History of Detroit and Wayne County and early Michigan: A Chronological Cyclopedia of the Past and Present, Vol. I, Part 39

Author: Farmer, Silas, 1839-1902
Publication date: 1890
Publisher: Detroit, Pub. by S. Farmer & co., for Munsell & co., New York
Number of Pages: 1094

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After neglecting their duties as judges, they would meet as legislators, and pass a law to remedy the defects of their carelessness or indifference. Pris- oners, on giving a note for the amount of their fines, were released from custody. Of necessity, great irregularities resulted from their actions, and the highest territorial judicial tribunal was brought into contempt.

During all these years there was no remedy in law against the decisions of the judges. The people had no right of appeal to the Supreme Court of the United States, and Congress did not interfere, and seemingly was determined not to remedy the evil.

From 1818 to 1836 the Territory now known as the State of Wisconsin was a part of Michigan, and the territorial court of Detroit had jurisdiction over that region as well. Criminals were conveyed here for trial ; and the plenary power which the judges exercised was a great convenience in trying cases, if not in administering justice. In some reminiscences given by Judge B. F. H. Witherell, in Gibbs's fourth volume of Michigan Reports, he says :

If any law was found to work badly, the governor, or one of the judges, notified the others, the Legislature assembled, and the law was repealed or amended. On one occasion, I recollect, two Indians were arrested on a charge of murder near Green Bay, and brought for trial to Detroit.1 When the Supreme Court assembled, it was found that the law relating to grand jurors was defective. The court adjourned, the Legislature assembled, the law was amended, and the prisoners were tried, convicted and ex- ecuted.

A reference to Volume I. of Territorial Laws, pages 234 and 235, shows that the law referred to, "An Act establishing Forms of Oaths," was passed September 17, 1821, Wm. Woodbridge, secretary of the Territory, being then acting governor, and A. B. Woodward and John Griffin judges.

The Detroit Gazette of November 1, 1822, says that the law in question was passed in the evening, the grand jury having been called in the morning of the same day. A record of the proceedings of the court, contained in the same paper, shows that there was much discussion among the judges as to the form of oath to be administered to the grand jury, and they finally settled the matter by passing the law referred to. The statute in question is thus shown to be a genuine and unmistakable ex post

facto law, applied even in a trial where two human lives were involved. It is doubtful if the annals of any other region in the United States afford such a record.

The case on trial was that of Ketaukah and Ke- waubis, who were executed December 27, 1821, the former for the murder of Dr. Wm. S. Madison, the latter for the murder of Charles Ulrich.

Concerning the trial of these Indians, C. C. Trow- bridge told the following incident : J. D. Doty had been assigned as counsel for one of them, and B. F. H. Witherell for the other. In company with Col- onel Louis Beaufait, as interpreter, they went to see their Indian clients, and learn the facts in the case. Witherell soon finished the interview with his client, and they all repaired to the cell of the Indian who murdered Madison. Mr. Doty asked him how it happened that he shot the surgeon. The honest savage replied, "I saw him going along, and I thought I would like to shoot him, and I did." "But," said Doty, "was there not some accident ? Were you not shooting at something else ?" After some time the prisoner seemed to comprehend the drift of the inquiry, and replied, "Oh, yes, I was shooting at a little bird." The young advocate then took courage. "Ah," said he, "this is clearly a case of no malice aforethought. Now, tell me, how far was this little bird from Madison's head?" The savage held up one finger, and with the digit of the other hand measured the distance of an inch, say- ing, "So far." Of course, Mr. Doty saw clearly that, on such a showing, he could not help the Indian's case. The defence was therefore only nominal, and the sentence of execution speedy.

During their confinement in the old jail, on the site of the present Public Library, the prisoners con- trived a sort of drum by drawing a piece of leather over the vessel containing their drink. Aided by this instrument, the night previous to their execution they danced their death-dance, renewing it again in the morning. From the jail they were taken to the Protestant Church, where an appropriate discourse was delivered by Mr. J. S. Hudson. They were then taken to the gallows. The First Regiment of the territorial militia were under arms on the occa- sion, and a guard of United States troops attended the execution. The spectators were very numerous.

These were the first persons hanged in Michigan after its cession to the United States. The cost of their execution is indicated in an appropriation bill of January 21, 1822, which gave $176.55 to E. Wing for services in Supreme Court, "and for executing a certain Indian," and "$33.88 to Thomas Rowland for erecting a gallows for the execution of a certain Indian." Some writers have stated that one of these Indians committed suicide the night before he was to be hanged, and that but one was really

1 They arrived in Detroit on the Superior, on Friday, August 3, 1821

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executed. The Gazette of December 28, 1821, says that both were hanged. The statement that one committed suicide probably originated from the fact that, five years after the execution of the two Indians referred to, two other Indians, Kiskauko and his son, the Big Beaver, were in jail, awaiting trial for the murder of an Indian in Detroit. While in jail, Kiskauko was visited by some of his tribe, one of whom gave him poison, and on May 17, 1826, he was found dead in his cell. On October 6 follow- ing his son escaped. Kiskauko had always been troublesome, and even his own tribe hardly regretted his death. The following story, told by Mr. School- craft, may account for this :

In the winter of 1823-1824 a Chippewa Indian, living at Sag- inaw, was killed by another of the same tribe, and, agreeably to custom, the relatives of the deceased met those of the slayer, for the purpose of compounding the affair, either by presents or by putting the slayer to death. At the council it was finally deter- mined to accept a certain amount in presents as indemnity. Both parties were now on the point of smoking the pipe of peace, when to the astonishment of all, Kiskauko, the Saginaw chief, stepped up, and with a single blow of his tomahawk struck the murderer dead. On being asked why he thus interfered with the operation of their old law, he coolly said, " The law is now altered."

Verily, he had imbibed the same spirit that ruled the Territory in those days.

The last instance of capital punishment in Michi- gan was on September 24, 1830, when a man named Simmons was executed for the murder of his wife. This execution, also, took place near the old jail, and was managed by Ben Woodworth. It was the first and only time, under American rule, that a white man was hanged in the territory included in Michi- gan. The occasion attracted a large crowd, seats were erected for spectators, and music furnished by the military band. Entertainments were scarce in those days, and both people and officials made the most of any and every " occasion."

[Capital punishment was abolished in Michigan by Revised Statutes of 1846.]

Much of the unwise and ill-considered doings of the judges was directly chargeable to the freaks of Judge Woodward.

The early history of the courts could hardly be understood without something more than a passing allusion to that eccentric genius. There was but one such man in all the United States, and for nearly twenty years he was a central figure at Detroit. He was a bachelor, a Virginian, from the District of Columbia, and his old manuscripts and letters prove that he was really learned and accomplished. In conversation he is known to have been entertaining and agreeable. In the full sense of the word he was a " character," that only a Dickens could properly portray. With some good qualities, there were peculiarities of manner so marked, and slovenliness so extreme, as to almost defy description. What- ever was odd and unreasonable, he was sure to do.

If there was a thunderstorm, his chair was placed outside the door, and he would calmly sit and take his shower-bath. His room, which was both office and sleeping apartment, was destitute of a book- case, and many valuable papers lay in a heap in one corner, and clothing for the wash in another. Sweeping was never done, lest his books should be deranged, and they were where he left them, some on the floor, some on chairs, and some on the table. A gentleman who was a passenger with the judge on the Walk-in-the-water in the spring of 1821, on a trip from Detroit to Green Bay, relates this anec- dote: " The steamer was lying at her little wooden pier at the foot of Bates Street, and a goodly num- ber of citizens were on board, to take leave of their friends who were passengers. Among those present was Judge Woodward. Just as the steamer was about to cast off her lines, a young gentleman, who had been hurriedly dispatched to the judge's quar- ters, appeared on board, with a clean shirt folded in a red bandanna handkerchief, which he gave to the judge, who announced that he also was a pas- senger. As the steamer entered the harbor of Mackinaw, where she remained a day, he went be- low, and soon reappeared arrayed in clean linen. When the boat left for Green Bay, the clean gar- ment was removed, and a soiled one took its place. On arriving at Green Bay, a change was again made. The narrator did not return to Detroit in the steamer, but the captain afterwards told him that the judge pursued the same careful course on the return, contriving, with the one clean shirt, to make himself, as he thought, presentable when in port."

The judge was very tall, with sallow complexion, and usually appeared in court in a loose, long over- coat, or a swallow-tailed blue coat with brass but- tons, a red cravat, and buff vest, which was always open, and from which protruded an immense mass of ruffles. These last, together with the broad ruffles at his wrists, were invariably so soiled that it might almost be doubted whether they had ever been white. His pantaloons hung in folds to his feet, meeting a pair of boots which were always well greased. His hair received his special attention, and on court days, particularly, gave evidence of the best efforts of the one tonsorial artist of the town.

On one occasion, not being able to find a barber capable of cutting his hair in the improved fashion, he sought advice from a member of the bar, who referred him to Austin E. Wing, whose aid he sought, bringing with him a pair of shears. His request was complied with, and his hair trimmed so close that he was compelled to wear a cap for weeks afterward.

He was never known to be wholly under the influence of liquor, but even while sitting on the bench he customarily kept a glass of brandy beside

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him; and night after night, for months together, he would sit in Mack & Conant's store, and alternately smoke his pipe and sip raw whiskey until his regu- lar half-pint was taken.

He was extremely fond of the society of ladies, and on one occasion, calling at General Macomb's just after tea, he was invited to the table. He at first declined, but eventually took the offered seat, and drank sixteen cups of tea before he rose. Upon another occasion he invited several of the first ladies of the town to a little party at his hotel. As chief justice of the Territory, his invitation was of course accepted, and when the refreshments were served, each lady was provided with a plate holding one almond, one raisin, one small piece of candy and one of cake.

During a part of his stay in Detroit he kept bachelor's hall, with a man for cook and house- keeper. It was thought at one time that he intended to marry, as he paid some attention, in his odd way, to a lady in the city. He had a fine coach and horses, which, when it was his pleasure to drive with her, he sent to the lady's door, ordering his coach- man to await his coming there. This was intended

as a notice to the lady to be in readiness to receive him. After a while the lady concluded to take no more drives with him. The last time his coach stood its hour at her door she declined to go, and he returned home on foot, giving orders to put up the horses. This was the judge's only attempt at court- ship while he remained in the Territory.

With all his eccentricity, he would often manifest the most painstaking research, and endeavor to please his friends and gratify the public; but what he would do, or leave undone, could never be fore- told. He was frequently in trouble with the people. Once, while upon the bench, he said that the French spent more time at church than was consistent with prosperity. This speech naturally induced great excitement, and he was compelled to apologize. Most of his writings are extremely verbose and full of literary egotism ; yet when it was his pleasure so to do, no one could write with greater modesty and directness. Allusions to his personal habits and private life would perhaps be unjustifiable if his public doings had been without reproach ; but it was of these last that the people specially complained. His conduct was protested against in petitions to the President and Congress.

On May 4, 1812, the Speaker of the House of Representatives at Washington laid before the House a presentment of the grand jury at Detroit, with other papers pertaining thereto, complaining of the non-execution of a law of the United States, ap- plicable to the Territory, and of the enactment of laws injurious to the interests of the Territory, and of misconduct on the part of A. B. Woodward.

Soon after this the post of Detroit was surrendered, and during the period of British occupation in 1812 and 1813, Judge Woodward, by appointment from Colonel Proctor, acted as chief justice, and held court under British rule. This gave further cause for dissatisfaction, and on November 24, 1812, in the House of Representatives, Mr. Poindexter offered the following :

Resolved, that a committee be appointed to inquire into the ex- pediency of repealing the Act entitled "An Act to divide the Indiana Territory into Two Separate Governments," passed the 11th of January, 1805, and of providing more effectually for the government of Michigan Territory ; and that the committee have leave to report thereon by bill or otherwise.

Mr. Poindexter said "that the object he had in view, in moving this resolution, was to get rid of the salaries of the officers of that Territory. Since the surrender of Detroit, their functions had ceased. yet they continued to receive their salaries, while one of them is a British prisoner, and another has accepted a commission under British authority. He wished to reorganize the government, and enable the proper authority to appoint other officers, and such as would, perhaps, administer the government of the Territory better than heretofore."

No action was had on the resolution ; possibly be- cause it soon became evident that Judge Woodward endeavored to serve the inhabitants while acting as a British official. He protested vigorously, to Proc- tor, against some of his unjust doings, and is deserv- ing of credit for his courage. These efforts, un- doubtedly, secured his retention as judge after the close of the war. His conduct on the bench, how- ever, did not improve, and for nearly a decade longer the people were outraged by his follies.

In the fall of 1822 many articles were published in the Gazette, detailing the farcical proceedings of the courts, conducted under his management as chief justice ; and the articles undoubtedly repre- sented the sentiments of a large majority of the people. In a communication signed "Z. Z.," pub- lished in the Gazette October 25, 1822, the following language was used : "To attempt anything like a brief outline of their innumerable outrages upon jus- tice and common sense would require a volume ; and indeed, if it were even possible, policy would forbid it ; as the very extent and enormity of the abuses detailed would throw an air of discredit on the nar- ration, in the minds of those at a distance, to whom alone we can look for redress."

A series of letters, contained in the Gazette of November, 1822, and addressed to Judge Wood- ward, gives further indication of the spirit and speech of those times, and sets forth his characteristics in a manner that would now be deemed sensational. The writer quotes from the court records of June 28, 1808, the following :

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Whereas, John Whipple, late of the district of Detroit, etc., late a captain in the army of the United States, Yeoman, on Sat- urday, the 25th day of June, 1808, in the afternoon, at the Dis- trict of Detroit, aforesaid, did stop the undersigned, one of the judges in and over the Territory of Michigan, and say to him, the said judge, that he, the said John Whipple, was present when an action depending in the Supreme Court of said Territory, between James Peltier and James and Francis Lasalle was continued, and that he, the said John Whipple, was of opinion that the said action ought to have been then tried ; that he, the said judge, was prejudiced against his, the said John Whipple's relations, and was partial to the said Messieurs Lasalles ; that the said Messieurs La- salles were the worst rascals in the country, and that he, the said judge, was a rascal, with other violent language, and gestures ; these are, therefore, to command you to take the said John Whip- ple, etc.

The article then says :

This warrant was made returnable before yourself. On this warrant, Whipple was brought before you, and after hearing the case, you gave the following opinion : "On the present occasion I am of the opinion that John Whipple be bound to his good be- havior until the ensuing term of the Supreme Court of this Terri- tory, and to appear at the said court, and not depart therefrom without the leave of the said court ; and for that purpose to recog- nize himself in the sum of twenty-four dollars, with two sureties in the sum of twelve dollars each." This outrage upon decency and principle needs no comment. If you wish to discuss this subject, I am prepared to show darker features of the case. I have read your defence of the procedure, and it is as singular and ridiculous as your conduct. * * * * * * * *

* * * *

On the tenth of June, 18rr, during the vacation of the Supreme Court, Whitmore Knaggs committed an assault and battery upon your person. The next day you issued a warrant under your hand and seal, charging him with this offence, upon which Knaggs was brought before you for examination. On the suggestion of Mr. Brush and others that your Honor did not look well sitting as an accuser, Judge Robert Abbott and Richard Smyth, two justices of the peace, were invited to become your colleagues ; they did so, and you, in conjunction with them, after citing many authorities to justify yourself, on the fifth of July ordered that Knaggs should enter into recognizance in the sum of $3,000, with two sureties in $1,500 each, to appear the next term of the Supreme Court, and in the mean time, keep the peace. These facts appear by the record, in your own handwriting, on file in the clerk's office of the Supreme Court. For this conduct you were presented by the Grand Jury for the Territory.

MICHIGAN.

October 24, 1822.

A second letter, addressed to Woodward, and dated Friday, November 8, 1822, says :

In my first letter to you, I brought two cases from the records of your court, in one of which you acted as an accuser, a prosecutor or party, as a witness, and as a judge, and in the other, you ap- peared also as the complainant, and as judge. I have made the charge and proved it.

The writer then quotes again from the record, saying :

Pages 24 and 25 of the record contain the following :

" At a session of the Supreme Court of the Territory of Michi- gan, etc., on the twenty-fourth day of September, 1806, etc., were present Judge Woodward and Judge Bates.

" In the case of the United States against Captain Adam Muir, Ensign John Stow Lundi, and Lieutenant Henry B. Brevoort, it is considered by the court that Adam Muir pay a fine of ten Pounds Sterling, equal to forty-four dollars and forty cents, and be imprisoned for seventeen days, and that he is now in the cus- tody of the marshal, until this fine is paid, the time of imprison- onment is expired, and the costs of the prosecution are paid. And that John Stow Lundi pay a fine two thousand Pounds Sterling,

equal to $8,888, and be imprisoned six months, and that he is now in the custody of the marshal until this fine is paid, the time of his imprisonment is expired, and the costs of the prosecution are paid. And that Henry B. Brevoort pay a fine of $250, and be im - prisoned seventy-five days, and that he is now in the custody of the marshal until this fine is paid, the time of imprisonment is ex- pired, and the costs of the prosecution are paid.

" In the case of the United States against Jean Marie Oule, it is considered by the court that the said Jean Marie Oule receives upon his bare back fifteen stripes, and pay a fine of twenty-five cents.

"In the case of the United States against Lieutenant Porter Hanks, it is considered by the court that Porter Hanks pay a fine of fifty dollars and the costs of the prosecution." (Lieutenant Hanks had pleaded guilty to the indictment.)

Court records September 26, page 26: Judges present this day, Woodward, Bates, and Griffin. " In the case of the United States against Captain Adam Muir, Ensign John Stow Lundi, and Lieu- tenant Henry B. Brevoort, on motion of the council for the defen- dants for amending the sentence pronounced against them on Wednesday, the twenty-fourth day of the present month, it is con- sidered by the court that so much of the said sentence as respects Adam Muir be amended by erasing the fine and imprisonment, and that the said Adam Muir do pay a fine of two and one-half cents, with the costs of the prosecution. And that so much of the said sentence as respects John Stow Lundi be amended by erasing the fine and imprisonment, and that the said John Stow Lundi do pay a fine of seven and one half cents, with the costs of the pros- ecution. And that so much of the said sentence as respects Henry B. Brevoort be amended by erasing the fine and imprison- ment, and that. the said Henry B. Brevoort do pay a fine of five cents, with the costs of the prosecution."

Page 27 : " In the case of the United States against Porter Hanks, on motion of council it was considered by the court that the said sentence be amended by erasing the fine, and that the said P. Hanks do pay a fine of one cent and costs of the prosecution."

September 27th: " In the case of the United States against Jean Marie Oule, on motion, etc., it is considered by the court that the said sentence be amended by erasing the said fine and whipping, and the said Jean M. Oule do pay a fine of eight dollars to Pierre Chene, with the cost of the prosecution, and stand committed, etc.

The record of the proceedings of the court on this day were not closed and signed until the twenty-third day of April, 1810.

(Signed) MICHIGAN.

The origin and progress of these remarkable trials is humorously told in a series of letters written by John Gentle to the Pittsburgh Commonwealth, and confirmed in almost all particulars by a letter addressed to Stanley Griswold, acting governor, signed by James Abbott and Wm. McD. Scott, jus- tices of the peace, published in the Philadelphia Aurora of November 10, 1806. Mr. Gentle says :

Soon after the departure of Governor Hull and Judge Wood- ward for Washington City (in November, 1805) a disagreeable affair happened between the military officers and the citizens. * The officers of Fort Detroit, and the officers of Fort Malden, on the British side, some years ago, entered into mutual agreement to aid and assist one another in the prevention and detection of de- serters. The British officers, on their part, have taken and de- livered up several deserters to the American garrison, the officers of which have often attempted to return the compliment, but the people considered such proceedings a violation of the civil laws of the United States, and contrary to the Constitution, and have always succeeded in rescuing the poor devils out of their hands. On Saturday evening a British soldier by the name of Morrison deserted from Fort Malden, and came over to Detroit for protec- tion. Two British officers came over next day, in the forenoon, in search of him, and remained incognito in the fort all the after- noon, in company with the officers of the fort. After dusk, in the

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History of Detroit and Wayne County and early Michigan: A Chronological Cyclopedia of the Past and Present, Vol. I, Part 39

Author: Farmer, Silas, 1839-1902 Publication date: 1890 Publisher: Detroit, Pub. by S. Farmer & co., for Munsell & co., New York Number of Pages: 1094

Author: Farmer, Silas, 1839-1902
Publication date: 1890
Publisher: Detroit, Pub. by S. Farmer & co., for Munsell & co., New York
Number of Pages: 1094