USA > Michigan > Oakland County > History of Oakland County Michigan a narrative account of its historic progress, its people, its principal interests Volume I > Part 17
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116. Portraits of Mr. and Mrs. J. R. Bowman. Mrs. Bowman was the daughter of Orrison Allen.
II7. Portrait of A. W. Hovey. Presented by Mrs. S. Baldwin.
118. Portrait of Mr. Dean, partner of Mr. Hovey in the drug and grocery business.
II9. Photograph of the original pioneers taken by W. H. Brummitt, September 10, 1874.
120. Spencer carbine, property of C. E. Sherman, Company C, Tenth Michigan Cavalry, Civil war.
I2I. Knights Templar sword found on Lookout Mountain.
I22. Sword used by Capt. J. O. Foote, Mexican war, New York regi- ment.
I23. Cane made in Kansas from cactus.
124. Case of sixty birds of Oakland county, captured and set up by George W. Bowlby. Many of the species are now extinct.
125. Collection of rare old books and papers, caps, collars, shellcomb and ancient housewives, loaned by Mrs. Mary J. Clark.
126. Confederate bond for one thousand dollars.
I27. Confederate money, presented by A. W. Johns.
128. Confederate money, presented by Joseph Nusbaumer.
I29. Wartime relics of envelopes, buttons and tickets.
I30. Tin cup bought of United States government August 22, 1861, by George Alexander, on the day of his enlistment in Company G, First Michigan Cavalry, carried and used by him all through the war and in 1865 in an expedition across the plains. It went through sixty-four en- gagements. Presented by George Alexander.
13I. Book brandy bottle was given Theodorus W. Lookwood of Company K of the Ninth Michigan Cavalry, when sick in camp by a lady, near Atlanta. It was full of fine peach brandy. The bottle was brought home in the fall of 1865 at the end of the rebellion. Presented by Mrs. T. W. Lockwood, Vermillion, North Dakota, September, 1909.
132. Minie ball, presented by George N. Smith.
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I 33. Pitcher over one hundred years old belonging to the grandmother of Mrs. Mary Giddings, by whom it is loaned.
134. Razor used by Benjamin Graham, son of James Graham, a Revolutionary soldier, and the first white man to make a permanent set- tlement in Oakland county, March 17, 1817. Loaned by Benjamin Graham of Avon.
The society has had gifts of valuable old books and papers from Ezra Jewell, Mrs. H. M. Look, Mrs. Clara P. Stewart, Harry Ten Eyck, Mrs. Mart Beeckman, Mrs. Sarah Waters Fuller, Mrs. A. J. Dewey, Egbert F. Albright and others. It also owns a full set of the Michigan State Pioneer and Historical Collections.
CHAPTER VIII DEVELOPMENT OF JUDICIARY
TERRITORIAL SUPREME COURT-OLD DISTRICT COURT-COUNTY COURTS. - CHANGE IN SUPREME COURT-CIRCUIT COURTS AND JUDGES-THE "ONE-HORSE" COURT-UNDER THE 1850 CONSTITUTION-A SUM- MARY-UNDER THE PRESENT CONSTITUTION.
By Aaron Perry
As a matter of historic investigation it is of interest to trace the origin of the various courts of justice which have extended their jurisdiction over the southern peninsula of Michigan. Reference has already been made to the Quebec act of 1774 which provided that the civil law of Paris and the criminal law of England should prevail in that region as well as the country farther to the north and northwest. So although it may satisfy historic curiosity to know that William Dummer Powell, afterward chief justice of Upper Canada, was the first to preside over the courts which sat at Detroit until 1796, when Jay's treaty went into operation, it is well understood that Northern Michigan was virtually an unpeopled region and was little affected by the supreme court and courts of common pleas and quarter sessions which convened in that city, the seat of justice from 1778 of the Canadian "district of Hesse."
TERRITORIAL SUPREME COURT
By the ordinance of 1787 the Northwest territory was provided with a governor, secretary and three judges, who composed the supreme court which held sway over Michigan. The judges, with the governor, con- stituted a legislature empowered to compile laws selected from the stat- utes of the original states, but not to enact original laws. The new terri- tory acquired by the Jay treaty, which included all of Michigan and Wisconsin containing any settlements, was attached to the Northwest territory as the county of Wayne, and it was during the year when that treaty became operative (1796) that the authorities made the first ap- propriation ($85) for a court in Detroit after Michigan came under control of the United States. One session of the supreme court was held in that city annually and John C. Symmes, the presiding judge who lived in Cincinnati, never missed a session until the Northwest territory was dismembered by the setting off of Ohio in 1800.
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The territory of Michigan was set off from Indiana in 1805, a separate government modeled after that of the Northwest territory being created on June 30th of that year. Under the provisions of its constitutions the supreme court consisted of a chief and two associate justices ap- pointed by the president of the United States. The judge holding the earliest commission was placed at the head of the court. The term of office depended solely upon "good behavior." No radical change was made in the provisions governing the organization and jurisdiction of the supreme court until 1824, Augustus B. Woodward having served as chief justice during the entire period and James Wetherell as one of his associates.
At first the supreme court had original jurisdiction in all cases involving the title to land, capital criminal cases, and divorce and alimony suits, and afterwards in all cases to which the United States was a party, as well as in all cases of ejectment. During the existence of the district courts, from 1805 to 1810, jurisdiction in civil matters involving sums to exceed $500 was divided and after the organization of county courts in 1815 the supreme court had jurisdiction over ejectment and civil actions when more than $1,000 was in controversy. It also determined all legal questions arising in circuit courts on motion for new trial, in arrest of judgments or cases reversed, and issued writs of error to circuit and county courts.
OLD DISTRICT COURT
Soon after the organization of the territorial government, on July 25, 1805, an act was adopted establishing three district courts to be held by the judges of the supreme court, Oakland county being in- cluded in the Detroit and Huron judicial district. Demands exceeding $20 were to be adjudicated by that court. In 1807 two associate judges, residents of the district, were added to the members of the court, but proved really of small assistance in the settlement of controversies. These courts were abolished in 1810 and for the succeeding five years there was no intermediate judicial body between the supreme and justice courts.
COUNTY COURTS
In 1815 county courts were established, the members consisting of one chief and two associates appointed by the governor. As stated by the "Michigan Manual:" "They had exclusive jurisdiction over all claims exceeding a justice's jurisdiction and not exceeding $1,000, but no jurisdiction in ejectment. Until 1818 final appeal lay to the county court from justices' courts. Chancery jurisdiction was then given them and provision made for the appointments of masters in chancery. When the act to establish county courts was passed, Wayne county was the only one organized and the district of Michilimackinac was excepted from the provisions of the act. After the. establishment of circuit courts (1824) the county courts began to decline."
By act of the governor and judges, July 27, 1818, a court of probate was established in each county. A "Court of General Quarter Sessions
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of the Peace" had already been provided for by acts of November 25, 1817, composed of the justices of the county courts and the justices of the peace of each county. They were required to hold four stated sessions per year, their duties being similar to those of the board of supervisors as now constituted. Judicial officers (other than the federal judges) including justices of the peace, were appointed by the governor.
CHANGE IN SUPREME COURT
In 1824 a radical change was made in the organization and functions of the supreme court, its three members being required to hold an annual term in each of the counties of Wayne, Monroe, Oakland, Macomb and St. Clair and special sessions in Michilimackinac, Brown and Craw- ford, whenever deemed advisable "in their sound discretion." Circuit courts were established in name during the following year, but were still held by the judges of the supreme court.
CIRCUIT COURTS AND JUDGES
In 1833 the county courts in the territory east of Lake Michigan, except in Wayne, were abolished and their places supplied by the "cir- cuit court of the Territory of Michigan," comprising one judge for the circuit and two associates for each county, whose respective terms were four and three years. The courts already existing were called "superior circuit courts" and were empowered to issue writs of error to the lower circuit courts. William A. Fletcher was judge of the circuit court of the territory from its organization until the coming of statehood.
The first state constitution framed by the convention in 1835, be- came operative when the enabling act for the admission of the state was approved by popular vote June 15, 1836. By act approved March 26th of that year, the state had been divided into three circuits, each of which was presided over by a judge of the supreme court, each to hold court in the several counties of his circuit, and all to sit together for the decision of appeals. These courts were given the same powers as the territorial circuit courts, except in chancery matters. Under the state constitution equity matters were vested in a court of chancery until that body was abolished in 1846.
The circuit judges, under the first constitution, were appointed by the governor and confirmed by the senate for a term of seven years. The circuit assigned to Chief Justice Fletcher comprised the counties of Monroe, Lenawee, Hillside, Jackson, Washtenaw, Oakland and Sagi- naw. As under the territorial system, two associates were chosen for each county. They were known as "side judges," were not necessarily lawyers, and, as they were generally considered more ornamental than useful-perhaps a part of the political "graft" of those days-were dis- pensed with in 1846.
THE "ONE-HORSE" COURT
In that year a county court was established by statute, comprising . a judge and associate, elected for a term of four years. The second
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judge was to act only in cases where the first was a "party in interest or in cases of absence or disability." The court was to sit in term on the first Monday of each month, and during such part of the month as might be requisite for transacting the business before it. This court was the fruit of a reform agitation largely centering in Washtenaw county, which demanded cheaper and more speedy means of securing (or trying to secure) justice for the average citizen or poor litigant than was afforded by the circuit courts. It was not a popular institu- tion with the lawyers, who dubbed it the "one-horse court." It went out of existence with the adoption of the constitution in 1850. The circuit judges, sitting together, constituted the supreme court of the state until the system was changed as hereafter noted.
UNDER THE 1850 CONSTITUTION
"Section I of article 6 of that constitution provides: 'The judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justics of the peace' with authority on the part of the legisla- ture to establish municipal courts in cities. It was provided that after six years the legislature might provide for what was popularly termed an independent supreme court, 'to consist of one chief justice and three associate judges' to be elected by the people. This power was acted upon by the legislature of 1857, and judges were elected at the spring election in that year, the court being organized January 1, 1858. The term of the judges was eight years, and they were so classified that their terms expired successively every second year. It is provided in the constitution that the court, when established, should not be changed for eight years. To what extent changes might be made after eight years may be a matter of construction. In 1867 the legislature so far departed from the letter of the constitution as to provide that the judges should be elected as justices or judges of the supreme court, without designating any person as chief justice, and that the senior judge in service should be chief justice. An even number of judges were found to work great inconvenience, because on some questions of importance there was an equal division, and hence no decision of the higher court, and thereby the decision of the lower court was rendered final. In 1885 a bill was introduced in the state senate by Senator Hubbell, of Houghton county, providing for an additional judge. An examination of the convention debates of 1850, made at his request, showed quite clearly that the intention was to have a bench of four judges only. Whether this was his reason for not pressing his bill is not known, but no action was had upon it at that session. At the next session a bill was passed for a fifth judge with a ten-year term."
By an act approved April 8, 1851, the circuit courts were rearranged and the Sixth judicial circuit created, composed of the counties of St. Clair, Macomb, Oakland and Sanilac. By an act approved March 18, 1869, the Sixth circuit was again rearranged and made to consist of the counties of Oakland and Lapeer, and the Sixteenth judicial circuit was created, composed of Macomb, St. Clair, Sanilac and Huron counties. Vol. I -- 8
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A SUMMARY
To recapitulate: Under the first state constitution, the supreme court consisted of a chief justice and two associates, appointed by the governor, who also had jurisdiction over three circuits, and their term of service was seven years; the constitution of 1850 provided that for the term of six years the five circuit judges of the state should con- stitute the supreme court, their office being made elective; in 1857 the members of the supreme court were made by legislative enactment to consist of one chief and three associates, elected by the people for a term of eight years; the legislature of 1887 increased the number of justices to 'five and lengthened the term to ten years, and in 1903 the court was made to consist of eight justices with term reduced to eight years.
Under the first state constitution Michigan was divided into three circuits, over which the supreme court judge presided; the constitution 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. The sixth circuit still comprises Oakland and Lapeer counties and is presided over by George W. Smith of Pontiac.
UNDER THE PRESENT 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 criminal and civil jurisdiction 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 members of that body being elected biennially. Four terms of court are held annually, its jurisdiction being generally understood.
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 juris- diction from all inferior courts and tribunals and a supervisory control of same. They shall have power to issue writs of habeas corpus, man- damus, injunction, quo warranto, and certiorari and to hear and deter- mine 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."
Under the constitution of 1909 the probate courts of the state "have original jurisdiction in all cases of juvenile delinquents and dependents," besides the powers usually prescribed for and exercised by them. The judges are elected for a four-year term, provision being made for "more
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than one judge of probate in counties with more than one hundred thou- sand inhabitants." Such additional judges are to be chosen at alternate biennial elections.
Justices of the peace were appointed by the governor during the territorial 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 providing for city justices.
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FAC- SIMILE OF THE FIRST LEGAL WRIT ISSUED IN OAKLAND COUNTY.
Territory of Michigan to ina County of Oaklang The United States of America,
To the Sheriff of Sais Bounty . You are hereby commandes to take Stephen Phelps, froo Selly, Mexendo Galloway, and Erro Shepwasong, if they may les youno in the Purity of Oakland, and then , Safely keep, so that you may have their bois. before the Justices of one saco County court, to le howero at Pontiac, ono the thing monday of only Instant, there and there to answer unito Daniele & Clarke, in a plex of Theshape one the case, to this damage, One Thousand Dollars, chucho schiavo che uno chevo chomare to appeal; ano of this will make duo return Witness Williams Chonsapone Esque, Chief Instead of one bais Vijunty Jours. Continiacho tenthe day of July, no thousand eight hundred gtwenty
Sidney Dolo Clerk of Oakland
OAKLAND COUNTY'S FIRST LEGAL WRIT (FAC-SIMILE)
CHAPTER IX THE BENCH OF OAKLAND COUNTY
COUNTY COURTS AND JUDGES-PROBATE COURTS AND JUDGES-CIRCUIT COURTS AND JUDGES-THE COURT OF CHANCERY-CIRCUIT COURT COMMISSIONERS.
The foregoing information regarding the establishment and develop- ment of the several judicial systems and the various courts applicable to southern Michigan has been introductory to the historical narrative which is to picture progress along the same lines in Oakland county.
COUNTY COURTS AND JUDGES
On March 28, 1820, Governor Cass proclaimed the county of Oak- land entitled to the rights of civil and judicial organization and estab- lished its seat of justice at the town of Pontiac, and two days later the terms of the county court were ordered to commence on the second Monday of February and the third Monday of July of each year. The first court was accordingly held at the county seat named July 17, 1820, with the following present : Hon. William Thompson, chief justice; their honors, Daniel Bronson and Amasa Bagley, associates; William Morris, esquire, sheriff, who returned the venire for the grand jury, which being called, appeared as follows: Elijah Willits, Ziba Swan, John Hamilton, Elisha Hunter, William Thurber, Ezra Baldwin, Asa Castle, Elijah S. Fish, Alpheus Williams, Oliver Williams, Alex. Gallo- way, Henry O. Bronson, Nathan I. Fowler, Josiah Goddard, James Graham, Enoch Hotchkiss and Calvin Hotchkiss, who were sworn to discharge their duties according to law. Spencer Coleman, Esq., of Detroit, was, on his own application, admitted to the bar of the court to practice his profession as an attorney, and on his application, Daniel LeRoy, formerly an attorney of New York, was also admitted. (Mr. LeRoy located in Pontiac, being the first resident attorney in the county of Oakland.)
William Thurber applied for a license to keep a tavern in Bloom- field for one year and Elijah Willits also asked for. the same franchise in the same township. Both petitions were granted on the principals entering into recognizance in the sum of $50 each-the former with John Hamilton and Willits as his security and the latter with William Morris and William Thurber as security-to keep a respectable house.
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The grand jury came into court after dinner, and were discharged for lack of something to do in the line of their peculiar duty.
The first case on the record appears to be one of Daniel P. Clark vs. Stephen Phelps, Ira Shelby, Alexander Galloway and Ezra Shepard- son, in an action of assumpsit, bail being given by the plaintiff, as required. The defendants appearing, the bail was discharged on motion of LeRoy, attorney for defendants, who also moved to dispense with that aid entirely, the writ having been improperly issued, he alleged, the attorneys for the plaintiff not having been admitted to the bar. But Mr. LeRoy withdrew his motion and George Throop and Joshua S. Terry were entered as special bail for Galloway, conditioned that Gallo- way should satisfy the condemnation of the court if he was condemned, or surrender his body to the sheriff in lieu thereof, and in default of Galloway to perform his undertakings, his securities would pay the condemnation for him. Subsequently the special bail surrendered their principal and he was taken in charge by the sheriff. LeRoy entered his appearance as attorney for Galloway and moved the court that plaintiff file his declaration on or before the next rule day of court, or that judgment by default should be taken by the defendant, and the court granted the reasonable rule. Solomon Sibley, afterwards judge of the circuit court, was admitted to the bar, and the court adjourned for the day.
On the second day the court announced the rule days of the court to be the first Mondays of May and October. The petit jury was called, . and there being no prospect of any of their peers being desirous of a hearing and adjudication of disputes at their hands, they were dis- charged. The court ordered the private seal of the clerk to be used for the public seal of the court until a suitable one was procured. The defendant, Galloway, came into court on this day and was admitted to bail, Samuel Beaman and Joshua S. Terry being his security for his appearance at the next term of the court, and to secure the payment of the condemnation of the court, if one was given against him, and a dedimus potestatem provided for to take testimony in the state of New York, if wanted, and the court adjourned for the term.
Thus was inaugurated the first court which had jurisdiction in Oak- land county. During the territorial period the following chief justices presided over the county court: Dr. William Thompson, 1820-27; Smith Weeks, 1828; Daniel LeRoy, 1829-32 ; Daniel Bronson and Amasa Bagley were their associates from 1820 to 1832. Under the reorganiza- tion of the county court in 1846, the presiding judge from that year until it went out of existence, January 1, 1852, was Charles M. Eldredge.
PROBATE COURTS AND JUDGES
On the 27th of July, 1818, the governor and judges passed an act creating a probate court in each organized county, which was held by a judge appointed by the governor. A register of wills was also ap- pointed by the same authority, who acted as register of deeds until 1835. The probate courts had full cognizance of mortuary matters and the supreme court had appellate jurisdiction over them. The powers
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and jurisdictions of the probate court are now substantially the same as when first established, and as its first session in Oakland county was held more than ninety years ago, it has the largest continuous history of any judicial tribunal in this section of the state.
The first session of the probate court in and for Oakland county was held at the house of Col. David Stanard, in the township of Bloom- field, in said county on the 15th day of June, 1822, Judge William Thompson presiding. On the application of Maj. Joseph Todd, Mrs. Elizabeth Harding was cited to appear on the 27th instant next ensuing, and file her petition before the court for administration on the estate of Eliphalet Harding, deceased, and the court adjourned to that time and the same place. On the 29th of June Mrs. Harding appeared, and, together with John Todd, was appointed administratrix of the estate of her late husband. Messrs. David Stanard, Calvin Gibbs, and Charles Howard were appointed appraisers. Before the inventory and appraise- ment were returned the widow married, and Judge Thompson evidently considered her wedding equivalent to her funeral, for he designated ever afterwards Mr. Todd as the surviving administrator. The Hard- ing estate proving insolvent, the late widow received $162.84 only, of the goods and chattels of the estate.
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