies to any state? I believe that clause only applies to the federal gov. – Viktor Dec 23 '15 at 15:40
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    @Viktor : It says every state is to grant full faith and credit to the public act, records, and judicial proceedings of every other state. The question is whether full faith and credit is to be granted to official acts of Vermont when it was an unrecognized state. – Michael Hardy Dec 23 '15 at 16:38
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    @Viktor : I've rephrased the question a bit because of your comment. Let us recall something from Article IV, Section 1: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." To me this appears to apply only to the states, not to the federal government. – Michael Hardy Dec 23 '15 at 16:45
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    I apologize. I originally misread your question. – Viktor Dec 23 '15 at 16:45
  • I'm inclined to believe whether Vermont is legally a state or not under Vermont law is irrelevant. It's certainly a state under federal law, and the full faith and credit clause is in the federal constitution. – Justin Lardinois Jan 30 '16 at 16:00
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In my opinion, from the moment Vermont became a state, as decided by Congress, every state has to give full faith and credit to its records, acts, and judicial proceedings.

Congress in 1790 acted under the authority of the full faith and credit clause and passed a law that eventually became what is known today as 28 U.S. Code § 1738. That law was mostly unchanged through the years, aside from an amendment in 1948.

That law provided for each state to recognize each other's acts, records, and judicial procedures under the appropriate seal.

In 1813 the Supreme Court decided Mills v. Duryee. In this case the Supreme Court decided that the authority for states providing full faith and credit came under this law. This law does not list any dates of effectiveness nor does it restrict its effectiveness to when Vermont entered the union. Thus in my opinion at the moment Vermont entered the union full faith and credit should have been given to all its acts, records, and proceedings.

As I cannot find any case law in the affirmative nor in the negative I interpreted it myself above. Later the Supreme Court recognized a public policy exemption from the full faith and credit clause, likely anything that falls under that exception need not be recognized.

  • One bit of case law is less than 100% clear about this. In (I think?) 1933 the U.S. Supreme Court cited an act of the Vermont legislature passed in 1782, nine years before Vermont's admission to the Union, when it was an entirely unrecognized state that was threatened with overthrow of its government by the military of New York, as being among the reasons for its decision. But it's not clear that the Court held that that legislation is valid. The case was one in which the Vermont sued New Hampshire. They asked the Court to hold that the boundary between Vermont and New Hampshire.... – Michael Hardy Dec 23 '15 at 17:03
  • @MichaelHardy I agree. I've only conducted analysis with case law close to the time of Vermont joining the union, but could you give me the case you're referring to, so I could read up on it? – Viktor Dec 23 '15 at 17:03
  • ....was the "thread of the channel" (I'm not sure just how that is defined) of the Connecticut River rather than the west bank of the river. The act of the Vermont legislature in 1782 agreed to the west bank as the boundary. This was apparently in response to an act of Congress of August 1781 saying recognition of Vermont depended on Vermont's agreeing to certain boundaries. – Michael Hardy Dec 23 '15 at 17:05
  • "at the moment Vermont entered the union full faith and credit should have been given to all its acts, records, and proceedings". This point seems obvious, but the question is whether it should extend to Vermont's acts, etc. during the time when it was an unrecognized state that New York considered to be in rebellion? The fact that Vermont's government and constitution simply continued as they were on the day of Vermont's admission, rather than a new constitution and a new government beginning at that time (as happened in most other states, I think) might or might not have some... – Michael Hardy Jan 2 '16 at 19:01
  • ...implications about this. I think within Vermont necessarily acts of the legislature, governor, and courts before March 4, 1791 were treated as acts of the legislature, etc. of the state of Vermont. – Michael Hardy Jan 2 '16 at 19:03

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