USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 22
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His protracted illness made him fretful and petulant with everyone he met. They reciprocated by disliking him. When he was requested to send the records, he sent them with a letter of protest. In his letter he said that he had delivered the village records to Lieutenant Smyth of the Thirty-first Regiment; that the people expressed some concern at their being sent away from the place and said that many must suffer in their private affairs for want of ref- erence to them. In obedience to instructions from Haldimand, Hay had pub- lished permission to all persons who chose to leave Detroit to do so, and or- dered those who did not intend to reside permanently to depart at once. His proclamation was torn down and another put up in its place. A reward of twenty pounds was offered for the discovery of the person who tore down the proclamation.
"I cannot conceive why anybody should do a thing of the sort, except some insolent fellow who chose to show how little he or others think of my authority here," wrote Hay, "but if the person is found and I have sufficient proof, I shall send him or her to Montreal to be dealt with as your excellency shall please to direct."
He further said that there were many persons at Detroit, who were still designated as prisoners of war, through the war had terminated more than a year before. These persons were always at liberty to leave the place, but some remained in hopes of getting their children and relatives who were detained by the Indians, and some could not go, such as orphans and women, and these still obtained provisions from the military department.
BRITISH VIEW OF DETROIT IN 1787
In another paper is a report dated August 3, 1787, made by Maj. R. Mat- thews to General Haldimand. Major Matthews was sent to examine the western posts and this letter is in the line of the official reports he made as the result of his investigations. He arrived in Detroit June 9, 1787. The time taken to arrange the militia and examine titles to lands delayed his departure so much that he feared he would have to return with snowshoes. In reading these letters one is forced to see American progress through British eyes, and the prospect is strange and very often untrue, or visionary. Detroit belonged to the United States, but English troops were in possession of it in a time of peace, and Great Britain refused to vacate and carry out the solemn agreement she had made in the treaty of Paris in 1783. It was very evident that she wanted to avoid carrying out the treaty which Oswald had thus made for her and would have taken advantage of any excuse. Major Matthews reports as follows:
"There are lately arrived at Post Vincennes 500 continental troops under Colonel Harmar, a very elever man, who had been long destined for the direc- tion of affairs upon the Wabash-and it is confidently asserted that there are two other armies to co-operate from Wheeling and Muskingum upon the Ohio. The object, it is said, is to establish posts at the Miamis town (the great center and channel of the trade of this quarter), the Glaze, Sandusky and Roche- debout. Mingo they have sometime occupied as a post and built a fort.
| "Presqu' Isle (now Erie, Pa.) they are also to occupy as a post. Though the Indians insist upon it, I have not a conception that the Americans will attempt this post (Detroit), nor do I think it would be worth our while to dispute it with them if they succeed in establishing the above posts, though I believe we have not been in better situation to do it for some years, Fort Lernoult being in
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perfect repair and having six companies nearly complete; we have six com- panies of militia consisting of nearly 800.
"Had Mr. Oswald or even Lord Landsdown seen this delightful settle- ment, they surely could never have signed away the right of the nation to it. In point of climate, soil, situation and the beauties of nature, nothing can exceed it, and yet for want of good order and legal protection (which would bring respectable settlers) the trade and even cultivation are at the last gasp. Individuals possess immense tracts of land upon general grants, sell out in detail to poor wretches for £100 for three acres in front by forty deep for which the farm is at the same time mortgaged. The settler labors for a few years with only half his vigor, paying and starving all the time and, ultimately, from debts on every hand, is obliged to give up his land.
"In trade the lowest of all the professions resort to these obscure places, they are without education or sentiment and many of them without common honesty. They are perpetually overreaching one another, knowing that they are too distant for the immediate effects of the law to overtake them. The only recourse in all matters in dispute is the commanding officer, for our jus- tices of the peace, it seems, are not authorized to take cognizance of matters relating to property, on which almost every difference arises, so that if the com- manding officer is indolent or indifferent he will not hear them at all, or if he does hear and decide, his judgment, though perhaps equitable, may be very contrary to law, and hereafter involve him in very unpleasant consequences. Besides that, acting in the capacity of a judge, his whole time is so employed that he 'cannot pay the necessary attention to his professional duties. It is much to be wished that some mode for the prompt and effectual administra- tion of justice were established, for the want of it is a temptation to many to take advantages and commit little chicaneries disgraceful to society and dis- tressing to trade and individuals. In all matters where I cannot clearly de- dide, I make the parties refer to arbitration, binding themselves by bond to submit to the decision."
COURT OF COMMON PLEAS ESTABLISHED
Affairs had come to such a pass for want of laws and courts at Detroit that the council at Quebec took up the matter and appointed a committee of mer- chants at Montreal to investigate the matter and report a system of procedure. This committee, in its report, stated that Detroit and the upper posts were indebted to Montreal more than three hundred thousand pounds sterling, and that these posts should be kept in possession by the government, for if they were given up, a very great proportion of that large sum would be lost, to the hurt of the nation and the ruin of numberless individuals.
They proposed that Detroit and Mackinac should be erected into a sepa- rate district and that a court of civil jurisdiction should be established, to be called the court of common pleas. There should be one judge, whose de- cision should be final for all matters in dispute under fifty pounds, but in all other matters an appeal should lie to the court at Montreal. Appeals should be in the form of a new trial. Depositions of witnesses at a distance could be taken to be used at such trial. The judge should reside at Detroit, but he should go once a year, say in May, to Mackinac, and should there remain until July 25th, to hear all cases brought before him, where the amount involved did not exceed one hundred pounds. The property of fraudulent debtors could Vol. I-14
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be seized on attachment, and only released upon security being given to abide the final decision of the court.
As a further reason for the establishment of Detroit as a separate distriet, the committee stated that :
"Detroit is become a settlement, both of great extent and great conse- quence. It annually fits out a vast trade to the interior posts circumjaeent to it, at which, in the course of carrying on, disputes and differences invariably arise, to determine which, for want of a judicial power on the spot, they are obliged to have resort to the courts of Montreal."
They estimated that between the date of sending for a summons from Detroit, as the commencement of a suit, fully six months would elapse be- fore the defendant could be served properly, and in this time he could dispose of his property and leave the settlement. Not less than forty suits a year, all above ten pounds were instituted by persons residing at Detroit against others of the same place, and not above one-fourth of that number were suc- cessfully carried forward, owing to the great delay in serving processes.
"We believe a judge there would have not less than 300 or 400 causes a year to determine. For their present state, they have no means to enforce payment from their debtors, it is ou their honor and honesty they must rely- a sorry dependence in a country where there is neither a power to check or re- strain the most dissolute and licentious morals."
It was in response to this report that the council authorized the forma- tion of a new judicial district, to include Detroit, which was established by Lord Dorchester July 24, 1788, and called Hesse. On the same day he ap- pointed the following as justices of the Court of Common Pleas: Duperon Baby, Alexander McKee and William Robertson. He at the same time appointed eight justices of the peace, namely: Alexander Grant, Guillaume La Motte, St. Martin Adhemar, William Macomb, Joneaire de Chabert, Alex- . ander Maisonville, William Caldwell, and Mathew Elliott. The appointed sheriff was Gregor McGregor. The elerk was Thomas Smith and the coroner George Meldrum.
Every one of these names is familiar to all who have read Detroit's early history. The list is about equally divided between the Canadians and the English. Of the list, Joneaire de Chabert and George Meldrum only remained on the American side during their lives, after the British occupation ecased. St. Martin moved to Vincennes. Smith remained here many years; he be- eame a surveyor and acted in that capacity in planning the city after 1805, but he eventually went to Canada and died in Windsor. Macomb lived in Detroit and died a short time before the evacuation in 1796. All of the others left Michigan and most of them lived along the south shore of the Detroit River in Canada.
OPPOSITION OF ENGLISH TO NEW COURT
No sooner had the news of the appointments reached Detroit than there was a popular uprising in opposition to the government. A public indigna- tion meeting was called and a long protest drawn up, signed by the English residents. The opposition was not because of the individuals named as judges, but because they were not understood to be qualified to fill the office properly. Two of the judges-eleet, Robertson and Baby, personally accompanied the protest to Quebec, and Robertson read it in the council chamber in that city
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on October 24, 17SS. Some of the important points in this protest were as follows:
Canadians, with the exception of Mr. Baby, were not concerned in trade and were, consequently, very little concerned in the courts of law. Mr. Baby did not think it proper that he should sign the protest as he was named as one of the judges. He explained the method of arbitration in common use at De- troit by saying that a general arbitration bond was entered into and every person who signed it bound himself to abide by the decisions of the arbitrators. (They sat in rotation). Those who submitted their differences to the arbi- trators could not be compelled to abide by their decisions, yet the dread of the consequences of refusing to submit to those determinations gave force to their awards, for those who would not obey could not recover debts and the com- manding officer refused to grant them passes for their canoes to the Indian country. Yet still there were people who refused to abide by their decisions, not from unreasonableness nor the injustice of their awards, but from a want of inclination to pay their debts. It was agreed by those who signed the gen- eral arbitration bond to pay each an equal portion of the expenses of any suit of law which might be carried on against any of them in consequence of their decision in this arbitration court. People who lived in Detroit were com- pelled to submit or live there as outlawed. Robertson said further that some of the persons who were named as justices of the peace were ignorant and il- literate. Maisonville and Elliott could mechanically sign their names, but they could neither read nor write. Caldwell had not a good education.
There were four thousand people in and about and dependent upon Detroit. The remedy advised by Mr. Robertson was the establishment of a Court of Common Pleas with a judge who lived in Detroit and who might visit Mackinac once a year to hear causes there. The judge ought to be versed in the law and receive a salary and devote his entire time to his official duties.
In reply to a question as to the public buildings in Detroit or Mackinac, Mr. Robertson said that there were none at Maekinae, but at Detroit there were two French churches (one on each side of the river) but no English church, for the English never had a church in the upper country. There were no bar- racks. Fort Lernoult, the government house where the commanding officer usually resided, the council house, where the Indians assembled and delivered their speeches, the block-houses at the different angles of Detroit within the piekets and the water side, the naval dockyard and the necessary buildings belonging to it without the piekets, on the east side of the town. These were the public buildings of Detroit.
It was deemed necessary for the English Government to retain possession of Detroit if it wished to hold the fur trade. As a conclusion to the investigation, it was sought to ascertain how, in the past, laws had been administered in Detroit, and in answer to the question Robertson said:
"Before the conquest (1760) if any laws were followed or administered, they necessarily must have been those of France or what prevailed in the rest of the province; from the conquest to the passing of the Quebee Act (1774) I have understood from the people there, it was the English law that had been considered as the rule of decision, but I believe there have been few instances since the conquest to the present time of any law whatever having been ad- ministered there."
At the conclusion of the investigation a draft of a report was drawn up by
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the council and submitted to Lord Dorchester. It was the opinion of the council that a competent person for judge could not be found in the district, and that when the proper person was found and appointed, he should receive a salary of five hundred pounds, without fees. They reported against the project of arbitration as formerly carried on.
As two of the judges who had been appointed had resigned, it became neces- sary to select another person to fill the vacancy and the purpose this time was to select one judge instead of the three who had been appointed, but who had never acted. Lord Dorchester, in discussing the qualifications necessary for the position in a letter to Lord Sydney, said:
"At Detroit, where much property is circulated in commercial transactions in the Indian trade, cases are more complicated and increased by the mixture of Canadian and British settlers and the diversity of these customs. The administration of justice in that distriet will, therefore, require talents which may be difficult to find without a more ample encouragement than what may be sufficient in the other parts of the province. The commandant at Detroit had hitherto ordinarily been under the necessity of interfering for the preserva- tion of order in the settlement."
FIRST JUSTICE OF THE COMMON PLEAS
Early in 1789, Lord Dorchester appointed William Dummer Powell the first justice of the common pleas in the district of Hesse, and directed him to proceed to Detroit as soon as the season would permit, to make that place his home. He also appointed a land board to consist of Major Clere, or the officer commanding at Detroit, William Dummer Powell and any one of the following named justices of the peace, Duperon Baby, Alexander McKee, William Robert- son, Alexander Grant, and St. Martin Adhemar. Concerning the choice of Judge Powell, Dorchester said that the appointment did not take place until the persons originally appointed among the principal inhabitants of the district had deelined the trust, nor until the necessity of a professional man to preside in the court had been fully ascertained. He said that Mr. Powell was of the Middle Temple in 1776 and had borne arms under General Gage at Boston, that he was a considerable sufferer by his loyalty and cut off from the prospect of a valuable family inheritance, that he came to Canada in 1779, recommended by the Secretary of State. In conclusion Dorchester said:
"A man of confidence and abilities is very desirable for that distant part of the province, and I know of no character at the bar here (Quebee) better qualified or more likely than he is to do justice to the trust reposed in him."
DIVISION OF CANADIAN PROVINCES
It was proposed in 1789 to divide the Canadian possessions into two provinces to be termed Upper and Lower Canada. Each province was to have a legis- lature to be composed of a council, of which the members were chosen for life, and a house of assembly, to be elected. In Upper Canada there were to be not less than seven members of the council, to be appointed by the king. The lower house was to contain not less than sixteen members to be returned by distriets, the limits of which were to be fixed by the governor. Members were to be elected by citizens who were landowners or ientpayers. They were to hold office for four years unless the assembly or parliament should be sooner prorogued by the governor.
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The legal division of the two provinces took place on December 26, 1791, but the parliamentary elections did not take place until the following year. In the meantime Lord Dorchester had left Canada for England and the direc- tion of government was left with the lieutenant-governor, Alfred Clarke.
One of the important points under discussion in the formation of the two new provinces was the description of the territories embraced in each province. This matter was one of great interest to the English government at this date. Mr. Grenville stated that "if the line of demarcation was that mentioned in the treaty of 1783, Detroit, which the infraction of the treaty on the part of America has induced his majesty to retain, would be excluded from the upper province, while if it was included, by express terms, by an act of the British parliament, it would probably excite a considerable degree of resentment among the inhabitants of the United States and might provoke them to measures detrimental to our commercial interests. The proper solution of this difficulty would be to describe the upper district by general terms as-all the territories possessed by and subject to his majesty west of the boundary line of Lower Canada."
Between the date of the appointment of Powell and the division of the province, the affairs of the upper country were conducted under the act which gave the governor the appointment. The act for the division of the province omitted to make any provision for the management of affairs during the interval between the passage of that act and the first meeting of the legislative council. John Graves Simcoe was appointed lieutenant-governor of Upper Canada, and he issued a proclamation, dated July 9, 1792, for the care of the province in this interval. He directed that the "judges, justices and all other of our civil officers, who, on the 26th day of December last (1791) held offices or employ- ments, judicial or ministerial, within that part of our late province of Quebec, which now constitutes the province of Upper Canada, should continue in their respective offices and employments." The proclamation, of which the fore- going is an excerpt, was sent up to Detroit by D. W. Smith, enclosed in a letter which will be copied in full.
PARLIAMENTARY ELECTION IN DETROIT
The letter relates to one of the most interesting incidents that ever took place in Detroit, the clection of a member of parliament. This is the only excuse for including so long a document. David William Smith, the writer of this letter, was born September 4, 1764, and was the only son of John Smith and Anne, daughter of William Waylen of Rowde Hill, Wiltshire, England. The elder Smith was commandant at Niagara, Canada, and died there in 1795. David was an ensign and subsequently captain, in the Fifth Foot. He was an attorney, or barrister, in Upper Canada and was also surveyor-general. He was a member of the first three Canadian parliaments and speaker of the house. He was created a baronet in 1821. The letter is as follows:
"Niagara 26 July, 1792.
"My Dear Sir: The governor's proclamations are arrived dividing the upper country. The N. county is called Essex, and is bounded on the east by the carrying place from Point au Pins to the River La Tranche (Thames) bounded on the south by Lake Erie and on the west by the River Detroit to Maisonville's mill, from thence by a line running parallel to the River Detroit and Lake St. Clair, at the distance of four miles until it reaches the River La
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Tranche, thence up the said river to where the carrying place from Point au Pins strikes that river. This said county of Essex, with the adjoining county of Suffolk (in which there are no inhabitants) sends one member. Those who have certificates (for lands) only, I understand, can vote. This tract compre- hends the new settlers on Lake Erie (Amherstburg) who have generally certifi- cates, Monforton's company, who have none except they have recorded them sinee my departure, and Maisonville's company to the mill, in this last place there are inhabitants on twelve acres front just above the church, who will vote by reason of their having French deeds 'en roture' and those settled on the South side of River La Tranche, a few of whom have certificates and where I myself am a freeholder. This damned election business seems to bind me to the county, for you know I am not fond of deserting any cause I undertake, and that of the public is most dear to me. Should I be returned without an undue election or the appearance of party or bribery, I shall be most happy, and in that case I beg an ox be roasted whole on the common and a barrel of rum be given to the mob, to wash down the beef. You will draw on me for the amount. I should have great pleasure in helping to frame laws for lands which I have had so much pleasure in laying out. Mr. Pollard who is appointed sheriff, is returning officer. The writs are issued this day and returnable the 12th Sept. I depend a good deal on your goodness, favor and affection in this business and hope I need not make any apologies on that score. As I have begun the canvas I am determined to go through with it, and should I succeed I hope to support my character after- wards. We shall not certainly have the province there four years, so that where- ever the seat of government may be, or whatever may be the destination of the regiment, I make no doubt that I shall be able to attend the council and assembly yearly. My having done the settlers' business without emoluments from any quarter, should be some inducement to them, on the score of gratitude, to return me. I rather think that it is intended that the people who have French grants , on the garrison side should vote, as the description of the county of Kent com- prehends a great deal and sends two members. It is said to contain all the country (not being territories of the Indians, and not already included in Essex and the several other counties described) extending northward to the boundary line of Hudson's Bay-including all the territory to the westward and southward of the said line to the utmost extent of the county commonly called or known by the name of Canada.
"Should candidates to represent this county go a begging and you find I have no chance for Essex, I shall be proud to be returned for this county, but as the French people know little of me I have not any hopes on that seore. I am very ill at present, myself, or I would certainly go up to Detroit, but if the people are sincere, that is unnecessary and this will give it a fair trial. You will do me a service by delivering to Mr. Pollard the names of those capable to vote, which you can get from a small register in the land office, marked or rather indorsed, 'C'ertificates granted' and another indorsed 'French grants en roture.'
"If any Monforton's or Maisonville's company have received certificates since my departure, I will be thankful to you to use your influence with them. Col. MeKee has promised me his interest, so has the commodore (Alexander Grant) and I think I may depend upon Capt. Elliot, George Leith and a few others. When I wrote you last it was expected that Grosse lle, River Raisin and Rouge would have voted with the new settlers, but that is not the case.
"Jacques Parent, Lourent Parent, Claude Rheaum, Bapt. Le Due and John
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