A History of Northern Michigan and Its People, Volume I, Part 16

Author: Perry F. Powers
Publication date: 1912
Publisher: Lewis Publishing Co.
Number of Pages: 597


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Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).


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Under the first state constitution Michigan was divided into three circuits, over which the supreme court judge presided; the constitu- tion of 1850 made the circuit judge elective and the term of office six years. In 1879 the state was divided into thirty-five circuits; in 1899. the Thirty-sixth was created; in 1901, the Thirty-seventh and Thirty- eighth and in 1907 the Thirty-ninth and last.


UNDER THE 1909 CONSTITUTION


The constitution now in force, which was accepted by the people November 3, 1908, vests the judicial power of the state in "one supreme court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdictions inferior to the supreme court, as the legislature may establish by general law, by a two thirds vote of the members elected to each house." The supreme court con- sists of a chief justice and seven associates, two new members of that body being elected biennially. Four terms of court are held annually, its jurisdiction being generally understood.


JUSTICE A. V. MCALVAY


Justice Aaron V. McAlvay, whose term expires December 31, 1915. has had his home at Manistee since 1871. The following biography is from the Michigan "Red Book" of 1911: "Aaron Vance McAlvay was born at Ann Arbor, Washtenaw county. Michigan, July 19, 1847. His early years, when not in school, were spent on his father's farm. Mr. McAlvay received his early education in the public schools of Ann


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Arbor, being graduated in 1864. He was graduated from the literary department of the University of Michigan in 1868, with the degree of A. B., and in 1869 from the law department with the degree of LL. B. He taught school for one year before graduation, located at Manistee in 1871, and began the practice of law, continuing his practice until 1878 when he was appointed judge of the nineteenth judicial circuit to fill the vacancy caused by the resignation of Hon. H. H. Wheeler. At the expiration of the term he returned to practice and continued the same until June, 1901, when he was appointed judge of the same cir- cuit, and was elected November, 1902, without opposition. He was ap- pointed a non-resident lecturer in the law department of the Univer- sity of Michigan in 1897 and filled that position until his resignation in October, 1903. In 1910 the University of Michigan conferred upon him the degree of LL. D. Mr. McAlvay was united in marriage with Miss Barbara Bassler of Ann Arbor in 1872 and six children have graced this union, five of whom are now living. He was elected justice of the supreme court for the three years' term, November 8, 1904, and re- elected for the full term April 1, 1907, by a vote of 220,044 to 114,567 for George P. Stone, 11,600 for Winent H. D. Fox, and 5, 126 for James H. McFarlan. Justice McAlvay was chief justice during the year 1907.


CIRCUITS AND JUDGES


By the constitution of 1909 the courts of the thirty-nine circuits into which the state is divided are also required to be held four times each year in every county organized for judicial purposes. Circuit courts have "original jurisdiction in all matters civil and criminal not excepted in this constitution (1909) and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same. They shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, and cer- tiorari and to hear and determine the same; and to issue such other writs as may be necessary to carry into effect their orders, judgments and decrees and give them general control over inferior courts and tribunals within their respective jurisdictions and all such other cases and matters as the supreme court shall by rule prescribe."


The judges of the circuit courts are elected for a term of six years, and those who are now serving the portion of Michigan of which we write are: Frederick W. Mayne, Thirteenth circuit, Charlevoix ; Charles A. Withey, Nineteenth circuit, Reed City; Main J. Connine, Twenty-third circuit, Oscoda; Frank Emerick, Twenty-sixth circuit, Alpena; Fred S. Lamb, Twenty-eighth circuit, Cadillac; Frank Shep- herd, Thirty-third circuit, Cheboygan; Nelson Sharpe, Thirty-fourth circuit, West Branch.


The Thirteenth judicial circuit includes Antrim, Charlevoix, Grand Traverse and Leelanau; the Nineteenth, Lake, Manistee. Mason and Osceola; the Twenty-third, Alcona, Iosco and Oscoda; the Twenty- eighth, Benzie, Kalkaska, Missaukee and Wexford; the Thirty-third, Cheboygan, Emmet and Mackinac, and the Thirty-fourth, Arenac, Craw- ford, Gladwin, Ogemaw, Otsego and Roscommon. Mackinac, in the


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Thirty-third circuit, is the only county named in the foregoing list which is not included in this history, and the only one omitted is Clare, in the extreme southern tier, which, with Isabella and Midland, com- prises the Twenty-first judicial circuit, over which presides Peter F. Dodds, of Mt. Pleasant.


Under the constitution of 1909 the probate courts of the state "have original jurisdiction in all cases of juvenile delinquents and de- pendents," besides the powers usually ascribed to them. The judges are elected for a four-years' term, provision being made for "more than one judge of probate in counties with more than one hundred thousand inhabitants." Such additional judges are chosen at alter- nate biennial elections.


Justices of the peace were appointed by the governor during ter- ritorial times, but all the state constitutions have made them elective officials, with terms of four years. Not to exceed four justices of the peace are elected in each organized township, the legislature provid- ing for city justices.


HISTORY OF SETTLED JURISDICTION


The history of settled jurisprudence in the territory of Northern Michigan covered by this work had its origin in the constitution of 1850. The first subject of adjudication of the higher courts, within this area, was the Mormon King, James J. Strang, of Big Beaver island, who had established his capital at St. James, and settled a colony and erected a kingdom around it which threatened the supremacy of the Utah monarchy.


While visiting a brother in the city of Detroit, President Millard Fillmore was informed that among the remote islands of Lake Michigan a person named Strang had established what he termed a kingdom, but which actually was but a nest of freebooters engaged in robbing the mails and counterfeiting the coin. The president dispatched the armed steamer "Michigan" to the insular kingdom and ordered the arrest of the king for treason.


THE CASE AGAINST KING STRANG


The United State authorities decided to proceed against Strang also for trespassing on the public lands and stealing timber, his kingdom being at the time under the jurisdiction of the district court of Wayne county. The "Michigan" was therefore placed under orders of Dis- trict Attorney George C. Bates, and, with a force of deputy marshals to serve warrants upon the king and his lieutenants sailed from De- troit for Beaver Island late in May, 1851. About midnight the steamer reached the harbor of St. James, and the following morning King Strang and two-score other Mormons surrendered themselves to the officers of the law. These officers had been told that they would find the work- shop of the counterfeiters in an artificial cave fashioned from Mount Pisgah, but failed to locate it.


Whereupon a court was convened under an awning on the steam- er's deck, in St. James harbor, and a great mass of testimony was taken


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before United States Commissioner W. D. Wilkins. Over one hun- dred witnesses were examined. Strang was represented by Colonel A. T. McReynolds, the government's legal champion being, of course, Dis- trict Attorney Bates. As a result of the examination the United States officials released many of the Mormons and steamed for Detroit with King Strang and a few of his leading men. "There, from the latter part of May until the 9th of July, was held a trial that attracted atten- tion all over the country. The indictments against Strang were on twelve counts, including mail robbery, counterfeiting and treason. He conducted his own defense with such skill and shrewdness as to result in his acquittal. His speech to the jury was highly dramatic. He pic- tured himself a martyr to religious persecution. He was a master of emotional oratory and on this occasion particularly so. His acquittal was gained in the face of a violent local prejudice and the most virulent attacks in the local press. It was a victory that gave him an immense prestige at home and aided him abroad.


"Biding his own opportunity, Strang planned to secure the machin- ery of the law in his own hands. He so shrewdly manipulated politics that the solid vote of Beaver Island became of great concern to pol- iticians. To the discomfiture of the people of Mackinac, in 1851. the Mormons elected all the county officers. They now had the sheriff and the entire machinery of the law and could do as they pleased. A Mor- mon sheriff could serve the warrants, a Mormon jury convict and a Mormon judge sentence anyone resisting the mandate or authority of the king.


"In 1853 King Strang secured his own election to the legislature by clever political manipulation. His candidacy was not announced until election day; the Mormons then plumped their votes for him and snowed under their unsuspecting enemies, who supposed their own candidate would go in without opposition. An attempt was made to prevent Strang from taking his seat by serving an old warrant for his arrest. To outwit his foes, Strang barricaded himself in his state- room and withstood a siege until the boat entered the St. Clair, when he broke down the door and sought neutral territory by jumping on a wharf on the Canadian shore. Arrived at the capital, he ascertained that his seat would be contested. He argued his own case, and made such a favorable impression that he obtained the disputed seat."


King Strang was a lawyer and had practiced in New York and Wis- consin before he joined the Mormons of Nauvoo, Illinois, and led a rebellion against Joseph Smith and the council of twelve. He there- fore may be considered the first resident lawyer of the northern sec- tion of the Lower Peninsula, as the examination of himself and lead- ers aboard the "Michigan," and under the jurisdiction of the United States district court, may be called the first trial of a case in that ter- ritory before a regularly constituted bench of justice.


EARLY PRACTICE IN GRAND TRAVERSE REGION


Grand Traverse was the first of the counties between the straits of Mackinac and the Saginaw valley to enjoy a permanent judicial organ-


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ization, and the constitution of 1850 was the basis for the founding of law and order, through the courts, in that region. Prior to that year matters in dispute were settled in a crude way through the justices' "courts." A picture of the times prior to the coming in of the reg- ular judicial machinery, with the increase of population and civil or- ganization of the counties, is thus given by General B. M. Cutcheon, in his centennial address at Manistee; but the picture will apply to most of the justices' courts of 1849: John Barret's saloon "was a small room and contained a small box stove about twenty inches long, a bunk and a bench. It was full of men drinking and drunken. The furni- ture of the room consisted of two whisky barrels, a wash basin and a ladle; they drew the whisky in the wash basin, and every man helped himself with the ladle, and when the wash basin was emptied it was filled and passed again, at twenty-five cents a round. I have seen, said he (a settler of '49 is telling the story), in one Sunday, seventeen couples of men stripped and fighting around that place. The nearest justice was John Stronach at old Stronach mills, and only a trail to reach there. When called on he gravely took his statutes under his arm; the court made his way on foot, or in a canoe, down to the mouth, and held court in Barret's saloon."


"The exercises were introduced by a drink all around. Then the case was heard, and the court was not annoyed by lawyers or em- barassed by law. Having heard the evidence the court delivered his opinion as follows: 'Well, boys, this is a bad muss, and I guess you'd better settle it.' The parties were usually of the same opinion, and a drink of whisky all around closed the exercises."


Although the act for the organization. of Grand Traverse county was approved April 7, 1851, that instrument contained no provision for organizing a township and choosing inspectors of election, and the county therefore remained without a legal government until the spe- cial election of May 9, 1853. During the preceding winter the legis- lature had passed the act to complete its organization, providing for the special election of May and attaching to it, for judicial purposes, the counties of Antrim, Kalkaska, Missaukee, Wexford, Manistee and Leelanau. At the May election, George N. Smith, a son of Lyman, the first settler of the Traverse region south of Traverse City, was elected judge of probate, and Thomas Cutler was chosen clerk and register.


At that time Grand Traverse county was included in the Eighth judicial circuit, George Martin being the presiding judge. The first circuit court in the county was held at Mr. Cutler's house on the 27th of July, 1853, and Ebenezer Gould was appointed prosecuting attorney by the court. A. S. Wadsworth was foreman and Dr. D. C. Goodale clerk of the first grand jury. Benjamin Adsit heads the list on the record, and the familiar names of Samuel K. Northam, Elisha P. Ladd, Henry D. Campbell, Joseph Dame, Thomas Hitchcock and Lewis Miller follow. At that time Robert Mclellan, afterward a prom- inent and respected farmer on the peninsula, was admitted to the bar. The first trial by jury of which there is any record, was that of James F. Scott, for murder. It commenced on the 24th of August, 1855, and ended on the following day, the jury finding him guilty. He was


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sentenced to imprisonment in the state prison for fifteen years. The business of the courts was evidently dispatched with commendable celerity in those days.


The first attorney in the county was C. H. Holden, who moved to Traverse City from Northport in the fall of 1858, having been elected prosecuting attorney at the fall election. Soon afterward C. H. Marsh, located there, and in the spring of 1862, J. G. Ramsdell moved from Northport to Traverse City, having located at Northport in the fall of 1861. George P. Griswold, E. C. Tuttle and O. H. Mills were also early lawyers.


In the spring of 1865, E. S. Pratt and L. D. Boynton came to the city and were associated together in practice. Boynton afterward went away, but Pratt remained and was long the senior member of the law firm of Pratt, Hatch & Davis.


JUDGES LITTLEJOHN AND RAMSDELL


The first judge to serve Grand Traverse county after it became at- tached to the Ninth circuit was Hon. Flavius J. Littlejohn, who was succeeded in 1866 by Judge J. G. Ramsdell.


The following is one of the best sketches ever published of Judge Littlejohn and is from the pen of Edwy C. Reid, of the Allegan Journal: "On the morning of the 28th of April, 1880, ex-Judge F. J. Littlejohn was stricken with pain in his bowels and was forced to stop at his daughter's, Mrs. A. S. Butler, a short way off, not being able to go home. He remained there in great pain and dangerously sick for a few days when, becoming better, he was taken home, but not at any time afterward able to quit his bed except for short times. He remained in full possession of his mental powers and conversed quite freely, though at times his voice was made weak by pain. His physician from the first doubted his ability to effect a cure, but thought it possible to to restore him to his former state." The venerable jurist, however, passed away on May 15, 1880.


"Judge Littlejohn was born in Herkimer county, New York, in July, 1804. He graduated from Hamilton college in 1827, and delivered the valedictory address. In 1830 he was admitted to the bar. He prac- ticed law at Little Falls in his native county until the spring of 1836, when his health failed and he sought a home in the West. He settled in Allegan, being among the pioneers of that section of the country. He was engaged for some years as a surveyor, engineer and geologist. In the fall of 1841 he was elected to the lower house of the legislature and was afterward chosen for second and third terms. In 1845 he was elected to the senate. He was president pro tem of that body during the lengthy session of 1846, when the revised statutes of that year were adopted. He was again returned to the house in 1848 and sat as a member during its first session at Lansing. He was also elected to the same body in 1855. As a legislator his labors were arduous and his influence salutary. He was the originator and chief advocate of many measures which, having become laws, have strongly aided the growth and development of the state. In 1849 he ran as a Whig and


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Free-soil candidate for governor, making a thorough canvass of the state and lacking little of an election.


"The only county office Mr. Littlejohn ever held was that of cir- cuit court commissioner, but his defeats were always because of polit- ical questions, he having been a Democrat since 1850. He was fre- quently, however, made a candidate by his party whose confidence and respect he always retained.


"In the interval between his last two elections to the house, Mr. Littlejohn returned to the practice of his profession, in which he had also been engaged for the previous ten years. In 1858 he was elected judge of the Ninth circuit. This circuit had been newly organized and embraced, territorially, some twenty counties, viz .- those lying along the eastern shore of Lake Michigan from Van Buren to Emmet, be- sides the contiguous inland counties. No reliable means of public con- veyance then existed-there were not even roads-and the performance of his duties was therefore difficult.


"In 1875 or 1876, Judge Littlejohn prepared the material from which an historical work was compiled. As a lecturer he was, a few years since, in frequent demand, being sought both for his logic and his eloquence. In public matters he was always prominent and his influence was for good, his labor in the cause of temperance pemg con- stant and effective. Living always a moderate and exemplary life, he professed Christianity only in his later years, but he was then very firmly convinced of its truth and did some work for its advancement. As a citizen and a judge he always bore a spotless reputation, and goes to his grave full of honors and of years, widely known and as widely respected, peacefully and in faith moving to his reward."


Jonathan G. Ramsdell was a native of Wayne county, Michigan; commenced the study of law at Lansing and was admitted to the bar in 1857. For a time he held the office of circuit court commissioner of Ingham county, and for four years was clerk of the Supreme court. In 1861, by request of the governor, he became identified with the Agri- culture College as a lecturer on commercial law, having during the cam- paign of the previous year visited the Grand Traverse region and fa- miliarized himself with it while making political speeches. About that time he went to Manistee to assist his brother, Hon. T. J. Ramsdell, at a term of court. The fall and winter of 1860 he spent at Northport, but had purchased a large tract of fruit land in Grand Traverse county, upon which he moved as a homestead in the spring of 1862. He en- gaged successfully in the practice of law, and as circuit judge from June 19, 1866, to December 31, 1875. He was both able and popular.


COURTS AND LAWYERS IN CHEBOYGAN COUNTY


Under the act of 1853 by which the counties of Cheboygan and Wyandotte were erected into Cheboygan county, the county seat was established at Duncan, and the counties of Alpena, Presque Isle, Mont- morency, Otsego, Crawford, Oscoda, Alcona, Iosco, Ogemaw and Ros- common were attached to it judicially. In the new county therefore centered the judicial functions of most of the eastern half of the ter-


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ritory covered by this work. Cheboygan did not assume organized civil government, however, until at the special election of May, 1855, when Bela Chapman was chosen judge of probate and Samuel H. Price, circuit court commissioner.


The first session of the circuit court was held in the United States land office, at Duncan, on the 22nd of July, 1856, and was presided over by Judge Samuel F. Douglass. In the following mouth, Duncan was displaced by "the town of Inverness" as the seat of justice for the county.


At the time of his death March 28, 1898, Judge Douglass was the oldest member of the Detroit bar and had held leadership for several generations, until old age and threatened paralysis incapacitated him for the activities of his profession. He was born in Wallingford, Rut- land county, Vermont, February 28, 1814, but western New York was his home from infancy to early manhood. Judge Douglass studied law under able instructors until he came west to Detroit, in 1837, and was admitted to the Michigan bar in the following year. He commenced practice at Ann Arbor, but returned to Detroit, which was his home city during the many years of his practice and judicial service. He was also active and prominent in municipal affairs.


In 1845, and on the first creation of that office, Judge Douglass was appointed reporter of the state supreme court, and in that capacity pub- lished the first two volumes of its decisions, 1843-7 inclusive. The con- stitution of 1850 divided the state into eight judicial circuits, of which Wayne county was the third, and provided for the election of a judge for each circuit, the eight together to constitute the supreme court. This was Michigan's first experiment of an elective judiciary. At the first election, under the constitution, Judge Douglass, who had run as an independent candidate, was chosen by a large majority. This was a most flattering compliment, as he was known as a decided Demo- crat. But he was not an aspirant for the bench, his name had not been used until a few days before the election, and the confidence in him, irrespective of his political connections, was general; hence his election. He held the office until the spring of 1857 and gave unqualified satisfaction to the bar and his associate judges, but declined a renomina- tion and returned to practice. For thirty or more years thereafter he was an acknowledged leader at the Detroit bar.


James S. Douglass, the first circuit court commissioner who is known to have really served in Cheboygan county, had to be admitted to the bar in 1857 in order to legally qualify. So Judge B. F. H. Witherell (who had succeeded Judge Samuel F. Douglass) asked James S. Doug- lass, who was regarded as most eligible for the office, whether he had read Blackstone or Kent. He replied "no." The judge handed him a copy of Blackstone and a pair of green spectacles and told him to read it at once. After perusing its pages a few minutes to become posted upon the points of the law of which it seemed most necessary that he should be informed, the judge asked him a few questions, he was admitted to the bar and appointed circuit court commissioner.


It may be noted of Judge Witherell that his admission to the supreme court of the United States was made on motion of Daniel Webster.


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For the greater part of the period between 1830 and 1840 he filled the offices of probate judge and prosecuting attorney for Wayne county. In 1843 he became judge of the district criminal court, then consisting of the counties of Wayne, Washtenaw and Jackson, and held the office until it was abolished by the constitution of 1850. Some years after- wards he was chosen to the position of circuit judge of Wayne county to fill the vacancy caused by the resignation of Judge Douglass, in 1857, whose term he completed. At the expiration of this he was again clected and had served about four years of his third term at the time of his death, having occupied the position altogether ten years. In his prime the Judge was over six feet in stature and weighed about two hundred pounds. He was genial and kindly in his disposition and one of the sturdiest Democrats of his day.


The judicial machinery of Cheboygan county was thus early planted and set in motion, but it was several years before the legal field was considered fruitful enough to attract permanent practitioners. Among the first to appear were D. R. Joslin, George W. Bell and Watts S. Humphrey. who settled at the village of Cheboygan in the spring of 1869.




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