USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 25
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It seems difficult, at this time, to tell when the court of common pleas ceased to exist. as no successor was appointed. In the summer of 1793, Mr. D. W. Smith, M. P. wrote from Niagara:
"Your common pleas, I understand, is reestablished and the bench, I am told, is to be filled by the Hon. Col. McKee and W. Macomb."
It is probable that Smith was in error, for there is no available evidence that Powell ever had a successor in Detroit. It is almost certain that Detroit had no other judge until the coming of Wayne in 1796. To prove the con- tinued existence of the court of common pleas during this period, there is an advertisement, hand written and probably placed on some convenient post or tree, notifying the public that by virtue of a writ of execution issued out by the court of common pleas. the sheriff, Richard Pollard, would sell the property of the defendant, Joseph Mainville, "at the church door of the Parish L'Assump- tion le vingt deuxeime day of September next," thus mixing his French and English to suit the natives. Attached to this notice was another that possibly had some legal significance at the time, but would scarcely be complied with under our law. It was as follows:
"All and every person having any prior claims by mortgage or other rights, are hereby required to give notice thereof in writing to the said sheriff before the day of sale."
At the present time the purchaser takes his own risk of outstanding prior claims when he purchases at such a sale.
Robert Forsyth, acting for George Sharp, complained that John Bowers, an
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engage of Sharp, had, September 26, 1794, refused to go to work as requested and stated that "he would prefer going to jail to obey his orders on that head." On this complaint, Bowers was arrested and brought before the justice. He answered that by his engagement he was not required to do farm work, such as he had been requested to do. He entered a counter complaint against Forsyth for assault, and for using abusive language. The justice' decision was: "Ad- judged that Bowers return to his duty to serve out his time agreeable to his engagement, but not obliged to go to work at farmer's work, and that Forsyth gives in bail to appear at the next quarter sessions of the peace to answer for having struck said Bowers."
The postscript to the decision settled the entire matter: "The parties have come before me and made up their disputes.
"John Askin J. P."
Two suits of John Askin and Jonathan Schieffelin, co-partners, against John Askin, were tried at the court of common pleas March 31, 1794, and a verdict rendered for the plaintiff. These suits were settled by the payment of two hun- dred and fourteen pounds three shillings seven pence, October 11, 1794.
This letter indicates the existence of this court in March, 1794, but before October of that year, Judge Powell had left Detroit, for his letter dated October 13, of that year, is written from Mount Dorchester. Mount Dorchester does not appear on any modern map. It is situated on the Niagara River, a short distance below the falls. "The ridge of land running along the border of the Niagara district called the mountain, was, in Governor Simcoe's time, by royal proclamation named Mount Dorchester." In this letter the judge stated that he had twice been to Newark to open the court of K. B. (King's Bench). The following is an extract from Judge Powell's letter of November 14, which was in reply to an inquiry from a justice of the peace at Detroit:
"Your favor of the 21st. ulto. covering a note of costs on a penal judgment and stating a question upon the demand, I rec'd. this day. As the case is stated as a magistrate for future guidance I am less scrupulous in offering my opinion than if the reference was merely individual.
"I am unacquainted with the terms of your police regulations since I was in Detroit. I cannot speak for the letter of them, but I know of no general law which gives you power to create offences and levy the penalties. The ordi- nance of Quebec, under which your former regulations were made, subjected the recovery of all penalties to suit in the common pleas, where, of course, costs were given in an action of debt. But I fear on a summary conviction, before a single justice out of session, no costs were recoverable by any statute prior to the 14th. of the King, which is the epoch of our criminal code, altho, I think, by a subsequent statute, the 18th, Geo. 3d, some provision is made for costs in such cases, but it has not force of law here.
"It is a general rule of law that the jurisdiction of justices without the intervention of a jury, being contrary to the provisions of Magna Carta, must be derived from some statute, and on the same principle that the statute which gives the authority must be rigidly pursued. Therefore, in your case, if the Act, or Ordinance, makes no special provision for costs, none can be adjudged. In hazarding this statement of the law I am probably committing an impro- priety should I have misconstrued your letter and you prove a party, in lieu of the justice in the business, for the appeal, in all cases, gives to the K. B., so
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that, in justice to me, if you are yourself party, you will pay the costs and let the business sleep.
"Your very obedt. and humble servant,
"WILLIAM DUMMER POWELL."
THIRD SESSION OF FIRST PARLIAMENT
The third session of the first parliament met at Newark (Niagara) June 2, 1794, and was prorogued on the 9th of the following July. Only twelve acts were passed.
Through these acts and those of preceding sessions, we find the continued addition of the names of officers and offices that are not described in the acts, nor are there any provisions made for the election or choice of such officers. Their duties are not defined. We are left to suppose that the names and du- ties are taken from England and English laws and that the Canadians under- stood who they were, and did not need an act of parliament to provide for their introduction in Canada.
In the first act, relative to juries, are mentioned a clerk of the peace, bailiff, assize, nisi prius, district court, judge of assize or nisi prius and other offices and officers that are nowhere described in the Canadian laws. We know, from common usage, who these officers are, and the duty they have to perform, but it seems strange that the duties are not laid down in their early statutes.
No person was allowed to serve on more than one jury in any year.
COURT OF KING'S BENCH
The second act provided for the establishment of a superior court of civil and criminal jurisdiction, and to regulate the court of appeals. This was called the court of King's Bench, and was a court of record of original jurisdiction, to be presided over by a chief justice and two puisne justices. Court was to be held at Newark, and the four sessions were to be known as Hilary, Easter, Trinity, and Michaelmas terms. Proceedings were, of course, in the English language, but a summons in the French was to be served where the defendant was a Frenchman or French-Canadian.
The court of common pleas was abolished and the cases pending therein were transferred to the court of King's Bench. The governor, lieutenant- governor or the chief justice, together with any two or more members of the executive council of the province, were to compose a court of appeals. Appeal could be taken from the court of King's Bench to the court of appeals in all cases where the subject matter in controversy exceeded one hundred pounds. A fee bill for the attorney-general, clerk, marshal, crier and sheriff was pro- vided by this act.
The next act provided for a district court in each district, with a judge to be appointed by commission. This court was to be held in the town where the court house was built, "excepting in the western district, where the court shall be holden in the town of Detroit." A fee bill for the attorney, sheriff, clerk, crier and judge was given in the act.
The code of procedure was supposed to be very simple and probably was simple until the learned lawyers began to copy the prolix forms of the old coun- try in their pleadings.
Chapter Four provided that the governor might license not exceeding six-
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teen persons to act as advocates and attorneys in Upper Canada. The roll of advocates should be kept among the records of the court of King's Bench.
FOURTH SESSION OF FIRST PARLIAMENT
The fourth session of the first parliament met at Newark July 6, 1795, and was prorogued August 10, 1795. There were only five acts passed at this session. The first act appointed a board of surgeons who had powers to grant licenses to practice "physic, surgery and midwifery" in the province. Per- sons attempting to practice without a license were fined ten pounds.
The second act was aimed at persons who had been citizens of Canada or England and who had resided in the United States as citizens and had returned to Canada and again become citizens of that country. All such persons were ineligible to either house of parliament.
The fourth act amended the law establishing the court of King's Bench by providing that this court should hear all actions brought for smuggling.
The fifth chapter established the office of register of deeds, thus preceding, by one year, a nearly similar law put in force in Detroit upon the evacuation of the place by British troops.
The laws of the two countries are very similar in many of the provisions, but there are some matters of difference. The office hours of the register were fixed at from 9 o'clock in the morning till 1 o'clock in the afternoon; a separate record book should be kept for each township; the register's fee should be one shilling for each folio of one hundred words. Conveyances were not recorded at full length, as in modern records, but an abstract only of the paper was entered by the register. In this particular, our own laws, at a later date, fol- lowed the provisions of the Canadian statutes, though, as a matter of fact, no such abstract or extract was ever recorded in Wayne County subsequent to 1796. No matter what the terms of the statute were, every conveyance was recorded at full length under our territorial and state laws. Thus ended the first parliament of Upper Canada.
The members of the legislative council of the first parliament were: Will- i m Osgoode, James Baby, Alexander Grant, Peter Russell, members of the e e utive council, and Robert Hamilton, Richard Cartwright and John Munro, members of the legislative council. The members of the lower house have al- ready been given.
William Osgoode was born in England in 1754 and graduated from Ox- ford in 1777. He studied for the law and was called to the bar. He came to Upper Canada as chief justice in 1792. He returned to England in 1801 and died in 1824, never having married. Osgoode Hall in Toronto was named in his honor.
James Baby was born in Detroit August 25, 1763, his father, James Duperon Baby, being one of the men who rendered great assistance to the garrison at the place during the siege by Pontiac in 1763. James was an extensive trader in Detroit during the term of British occupation, and his name is frequently found in the preceding pages. He took a prominent part in the War of 1812 in the British cause, and suffered great losses in those trying times. After the war was over he was appointed inspector-general and removed to York (Toronto), where he continued to reside until his death on February 19, 1833.
Alexander Grant was another Detroit citizen. Judge R. S. Woods, of Chatham, Ontario, a grandson of Alexander Grant, says in his "Harrison Hall
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and Its Associations" that Grant was the fourth son of the seventh laird of Grant of Glenmoriston, Inverness, Scotland. He came to America with General Amherst in 1757 and was appointed to the command of a vessel on Lake Cham- plain. Ile came to Detroit at a later time, and in 1774 married Therese Barthe. John Askin married a sister of Therese (Archange) and the two families were always intimate. Grant owned a farm in Grosse Pointe, Wayne County. He was given the command of the Canadian or British naval department on Lake Erie and was commonly called the "Commodore of the Lakes." He died in 1813, leaving eleven children. His only son, Alexander, died unmarried, so that the family name has become extinct, or rather the family line. John Grant was an adopted son, but reared in the family of Commodore Grant. Judge Woods says that James Baby and Alexander Grant were associates of Judge Powell in 1792, but there existed no Canadian law which provided for side judges.
Under the marriage laws of Upper Canada, as above related, it became necessary for persons who were not married by the Catholic priest, to make a sworn statement of their marriage and file a copy with the clerk of the peace. There exists the original affidavit made by Therese Barthe, of her marriage with Alexander Grant. They were married September 30, 1774. Their eldest daugh- ter, Therese, was born February 13, 1776, and their other children living at the date of the statement, February 27, 1798, were: Archange, Phillis, Arabella, Anne, Elizabeth, Nelly, Alexander and Maria.
FIRST SESSION OF SECOND PARLIAMENT
Seven acts were passed at the session of the second parliament.
First, an act regulating coins. This fixed the value of coins of other coun- tries and provided a punishment for counterfeiting, but did not provide for any native coining.
The second act regulated the manner of drawing juries.
The aet for licensing public houses was amended, in order to permit licenses to be obtained at any season of the year, and providing a punishment for those who sold liquor without a license.
The fourth aet was the only one of interest to Detroit. This act repealed the former aet providing for the holding of the court of quarter sessions in De- troit and Mackinac, and provided that these courts in the western district should be held in the parish of Assumption (Sandwich) until such time as it should seem expedient to the magistrates to remove and hold the same nearer to the island, called the Isle of Bois Blane, being near the entrance of the Detroit River. "As it seems not to be any longer expedient to hold the said court in the town of Detroit aforesaid, be it enacted that the district court shall be holden" in the same place the courts of quarter sessions are held. This act was passed in contemplation of the treaty of 1794, which, although already adopted, did not take effect until the summer of 1796.
It may not Le generally known that Bois Blane Island was, at one time, a part of the territory of the United States. In the first treaty fixing the bound- ary line between the United States and Canada, it was provided that the line of navigation should be the dividing line. The line of navigation was between Bois Blane Island and the Canadian shore, and this was accepted, but subse- quently-June 18, 1822-commissioners who were appointed to run the bound- ary line anew, concluded that the island was too near the mainland to be pos- sessed properly by another nation, and they conceded the claim that it ought
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to belong to Canada. It was given to her, but it was at the same time provided that the waters on both sides of the island should be equally free to both nations.
The law providing for bounties for killing wolves and other wild animals was repealed by the fifth aet.
The sixth aet provided for the regulation of commerce between Upper and Lower Canada, and the seventh and last aet provided for the payment of wages to the members of the house of assembly. This ends the legislative connection between Detroit and Canada. Parliament was prorogued but a few days before the British army evacuated Detroit and the post passed under the control of the laws of the Northwest Territory.
The election of the second parliament did not take place until August, 1796, a short time after Detroit passed under the government of the Northwest Territory, and hence no member of that assembly came from Detroit. Our village, however, may make some elaim to representation in this parliament, for one of its members was Thomas Smith, who, before and after the election, resided in Detroit. He was a surveyor and mapmaker of some note and a citi- zen of considerable importance. His daughter was the wife of John MeDonell, who lived at the northwest corner of Shelby and Fort Streets, where after- wards stood the Whitney Opera House and where now stands the U. S. post- office.
We have now reached the time when Detroit ceased to be under the control of Canadian laws, and passed under the government and laws of the territory northwest of the Ohio River.
(Continued in next chapter)
CHAPTER XII LAW AND ORDER IN EARLY DETROIT (Continued)
BY CLARENCE M. BURTON
ORGANIZATION OF NORTHWEST TERRITORY-TERRITORIAL LAWS AND COURTS- JAY'S TREATY-WAYNE COUNTY ORGANIZED-NEW TERRITORIAL LAWS-FORMA- TION OF COURTS-PETER AUDRAIN-ORPHAN'S COURT-ALLEGIANCE TO GREAT BRITAIN-JOHN ASKIN'S PETITION OF ALLEGIANCE-A COUNTER PETITION- DISAFFECTION AMONG TROOPS-SENTIMENT AGAINST ASKIN-DETROIT UNDER MARTIAL LAW-LIBEL AGAINST JUDGE MAY-EXECUTION AGAINST DEBTORS' PROPERTY-EARLY ESTATES OPENED-QUARREL IN COMMON PLEAS COURT- SECOND GRADE GOVERNMENT INSTITUTED-GRAND JURY REPORT-COURT FEES-DIVISION OF NORTHWEST TERRITORY-SECOND ASSEMBLY ELECTION -CISSNE PROTEST AGAINST MCDOUGALL ELECTION-MEETING OF SECOND ASSEMBLY-BILL TO ALTER BOUNDARIES-ITS AMENDMENT-INCORPORATION OF DETROIT-APPOINTMENT OF TOWN OFFICERS- CONGRESSIONAL DELEGATES -FORMATION OF MICHIGAN TERRITORY-GOVERNMENTAL APPOINTMENTS- FIGHT FOR TERRITORIAL ORGANIZATION-LAND TITLES-BRITISH CITIZENS IN DETROIT-LOYAL AMERICANS IN DETROIT- GENERAL CONDITIONS, 1796-1800- JOUET'S DESCRIPTION OF DETROIT-MCNIFF'S WRITINGS-RELIGIOUS MATTERS -PUBLIC MORALS AT LOW EBB-SOLDIERS THE WORST OFFENDERS-TERRI- TORIAL JUDICIAL DISTRICTS-SUPREME AND OTHER COURTS-THE PROBATE COURT-COUNTY COURTS-CRANE VS. REEDER: A NOTABLE LAW CASE.
ORGANIZATION OF NORTHWEST TERRITORY
The "Territory of the United States North West of the Ohio River," gener- ally known as the Northwest Territory, was organized under the ordinance of 1787. The legislative authority was vested in a governor and three judges, and the judicial affairs were presided over by the same three judges. The three first appointed October 16, 1787, were: Samuel Holden Parsons, James Mitchell Varnum and John Armstrong. Armstrong declined the appointment and John Cleves Symmes was chosen in his place February 19, 17SS. General Varnum had sought the Ohio climate for his health, which had been undermined by his soldier's life in the Revolution, but he soon died and William Barton was appointed to succeed him. Barton declined and George Turner took his place by appointment September 11, 1789. General Parsons met his death by drowning and on March 31, 1790, Rufus Putnam succeeded him and he in turn was succeeded by Joseph Gilman. Return Jonathan Meigs, Jr., was appointed in place of George Turner, who resigned February 12, 1798.
The governor and judges could not enact laws, but they could adopt laws from any of the original thirteen states to meet their requirements. Whatever
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laws they thus adopted had to be submitted to Congress and the acts were to remain in force unless and until disapproved by the national body. The governor and judges did not comply strictly with the provisions of the ordinance, but enacted many new laws, and they undertook to defend their actions on the ground of necessity, as they claimed they could not find laws already enacted in the thirteen states, which were adapted to all of their needs. Trial by jury was provided by the ordinance of 1787, in all cases where demanded.
TERRITORIAL LAWS AND COURTS
A code of laws was established in 1788 which practically covered the needs of the territory. Only a few of these adopted laws will be referred to here.
The governor was authorized to appoint all necessary justices of the peace, and from these appointments he was directed to select not less than three nor more than five in each county to form the quorum for the court of quarter sessions of the peace. The justices of the county, or any three of them, at least one of whom must be of the quorum, could hold court.
Misdemeanors were to be tried before the justices. All other criminal trials, less than capital cases and criminal cases where imprisonment for more than one year was the penalty, were to be tried before the quarter sessions.
The County Court of Common Pleas was established in each county to hear all civil cases. The governor was to appoint not less than three nor more than five judges in each county to preside over this court, which should be a court of record. A single judge of the court of common pleas could hear and determine cases where the amount involved did not exceed five dollars.
A judge of a court of probate was to be appointed for each county, to have charge of estates, probate wills and appoint guardians to minors. The probate judge could call to his assistance two of the justices of the court of common pleas, and the three judges constituted the probate court and could render final decrees. The probate judge should record all wills. A clerk was provided for the probate court to keep the records of the office.
The general court for the territory should be presided over by the judges appointed by the President. This court was termed the supreme court. Mar- riages could be performed by the judges of the general court (supreme court) or of the court of common pleas, minister of any denomination, or by the Society of Quakers in their public meetings. It was not until August 1, 1792, that justices of the peace could perform marriages. A certificate of the marriage was to be sent to the register of the county and entered on his records within three months after the marriage.
Every county should have a courthouse, jail and pillory, whipping-post and stocks. In the jail there should be separate compartments for confining debtors and criminals.
A schedule of fees fixed the compensation of public officers. One of the provisions of this act permitted the person to whom a fee was to be paid to demand a quart of Indian meal as an equivalent for each cent of the fee; thus, if the fee was one dollar the officer could demand one hundred quarts of Indian meal in lieu of the money, but he could not be compelled to accept anything except specie.
The justices at the court of quarter sessions were authorized to divide the county in which they were located into townships and to appoint a constable in each township. The justices were presumed to have their clerk enter their
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proceedings on the docket of the court. The justices of the court of quarter sessions were to appoint overseers of highways and township clerks.
The common law of England was declared to be in force except as modified or changed by statute.
The general court and circuit court had the exclusive right to grant divorces, and there were but two grounds for absolute divorce; these were adultery and impotency.
One of the judges of the supreme court was to hold court in each of the counties of the Territory and this court was termed the circuit court.
The court presided over by the judges of the supreme court was called the general court, and an appeal would lie from the courts of quarter sessions and from any other court to this body.
Imprisonment for debt was permitted, but was limited unless the debt was fraudulent, or the debtor concealed his property.
These, in brief, were the laws that related to the formation of the courts which were in force at the time of the admission of Detroit to the government of the Northwest Territory.
JAY'S TREATY
Detroit was in the territory which was conceded to belong to the United States under the treaty of 1783, but the British continued to hold possession of it in contravention of our treaty rights. This was a constant source of annoy- ance to both governments, and a subject of heated discussion which occasionally led the nations to the verge of war.
In 1794 John Jay was sent to England in order to bring about a satisfactory adjustment of the differences between the nations and the surrender of the post still held by Great Britain. Jay's treaty was signed November 19, 1794, and was conditionally ratified by Congress June 24, 1795. England agreed to with- draw all of her troops within the boundaries of the United States by June 1, 1796. All settlers and traders within the United States could retain their property unmolested and were at liberty to remain, or remove, from the country at their pleasure. The provisions of the treaty relating to citizenship read as follows:
"And they shall make and declare their election within one year after the evacuation. And all persons who shall continue there after the expiration of the said year without declaring their intention of remaining subjects of his Britannic majesty, shall be considered as having elected to become citizens of the United States." (In this connection see the several cases of Crane vs. Reeder in Michigan Supreme Court Reports.)
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