USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 18
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PROBATE BUSINESS
An entry made March 13, 1773, but dated January 22, 1772, shows one of the prerogatives retained by the commandant. It has been stated that there was no court of probate at Detroit, nor does it appear that the probate court at Mon- treal had jurisdiction over this territory at that date. Of course, people left estates to be disposed of, and the proper application of the assets of a decedent was a matter of interest, not only to creditors and heirs, but to officials who had the welfare of the people in their charge.
In the estate of M. and Madam Chabert, both deceased, the commandant appointed Messrs. Navarre, Cicot, Lieutenant Abbott and Mr. Macomb ap- praisers to make an inventory of the estate for the benefit of the creditors. The warrant is in French and the appraisers apparently understood that lang- uage. Every citizen of that day must have been able to talk with the natives in order to carry on business. The appraisers were all well-known citizens. Navarre, the notary, and Cieot, the trader, were too well known to necessitate the introduction of their first name. Lieutenant Abbott was the Edward Abbott who, at a later date, was appointed lieutenant-governor of Vincennes, one of the three lieutenant-governors appointed by the British during the Revolution, the two othiers being Pat. Sinclair at Mackinac and Henry Hamilton at Detroit. There were three men bearing the name of Macomb; John Macomb and his two sons, Wlliam and Alexander. The one mentioned here is Alexander Macomb. The inventory was a very long one and included every object of value about the estate.
The want of courts and of a proper custodian to care for the property induced the creditors to petition the commandant to take the matter into his hands for their protection. Their petition reads as follows:
"Detroit, 24th Jany., 1773.
"We, the subscribers, being the principal creditors at this place of the late Mr. and Mrs. Chabert, on finding the above effects exposed to accidents of fire, thieves, etc., and there being no person to take care of the same, most humbly beg that you will be pleased to order them to be vendued as soon as possible, and have the moneys arising therefrom lodged in safety until you may judge proper to order a distribution to be made thereof, and with much respect.
"Sir, your most obedient and humble servants. "William Edgar, "James Sterling, "George Meldrum, "Andrews and Meldrum,
"For Campbell and Elice and Porteous, "P. Dejean.
"To Major Henry Basset, Commandant at Detroit."
In connection with the matter of the probate of wills, there were two wills brought to light by the late Mr. John V. Moran, who came across them in the family papers belonging to his father, the late Judge Charles Moran.
The first is the will of Joseph Chapoton, a youth who had reached an age when he was dependent upon his own exertions for a living (garcon emancipe d'age). It is dated March 7, 1761 and begins with the statement that it is made before the royal notary at Detroit and witnesses. It is not signed. It was not probated and bears the approval of comparisons several years later, 1776, of P.
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Dejean, notary. The testator was a brother-in-law of Gabriel Legrand, and the brother of Magdelaine Chapoton, Legrand's wife.
The other will is that of Magdelaine Chapoton, wife of Gabriel Legrand, who is here described as a surgeon (Chirurgien). This will is not dated. The testa- trix declared she was unable to sign her name and that the declaration is made under the ordinance of 1762. This will is signed by two notaries, Navarre and J. Bte. Campau, and is subsequently, February 1, 1776, compared or approved by Dejean. The will is not otherwise proved or probated.
The notary, Navarre, in this and in many other cases neglects to attach his first name, laboring under the impression, perhaps, that he was too important to be mistaken for any other individual.
Magdelaine Chapoton was married to Gabriel Christoph Legrand, sieur de Sintre, about 1758 and died January 5, 1763. There is a deed dated September 2, 1772, by James Abbott and James Rankin, executors of William Graham, de- ceased, to Gregor McGregor, conveying a lot on Ste. Anne Street, in the fort of Detroit, on the corner of St. Peter Street. The deed is also executed by Eliza- beth Graham, the widow of the deceased, and is in the form of modern deeds, except that it is not acknowledged.
On page twenty-three of volume B of the old records is an evidence of the attempt of Dejean to usurp the office of probate judge. It seems that in 1769 Alexis Chapoton made his will, in the presence of the judge and of Nicolas Lorain and Nicolas Perot; that subsequently Chapoton went to New Orleans, which is "situated on the river more than 10 leagues below Natches", and there died. His will was opened in the presence of Pierre St. Cosme and Jean Bte. Campau, and was admitted as a valid will by Judge Dejean at the request of Jean Bte. Chapoton, January 29, 1777.
The form of French conveyances is somewhat different. Under the French custom, the parties all appeared before the notary and he wrote out the agree- ment at their request and those who could write, attached their signatures. An explanation was made by the notary in case of illiteracy of any one or more of the parties. There were no witnesses other than the notary, and no acknowledg- ment was taken as in modern conveyances.
ARBITRATORS
The instructions to the justice in his appointment specified that, before he should proceed to the trial of any cause, there should be arbitrators appointed to decide the points in dispute and the contestants should agree to abide by the decision of the arbitrators and should enter into a bond containing these condi- tions. No instanee has been found where a ease was disposed of, or a dispute settled, without this arbitration, but in the case of Cabassier vs. Laferte, in 1773, the records disclose that Laferte refused to sign the bond that had been drawn up as preliminary to the arbitration.
MARRIAGE CONTRACTS
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It has been mentioned above that before a marriage took place between mem- bers of the old French families a marriage contract was usually entered into between the contracting parties. This was a civil contract, wholly aside from the marriage itself, and related to the property which the parties had at the time of the marriage, and which they might thereafter accumulate. It was somewhat like the provisions of the coutume de Paris. The property that belonged to the
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husband and wife, both that which was theirs before marriage and that which was subsequently accumulated, should, upon the death of either, go to the sur- vivor upon the payment of the debts of the deceased. The survivor took in it only an estate for life. At the death of the survivor this property passed on to the children equally. It was, however, always the privilege of the survivor to refuse to take under this provision and then the survivor could take only such property as he or she had brought into the community at the time of the mar- riage. The justice of this provision is quite apparent. The husband might be so heavily in debt at the time of his decease as to quite strip the wife of all of her property, and it would be no more than equitable that if she gave up all the property that her husband had before marriage, as well as what they had ac- cumulated jointly after marriage, she could elaim and hold all that which she brought with her at the marriage. It was a marriage contraet of this nature that Laferte had entered into and undertook to repudiate. Laferte and Cabas- sier were near neighbors.
They both lived on St. Louis Street in the village and their farms adjoined each other on the Detroit River at the present Twelfth and Thirteenth Streets. Cabassier told his troubles to the commandant and the proper bond was drawn up and two of the arbitrators were chosen, Medard Gamelin and A. Barthe. When it was ascertained that Laferte refused to sign the bond and proceed with the arbitration, the arbitrators drew up a formal notice of the fact, signed it themselves and had it witnessed by a number of prominent citizens-J. M. Legras, John Porteous, St. Martin, J. A. Portier, Pierre Gamelin, George MeDougal, Z. Veauchers and B. Chapoton, and put it upon the public records as an evidence of bad faith on the part of Laferte, and as a warning to others to beware of dealing with a man who repudiated his agreements and then refused to arbitrate the matters in dispute. At this long distance it is impossible to tell what the result of this protest was, but apparently it brought the delinquent to time, for the matter does not again appear in the records.
The marriage contract is too long to be given here, but in substance it is as follows: It is dated September 21, 1771; the contracting parties were Louis Veziere dit Laferte, son of Pierre Veziere and of Marie Ann Leclaire, his wife, of the one part, and Catherine L'Esprit, daughter of the late Claude L'Esprit dit Champagne, and of Angelique Bienvenue, his wife, of the other part. The father of the bride being dead, her stepfather, Joseph Cabassier, represented her on this occasion. All the relatives and friends of both parties joined in the agreement in evidence of the good faith of the proceedings. Louis agreed to take Catherine for his wife as soon as possible, and at the request of either party. All the property they possessed should be held in common, according to the couteime de Paris. Neither party was holden for the debts of the other contracted before marriage. The property of Louis, at that time, was estimated at ten thousand livres (a livre was worth from twenty to twenty-five cents of American money, though it must be understood that more could be purchased with money at that time than at present). He gave his expectant wife three thousand livres as a "prefix dower." This sum was to be hers if she survived her husband and had children living at that time. If there were no children, she was to have fifteen thousand livres. If, at the date of her husband's death, she desired to renounce the community of property, she was to take all the property she brought to the marriage, as well as all estate that might come to her by inheritance.
Vol. 1-12
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The property of Catherine consisted of a farm two and a half arpents wide, on the north side of the Detroit River, on which was a new house and an orchard, and one half of certain sites in the village. After the marriage had taken place, some question arose as to the terms of the settlement, and Laferte and his wife demanded a settlement of the accounts of Cabassier, as guardian for Cath- erine. C'abassier refused, or neglected, to make the accounting and without delay appealed his case to the commandant, Major Basset.
The entire family was now broken into factions and a great quarrel ensued The witnesses to the marriage contract were summoned to testify to the circum- stances connected with the signing of the agreement and to the fraud that Laferte claimed was played upon him on that occasion by Cabassier. Major Basset finally directed Cabassier to make an inventory of all property he held belonging to his ward and he was compelled to account for the entire amount.
The renunciation of the community of goods by a widow was not uncommon. One such instance is shown in the record on August 12, 1774, where Agathe Laselle, widow of the late Hyacinthe Reaume, finding the acceptance of the community more onerous than profitable, refused to take it. The refusal was duly drawn up in the presence of the notary and witnessed by William Edgar and Jehu Hay.
USE OF ARBITRATION
In a country inhabitated by peace loving citizens who are without laws other than of their own making the method of arbitration is the only means by which substantial justice can be done to all parties. It is the primitive form of administering justice where all people are equal and mean to be honest.
Another instance of this method of settling disputes occurred in November of this same year, 1773. John Steadman, who lived at the carrying place at Niagara, was the owner of a lot situated in the barrack yard, called the citadel, in Detroit. He sold the lot to Alexander and William Macomb for five hundred and fifty pounds. He described his land, in his deed, as containing eighty feet front and rear by one hundred feet in depth, bounded on the east northeast by the stockade and on the west southwest by a lot belonging to Duperon Baby. After the sale was made the purchasers ascertained that the commandant, Captain George Turnbull, had taken some ten feet from the parcel in the citadel for the purpose of opening a public alley. Steadman was called upon to pay for the parcel taken for the alley, or the resultant damages. Without waiting for the appointment of the tribunal of formal arbitrators, Steadman himself appointed "James Sterling, John Porteous and George MeDougall, or any other three impartial persons, to examine what loss the said Macombs may have sustained by the want of that piece of ground." He agreed to pay whatever the land was found to be worth.
PLEA FOR DAMAGES
While upon the subject of the stockade and barracks, an interesting circum- stance is disclosed by a paper on file in the Dominion archives at Ottawa. It relates to William Forsyth, who was a tavern-keeper at the time noted. His wife's name was Ann. She had been married twice before becoming the wife of Forsyth. Her first husband was a Mr. Haliburton, chaplain in the first regiment, and her daughter, Alice, the only child of the marriage, married first to Sampson Fleming and secondly to Nicholas Low of New York. Ann's second husband
.
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was a Mr. Kinzie, or MeKinzie, and the only issue of this marriage was John Kinzie, the first white man in Chicago. By her third marriage, with William Forsyth, she had six sons, who became heads of families important in the annals of Detroit and in military affairs of our government. The paper referred to reads as follows:
"The Humble Petition and Memorial of William Forsyth, Tavern Keeper at Detroit.
"Sheweth:
"That your petitioner has served his Majesty fourteen years in the Sixtyeth Regiment of Foot, and in several campaigns along with your Excellency until the Reduction of Canada took place, where he was wounded in three places, which rendered him unfit for future service, but was long confined by sickness, and a great expense in his recovery of the said wounds, and being unable to gain his livelihood by hard labor, he built a Ball Alley in this town, in the year One Thousand Seven Hundred and Eighty-six, with the sanction and permission of Major Averum, then commandant of this post, which cost three hundred and eighty-one pounds of New York currency.
"That when Captain Mann arrived here it was thought to obstruct the fortifications and was of consequence ordered to be pulled down without allow- ing any consideration and the loss it became to your petitioner, who has now a large family to support and which reduces his circumstances.
"Wherefore, your petitioner humbly prays that your excellency taking the merits of his service, his loss and the situation of his family unto consideration, will be pleased to order that your petitioner may in some manner be reimbursed for the said loss of Three Hundred and Eighty-one pounds or such part as to your Excellency may seem meet.
"And your petitioner will ever pray,
"WILLIAM FORSYTH.
"Detroit, 2nd August, 1789."
The citadel referred to, and for the enlargement of which the ball alley was pulled down, was erected just to the west of the old picket line of the post. The first portion of it was built by Israel Putnam in 1764. It extended from the present Jefferson Avenue in a northerly direction a considerable distance. It was nearly triangular in shape, surrounded by high pickets and the easterly side was the picket line of the village. It held all the troops until after Fort Lernoult was completed in 1779. During the Revolution it was used as a prison- or detention room for prisoners of war brought here from the Ohio region.
APPOINTMENT OF KING'S SURVEYOR
The boundary lines of the farms were a source of many disputes and com- plaints became so common that the commandant made an appointment which read as follows:
"By Henry Basset, Esqr. Major of His Majesty's Tenth Regiment, Com- mandant of Detroit and its Dependencies:
"In consequence of the repeated complaints made by several of the inhab- itants that their neighbors have encroached on their farms, and that they do not actually possess the quantity specified in the primitive grants, and for which they pay the quit rents to His Majesty, Mr. James Sterling, being an ex- perieneed and approved surveyor, I have appointed him king's surveyor at
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Detroit, and for the future his surveys only shall be looked upon as valid and decisive, and all whom it may concern are hereby ordered to conform thereto.
"Given under my hand and seal at Detroit, 21st, April, 1774.
"HENRY BASSET,
"Major and Commandant."
While this commission does not, in itself, give the surveyor any judicial authority, it probably was received by the people as conferring it. Sterling was a prominent citizen in the place. He had come to Detroit as early as 1763 and perhaps even before that date. He had married Angelique Cuillerier, a daughter of Antoine Cuillerier, one of the oldest French citizens, and his con- stant association with the Canadians had won for him their respect and con- fidence. He not only understood their language, but he was an interpreter between the English and the Indians. He was a trader, surveyor, collector of public revenues, and military store-keeper.
POLITICAL SITUATION IN 1774
Toward the end of 1767, Sir Guy Carleton sent a memorial to Lord Shelburne concerning the legal situation of Canada. The memorial is quite long and a short summary of its contents only shall be given here. The people of Canada, he wrote, are not Britons, but Frenchmen who were brought up under laws very different from those followed in England; that on the mutation of lands by sale they established fines to the king instead of quit rents. Fines and dues went to the seigneur and he was obliged to grant his lands at a very low rental. This system established subordination from the first to the lowest and preserved internal harmony until the British arrived. All this was changed in an hour and overturned by the ordinance of 1764. The laws introduced in this ordinance were unpublished and unsuited to these people, and the ordinance ought to be repealed at once. The greatest complaint arises from the delay in hearing causes and the heavy expense of the trials. Formerly the king's court sat once a week at Quebec, Montreal and Three Rivers. From these courts an appeal could be taken to the council that sat once a week. Fees were very small and decisions immediate. Now the council sits three times a year at Montreal and has introduced all the chicanery of Westminster hall into this improverished province.
Carleton suggested the adoption of the old Canadian laws with such alter- ations as time might render advisable. A judge should reside at each of the places above named, with a Canadian assistant, to sit at least once a month. None of the judges or other officers of court should receive any fee, reward or present from the people, but should depend solely on a salary. Officers should be versed in the French language. Sir Guy, to expedite matters, proposed not to await the action of parliament, but to pass an ordinance of the council of Canada which would put into force the old French laws so far as the tenures and inheritance of land, the making of deeds, mortgages and wills, but the ordinance proposed by him was never enacted and indeed there is no evidence that it was ever submitted to the council for action. This was the political situation of Detroit and of all Canada (for Detroit was first included in Canada at this time) in the year 1774.
General James Murray was appointed governor over the province of Quebec December 7, 1763. The governor was empowered to appoint courts of judicature and justice with the advice and consent of the assembly or council. The history
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of Canada does not indicate that Murray or his successor, Carleton, ever under- took to establish a system of judiciary in Detroit or over the western country.
Sir Guy Carleton (afterwards Lord Dorchester) was the governor until after the outbreak of the Revolution, and during the period from 1760 until 1774 Detroit was omitted from the country supposed to be governed by any legal authority. It is very hard to determine just how the country was looked upon by the British. The village was under military authority always, and the troops stationed in the garrison were subject to the military authorities of Canada.
THE QUEBEC ACT
In 1774 there was introduced and passed in parliament the act commonly known as the "Quebeck aet." During the passage of this act Carleton was summoned before a committee of the house of parliament to testify regarding affairs in the province of Quebec, and from his testimony it may be ascertained how little was known in England of the geography of America. Carleton said that the officers of justice should proceed farther into the interior of the govern- ment than they had and that he did not understand that the country as far as the Ohio was ever under the government of Quebec. He was then asked to in- form the committee whether Detroit and Michigan were under the govern- ment. He replied, "Detroit is not under the government; Michigan is under it. There is very little inconvenience in governing them, for this reason-there are very few Europeans settled there. I do not know the settlement of Detroit very accurately. It has been established for some time. The intendant had delegates up there, but there was very little business."
Detroit, he stated, was not under civil government, and Lord North, in the debates on the same subject, stated that the distant military posts were without any government other than that of the respective commanding officers. It is possible that this ignorance of the geography of the country was the reason that Detroit was excluded from the boundaries of the province of Quebec in the proclamation of 1763 and was consequently omitted from civil government.
The Quebec Act extended the boundaries of Quebec southward to the banks of the Ohio and northward to the boundary of the Hudson's Bay Company, so that Detroit, for the first time, now came within the limits of the civil courts of Great Britain. The right of trial by jury in civil cases was not provided in the Act, but the ancient civil laws of France were to be followed. The criminal law of England was adopted.
LAW OF ALLOTMENT
In 1773 there was laid before parliament a draft of an act for the government of Quebec which recited a law enacted in 1745, under the French regime, designed to prevent the division of farms into small parcels by allotment between the children of a decedent land owner. This act provided that no dwelling house or stable of stone or wood should be built upon any parcel of land of less extent than an arpent and a half in front by thirty arpents in depth or containing less than forty-five French arpents (or English acres). If any building was erected upon any smaller parcel, the owner should pay a fine of one hundred livres, equal to four pounds ten shillings, and the building should be destroyed. The English act, to attain the same ends, provided that the oldest son or daughter should inherit to the exclusion of all the other children.
The object of these provisions was to leave the ancestral home undivided and
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compel every other member of the family to seek a new parcel of land and thus bring more land under cultivation and prevent the people from living in a "mean, scanty and wretched manner upon small pieces of land which are hardly suffi- cient to maintain them." The plan thus presented was not adopted or enacted for the government of Canada, but, practically, at the death of an ancestor his property was divided equally between his children.
The ancient French law was carried out in another way. Upon the death of a land owner, the aneestral home, if small, was taken by some one of the children, who paid to his brothers or sisters a sum equal to the share of each in the home property, and thus the ownership of that parcel was retained in the hands of one person without division. Numerous instances of this nature could be eited, but only one, that of Jean Baptiste Beaubien, will be given here.
In this case the ancestor, Jean Baptiste Beaubien, held a large traet of land on what are now Beaubien and St. Antoine Streets. Upon his death it was eon- eluded that the farm was too large to be owned by one son, and so it was divided by a line running northerly from the river the entire length of the farm, three miles, and one portion allotted to Lambert Beaubien and the other to Antoinc Beaubien, two of the sons.
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