USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 27
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"I am Sir, Your most obedient Humble servant, Peter Russell.
"John Askin, Esq.
"British Merchant at
Detroit."
Apparently Askin intended at this time to remove to Canada, for he ob- tained permission from Mr. Selby and Colonel McKee to remove his goods into a house belonging to Colonel MeKee at Sandwich, which was then partly occu- pied by a Mr. Wheaton. However, the change in the aspect of affairs at Detroit induced him to remain in that place and face the storm, and it was not until several years later that he finally removed to the home where he died, a short distance above the modern Walkerville, at a place called by him Strabane.
The summons served on Askin was returnable before the court of quarter sessions, but a case of so much importance would ultimately find its way to the circuit court or the general court. The two latter courts were presided over by the territorial judges appointed by the President. One of the judges was required to hold court in Detroit once cach year, and the court presided over by the single judge was called the circuit court and when the three judges set en banc it was termed the general court.
Outside of the local attorneys above named, the lawyer most famous through the Northwest was Jacob Burnet, of Cincinnati. Judge Burnet came to Detroit at every session of the circuit court held here before the admission of Ohio to statehood in 1803. The governor's son, Arthur St. Clair, Jr., was also an attorney-at-law. Askin now sought to enlist both of these men in his interest by employing them. He sent a confidential clerk, Robert Niehol, to Cincinnati with a retainer for both St. Clair and Burnet. Burnet was not at home and
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consequently was not seen by Nichol, but a retainer for him was left with the governor and to the latter a full statement of the situation was made by Nichol. A letter from young St. Clair was borne by Nichol to Mr. Askin, that assisted him getting out of his difficulty. He was also greatly assisted by Mr. Elijah Brush, who subsequently married Askin's daughter, Adelaide. Arthur St. Clair's letter was as follows:
Cineinnati Sept. 23, 1797.
"Dear Sir: I had the pleasure of receiving yours of the 29th. ultimo, by Mr. Niehol. I am extremely sorry for the want of harmony which is but too evident amongst you, but I flatter myself that all will yet be right. I have re- fused your retainer, fearful that the business to which it relates may oblige me to aet in my official capacity, at the same time I would observe that I think you need not give yourself any uneasiness about the affair. Mr. Niehol had instrue- tions to retain Mr. Burnett. He has accordingly left a fee with me for that purpose, as he is not at present here. If I shall be able, and there is any necessity I will assist him with pleasure, though the paper alluded to as containing the declaration of your intention of remaining British subjeets (as at present ad- vised) there will be little occasion of trouble.
"I am dear Sir Yours respectfully, A. St. Clair."
A short time after this Mr. Askin's name was placed upon the United Empire list as one of the Canadian patriots of the Revolution, and at a still later date (February, 1798) he was granted a license by Winthrop Sargent, acting governor, to maintain a ferry across the river at Detroit, thus showing that he retained the good will of the authorities on both sides of the river.
DETROIT UNDER MARTIAL LAW
The troubles General Wilkinson encountered at this time foreed him to put the settlement under martial law. He issued the following proclamation for that purpose. The proclamation follows the "general order" of the same date, with some additional directions.
"By James Wilkinson, Brigadier General and Commander in Chief of the Troops of the United States.
"A PROCLAMATION
"To guard the National Interests against the Machinations of its enemies, seeret or covert, Foreign or Domestic,-to baffle the Arts of Seduction which have led to numberless desertions from the Publie Service and to restrain licen- tiousness, and the infamous habits of drunkeness encouraged among the Troops by the disorderly conduct of the venders of Ardent Spirits.
"The Commander in Chief thinks it a duty appurtenant to the high trust reposed in him, a duty of indispensable obligation to deelare Martial Law within the line of the Guards and limits of the Fortifieations of the place, and he hereby in virtue of his legitimate authority, in conformity to the customs of armies, and to the established principles and precedents declares that all persons resort- ing to or residing within the limits aforesaid from and after the date of these presents shall be considered followers of the army and treated accordingly without respeet to persons or Allegiance. It is at the same time declared that
1
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no hindrance will be opposed to the functions of the civil magistrates and the due process of the Law of the Territory .-
"Given at Head Quarters Detroit 12 July 1797 (Signed) James Wilkinson.
"By Command (Signed) Lt. Lovell-
Major Brigade."
The issuance of this proclamation at once aroused the British element in the village and the following protest was sent to General Wilkinson a few days later.
"The Petition of sundry British Magis- trates, Merchants and others holding property residing in and resorting to the Town of Detroit. To His Excellency James Wilkinson Esquire General and Commander in Chief of the Armies of the United States of America & & & &
"Humbly Sheweth
"That your Petitioners having great Confidence in the Faith, Justice and Humanity of the American Government, and sensible to the Zealous Attach- ment of its Citizens to the Civil and Political rights, as Established by Law could not behold with indifference your Excellencys Proclamation (bearing date Detroit 12 July 1797) abridging them and your Petitioners of many invaluable priviledges flowing as well from the principles of the free Government as from the sacred sources of the public and solemn Treaty.
"That under the influence of these impressions your Petitioners indulged the pleasing hope that the public virtue of the Magistraey would have made such applications to your Excellency as might have produced some Mitigation of the Proclamation in question, disappointed however in their hopes and urged by the duty which they owe to themselves and to their Correspondents, and encouraged by the liberality and Candor of your Character, your Petitioners have ventured notwithstanding the peculiarity of their situation as Foreigners to submit to your Exeelleney the following Statements.
"Ist-That the Town of Detroit ever since the first establishment has been generally governed by the Civil Laws of the Society to which it belonged, that Martial Law as a System has never been established therein even during the periods of Hostilities, the Aets of the Legislature of Canada prove the former, and living testimonies are not wanting to prove the latter, it becomes therefore a fair inference that the Town of Detroit enjoys at least a prescriptive Charter of rights incompatible with the Idea of Military Garrison.
"2nd-That the Laws of the United States having in great measure pro- vided and its Constitution possessing energy sufficient 'for guarding the Nation's Interests' and it follows that whatever measures Suspend or Abrogate those legal established and inherent principles of the Constitution, such Measures must so far innovate on the common rights of the Citizens, but it appears to your Petitioners that the Proclamation in Question abolishes in many important cases the free operation of these Maxims, so far therefore your Petitioners humbly conceive that the Proclamation assumes a dispensing Power.
"3rd-That by the Treaty between Great Britain and America it is provided by the 11th Artiele that generally the Merchants and Traders on both sides
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shall enjoy the most complete protection and security for their Commerce, but subject always to the Laws and statutes of the two Countries respectively so says the Treaty, but the Proclamation declares that we are subject to Martial Law, that we are considered as followers of the Army and shall be treated accord- ingly without respect to persons or allegiance. Your Petitioners believing that under existing circumstances no implication favorable to the Proclamation can flow from the Laws or Statutes of the United States conclude that it of course tallys neither with the true spirit or letter of the Treaty.
"4th-That under the pressure of great public Calamity such as intestine or foreign war, natural and Civil rights are often suspended by the Legislative authority and under such circumstances, the Energy of Individuals and of constituted Authorities may be laudable and necessary .- these Acts are pard- onable only from necessity, not defended upon principle; but in the moment of peace and in the vicinity of a friendly Nation, your Petitioners are sorry that they cannot divine on what principles of expediency a suspension of such rights can be justified.
"5th-That Fort Lernault, and the Citadel being the only two spots where the Military Government has generally been exercised, that your Petitioners, possessing perhaps three-fourths of all the property either of a fixed or movable nature within the Town of Detroit residing there for the purposes of their Trade under the protection and condition of a public Treaty having not injured or wished to injure the United States, cannot but contemplate their present sit- uation in a light as repugnant to the feelings and Dignity of human nature as to the mutual harmony and friendship so strongly to be cultivated between Great Britain and America.
"Yet this Proclamation has been acted on, some have been tried by Courts Martial, some punished and others are said to be flying from their homes and property to avoid the Malice and Machinations of the vilest of mankind, Spies and Informers.
"Your Petitioners however aware of the danger arising from the General and indiscriminate permission to vend Spiritous liquors, do not consider the Garrison order ascertaining the mode of selling ardent Spirits to Soldiers in- jurious to their interests.
"From a review of the foregoing Statements your Petitioners indulge a hope that your Excellency will be pleased to modify and relinquish as much of the present System of Martial Law as is consistent with your prudence, wisdom and authority. They wish at the same time to be perfectly understood that nothing herein contained is meant to reflect on your Excellencys Com- mand, or on the Government of the United States. They also have a pleasure in assuring your Excellency that nothing is nearer their hearts than respect and obedience to the Laws of the United States, and also to the cultivation of every Act of Friendship and good Will towards its Citizens and they have the Honor to be with great respect and Esteem,
"Your most obedient
Oblidged and Humble Servants (Signed)
"John Askin, "George Sharp, "George Leith, "James Leith, " Angus McIntosh,
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"Alexr. Duff, "John McGregor,
"Richd. Pattinson,
"Robt. Innis, "George Meldrum,
"William Park,
"John Reid,
"James Fraser,
"William Hands,
"J. Borrel, "James McDonell,
"James MeIntosh."
" Detroit
24 July 1797"
The reply of the commandant has not yet been found, but the second letter of John Askin followed at once. It read:
"Detroit 31 July 1797.
"Sir:
"We are duly honored with your answer to our Petition of 24 Current; and have to thank you for your remarks and observations thereon, its trans- mission to the President of the United States is a circumstance which we con- template with the utmost complacency and satisfaction.
"Improper as it may be for us to intrude upon your time, yet we cannot but observe on an important Artiele; That the fifth paragraph of your answer contains matter which we are ready to do away by fair argument and proof incontestible.
"Unwilling however to shew a wide difference of opinion on almost every point of the present subject of discussion, it perhaps would better become us not to have already presumed so much but rather acquiesce in the present unpropitious system with the ealm resignation of men as emulous to maintain the Tranquility and safety of the State, as ardent in the Love of all the natural, indefeasible, and defined liberties of the people with whom they live.
"We have the Honor to be with great respeet
"Sir
"To Ilis Excellency James Wilkinson Esquire General Commanding the Armies of the United States."
(Signed) "John Askin, "George Sharp, "William Harfy, "George Leith, " Alexr. Duff, "James Leith, "John MeGregor, "Richard Pattinson, " William Park, "James Fraser, "James MeDonell, " Angus MeIntosh, "James MeIntosh, "Wm. Hands,
A petition was then made directly to the War Department and after eon- siderable delay the following reply was made to the petitioners, Louis Beaufait, James May. Joseph Voyer and Charles F. Girardin.
JAMES MAY Early merchant and trader
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"War Department, 8 August, 1799. "Gentlemen:
"I have the honor to acknowledge the receipt of your representation relative to the conduet of the Military Commandant at Detroit.
"I can assure you it is the wish of the Government to preserve to the Civil Authority its rights everywhere throughout the Territory of the United States and in no instance to countenance encroachments upon those rights by the Military.
"That the conduct of the Commandant at Detroit may undergo a regular and due investigation, I shall refer your remonstrance to Major General Alex- ander Hamilton, who I have no doubt will take proper measures to insure in future a perfeet propriety of conduct in the Military.
"I have however to observe that a Military Commandant has not only authority, but that it is particularly enjoined upon him to restrain the Soldiery in whatever may lead to Insubordination, endanger a Garrison or prove injurious to themselves, that with these views he may prevent a too frequent intercourse with the Citizens inhabiting at or near his post, which by affording oppor- tunities of intemperance would produce the worst of consequences, and that generally he has a right to give and enforce on his men under his command such orders as are necessary to their well being and the good of the service.
"I enclose a copy of the rules and articles for the better government of the troops of the United States, to which is annexed several military laws, among these 'An Act for the better organizing the troops of the United States and for other purposes' passed 3rd of March last.
"The 4th section of this Act, you will observe provides an exemption from personal arrests for any debt or contract-for all non-commissioned officers privates and musicians who are and shall be inlisted, and extends the same provisions to the militia or other corps who may at any time be in the actual service of the United States.
"To prevent this law from operating injuriously to the citizens it will be incumbent upon them to avoid credit to the soldiers.
"I am &
"James McHenry.
"To Louis Boufet (Beaufait)
"James May,
"Joseph Voyer,
"Charles Fras Gerardin (Girardin)."
Esquires.
LIBEL AGAINST JUDGE MAY
I have found some evidences of another interesting episode in the local history early in the year 1797. Not being able to explain fully the affair at present, I can give only the substance of the papers that have come into my possession relating to James May, one of the judges. A holiday ball had been given on the 28th of December, 1796, which was attended by some of the judges and on account of which some of the judiciary attendants had been ridiculed. It appears that some one had posted up a notice or proclamation which was considered a libel on the court or on the members who attended the ball. As there was no printing press in Detroit or in its neighborhood, this notice must have been in writing and only a few copies could have been circulated.
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Judge May accused William Smith and Robert Forsyth of publishing the libel, or of having a hand in it. Both of these men signed the declaration which John Askin passed around, declining to become citizens of the United States. Both men asserted their innocence of the libel and resolved to make Judge May prove his charge or answer for it. Each wrote a letter to the judge, and as they are nearly alike, one only need be given. It is as follows:
"Detroit Jany. 7, 1797.
"Sir:
"I have been informed that you have taken the liberty of publickly accusing me as an accomplice in a libel lately published at this place. I insist immediately to know your reasons for that presumption, otherwise I must take measures to clear my character in the eyes of those you were pleased to prejudice in it. "Robert Forsyth.
"James May Esqr.
"Detroit."
In addition, Smith requested the judge to meet him at Mr. Dodemead's in the evening to settle the matter, and ended his letter with a statement that he would wait at Dodemead's till eight o'clock in the evening.
Dodemead's was a famous resort, inn or boarding-house, whatever it might be termed, located on St. Ann Street, near the southeast corner of the present Jefferson Avenue and Shelby Street. St. Ann Street was very narrow at this point, not more than fifteen feet, and the house of John Dodemead was located within the limits of the present Jefferson Avenue. It was here that the courts were held in later times and was the rendezvous for all the citizens who wished to spend the evening in convivial company. At this time the courts were held in the house of Thomas Cox.
Judge May was a large, heavy man, weighing more than three hundred pounds. His avoirdupois was not in excess of his dignity as a judge, and he considered it beneath his official position to reply to either Forsyth or Smith. If he was in the habit of visiting Dodemead's, he abstained at this time, even at the risk of displeasing Mr. Smith. The latter was on hand at the appointed hour and, not finding the judge, he thought the matter over for a night and the next morning sent the following note:
"Sir:
"I was not a little surprised at your non-appearance last night at Mr. Dode- mead's per my request to clear up the aspersion you have unjustly said against me, that I was the writer of the libel taking off characters at the ball of 28th ult., which unjust assertion of yours I beg to have done away between this and 12 o'clock, as my character is hurt by it. Any place you will appoint between the hours before mentioned (excepting your own house) I shall repair to, with a couple of friends. As I would be sorry to doubt your being a gentleman, I hope you will pay attention to this letter, if not I shall take the liberty of ex- posing this and former letter to public sight, that your character may be seen into, my situation at present not permitting me to take any further action. " William Smith.
"Saturday morning, 10 o'clock. "James May, Esqr."
This might have been accepted as a challenge to the field of honor, not by any means the last of such challenges that were sent and accepted in Detroit.
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It was not, however, accepted by Judge May, and both persons lived in Detroit many years after this event had become only a memory.
EXECUTION AGAINST DEBTOR'S PROPERTY
As an evidence that there was no exemption from levy and sale on execution, there is a paper of some interest signed by twelve men who might have been chosen as appraisers or as a jury. Mathew Dolson, whose name has been men- tioned above, sued out an execution against the property of his debtor, John Embrow or Hembrow. The report of this jury of inquiry is as follows:
"Detroit February 16, 1799.
"We, the undersigned jury, are of the opinion that the house of John Hem- brow is worth the sum of twenty-seven pounds, four shillings and eight pence, equal to sixty-eight dollars and eight cents, which will be more than sufficienct to pay the execution of Mathew Dolson against the said Hembrow, agreeable to law.
"William Winslow,
"Matthew Donavan,
"Charles Curry,
"Israel Ruland,
"F. D. Bellecour."
EARLY ESTATES OPENED
The probate court for the Western District (Canada) went into operation before "evacuation" in 1796. The records of that court, now in Windsor, Ontario, show that but two estates were opened before June 11, 1796. The first was that of Collin Andrews and the second William Macomb. Both of these men lived and died in Detroit. As Macomb left a large estate in Michigan, his estate was subsequently probated on the American side of the river.
In a paper recorded in the Registry Office, dated July 12, 1797, are the following named as magistrates at that time: James Abbott, Jr., James May, Nathan Williams, Charles Francois Girardin, Joseph Voyer, and Patrick MeNiff.
QUARREL IN COMMON PLEAS COURT
There was a quarrel between members of the court of common pleas in 1798 and some of the justices refused to sit with the others in court. One of the papers served on Justice MeNiff reads as follows:
"Prothonotary's Office, Detroit 22nd (?) 1798.
"Sir: I am sorry to have to inform you, by the direction of Louis Beaufait, James May and Ch. fr. Girardin, Esquires, Justices of the Court of Common Pleas, that they are determined not to set with you on the bench next term, for reasons which you may know by applying to any of them. I have the honor to be, Sir,
"Your very humble and most obedient Ser't.
"Peter Audrain, Clerk. "Patrick McNiff, Esq."
The governor and judges of the Northwest Territory passed ten or eleven acts in 1797 after Wayne County was established. These were their final acts in that capacity. Act number three of this series was an act "vesting powers in justices of the peace in criminal cases." It would seem that the duties of
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justices were confined to criminal cases and they had no jurisdiction in civil cases.
SECOND GRADE GOVERNMENT INSTITUTED
In 1798 Governor St. Clair ordered the taking of a eensus in the territory, to ascertain whether there were more than five thousand inhabitants. As provided in the ordinance of 1787, the territory could assume the second grade of government by electing an assembly and choosing a council to compose the Legislative Council, as soon as it contained that number of people. The census was taken in Detroit in November (St. Clair Papers Vol. 2, page 435) and the requisite number was found in the territory. Wayne County was entitled to three members in the assembly, one for each five hundred inhabitants.
Election for one member only was held in Detroit on the third Monday in December, 1798. The contestants were James May and Solomon Sibley. The contest was spirited and very earnest. Mr. Sibley was declared elected and started early in January for the seat of government at Cincinnati. This election was contested by Judge May, as will be noted later.
The election for the other two members was held in Detroit on January 15, 1799. The letters of Oliver Wiswell give some of the details of the election. The result was that Joncaire received sixty-eight votes. Visger got sixty-three. Beaufait got thirty and Wiswell thirty-seven. Oliver Wiswell and Jacob Visger were declared elected, but they did not go to Cincinnati at this time.
The letter of Lewis Bond of January 23, 1799 will explain why the election was awarded to Wiswell and not to Charles Francois Chabert de Joneaire, who had received more votes at the election.
When the representatives convened at Cineinnati February 4, 1799, they chose ten citizens of the territory whose names were to be sent to the President. From this list the President was required to select the names of five persons who, with the approval of the Senate, were to constitute the council, or upper house, of the assembly.
The ordinance of 1787 provided for the selection of the members of the council by "the Congress," but with the adoption of the Federal Constitution "the Congress" ceased to exist and the legislative rights became vested in a President, Senate and House of Representatives. To meet this change in situation an act of Congress was passed August 7, 1789 entitled "An Act to provide for the government of the territory Northwest of the River Ohio," which directed that "the President shall nominate, and by and with the consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled; and all officers so appointed shall be commissioned by him."
For the council President Adams selected Robert Oliver, Jacob Burnet, James Findlay, Henry Vanderburgh, and David Vance.
The first meeting of the house of assembly on February 4, 1799 had been adjourned immediately after it had chosen the ten names for the council. No members of the council could be appointed for some time, as communication was very slow, and the assembly could not proceed to actual legislative business until the President's appointments were known and the members collected at Cincinnati.
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