USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 31
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The Catholic Church had existed for nearly a century and was then in its usual condition. The priest managed to live from donations o his parishioners and tithes which were collected, but the church building was in a dilapidated condition and waited only to fall in some wind storm. Fortunately for the society, the building was destroyed by the fire of 1805.
In 1796 and in the subsequent years the people of the parish were more intent on attending religious services than they were in paying their church dues. In respect to letting their worldly affairs take precedence of their material church obligations they did not differ much from the Protestants. The Catholic priest in 1797 was Gabriel Richard, then a newcomer. He was well educated and had a spirit of progressiveness along the line of popular education that was far ahead of his times. He was not appreciated by his own church people and they made life
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a burden to him in many ways. However, he constantly worked for his people and for the Indians, whom he considered as his special wards. Burnet, in his Notes, page 282, relates that on one occasion Judge Symmes, in his charge to the grand jury, endeavored to convince the French Catholics that they were unduly attentive to their religious duties. The interference of the judge with their personal acts gave great offense in the town.
PUBLIC MORALS AT LOW EBB
The morals of the community were not above par in any way. There was a large garrison composed of soldiers who had volunteered for Indian and frontier service and who were, as usual, a rather reckless lot. In the court records are many cases of rioting and of other evidences of debauchery and low life. Whisky was a common and cheap commodity and there is scarcely an account to be found in the many account books which have been preserved, that does not present many items of whisky and rum. Total abstinence was apparently un- known. With such a wholesale use of liquor it is not to be wondered that there was much privation, want and squalor, even in this land of plenty. McNiff writes: "The disorderly conduct of the inhabitants by the profanation of the Sabbath Day, by horse racing, dancing and a thing too common on that day, drunkenness; these vices require the attention of the legislature to pass a law to suppress them."
There were several taverns in the village. As there was very little travel, it must be understood that the greatest uses to which a tavern could be put was to take in boarders and sell rum. They were rum holes of the worst kind. William Forsyth was among the tavern keepers and he probably had the largest place in town, located upon the site where the Michigan Exchange was after- wards built. Then there were Thomas Cox, James Donaldson,-Cornwall and others. John Dodemead kept a place where liquor was sold, as noted in a pre- ceding page. These places were not called saloons, but they were places of lounging and drinking and sometimes there were games and billiard tables in connection. Warham Strong is put down as a tavern keeper in the very earliest of the American record. A license to keep a tavern was issued to Robert Kean in 1797. He had purchased the tavern formerly kept by Mathew Dolson.
SOLDIERS THE WORST OFFENDERS
There was a strong feeling in Detroit, and it was probably universal in America, that the military department was unfriendly to a democratic form of government and was not to be endured in perpetuity. The soldiers in the garrison were considered a constant menace to the enforcement of civil law, and conflicts between the two departments, civil and military, were frequently arising. In 1797 Lieut .- Col. David Strong was in command of the garrison. Many of his soldiers would come into the village from the fort, and after drinking sufficient to make themselves uncontrollable, engage in rioting and making dis- turbances in the streets. All of the better class of people wanted the disturbance stopped. A fuller account of this affair will be found elsewhere and in this place we will give merely the outlines of the subsequent trouble. Colonel Strong found that a great amount of the drinking was done at Dodemead's and it was in the second story of this house that the courts were held. After warning the garrison to desist from drinking and carousing, the colonel ordered a sentry stationed at the entrance to Dodemead's place to prevent the soldiers from enter- ing. Immediately all of the citizens were out with protests against the attempt
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of the military department to interfere with civilians' rights. An appeal was made to the court on the ground that the "centinal" coerced the court. Then an appeal was made to Governor St. Clair and the matter became so serious that Colonel Strong was removed and sent to Ft. Wayne. He was succeeded by Col. John Francis Hamtramck.
On another occasion two soldiers got into a quarrel in a drinking place and one of them was killed. Solomon Sibley was requested to prosecute the murderer and he was in great doubt about his right to proceed when the culprit was a soldier.
It frequently happened that the defendants, in a civil suit, pleaded that the debt sued on was incurred while the defendant was a soldier and the defense was always sustained.
There were several instances in later years where soldiers were objects of complaint for violating the rules and ordinances of the city and they took refuge under the military cloak. It was contrary to a city ordinance to fish on Sundays from the public wharf. The soldiers seemed to delight in using this day of all days for that purpose. The protests of the citizens were in vain and it was im- possible to resort to the courts. This over-riding of civil law was not confined to Detroit, but was prevalent in all garrisoned towns and led the people to fear and to dislike that branch of government.
TERRITORIAL JUDICIAL DISTRICTS
The law establishing the Territory of Michigan was enacted early in the year 1805, but the territory was not organized until July 1st of that year.
As before stated the governor was William Hull and the judges were Augustus Brevoort Woodward, Frederick Bates and John Griffin. They had the powers which had been conferred upon the governor and judges of the Northwest Territory of adopting laws from the state. Stanley Griswold was appointed secretary. Almost immediately after they assembled in Detroit they began the 'adoption of laws necessary for the territory.
By proclamation of the governor of July 3, 1805, the territory was divided into four districts, called Detroit, Erie, Huron and Michilimackinac. The district of Detroit was bounded in front by the Detroit River and on the remaining sides by a line commeneing at the Detroit River five miles above the center of the citadel in the village of Detroit, and extending westerly from that point to the line of Indian title as established by treaty, thence south on that line ten miles and thence due east to the Detroit River. The territory south of this district was called Erie and that to the north was called Huron, extending to Saginaw Bay. The territory north of Huron was called the district of Michilimackinac. These were the judicial districts of Michigan.
The elerks appointed for the district courts were: Peter Audrain, for the supreme court and for the district court of the distriets of Detroit and Huron, the same to be held in Detroit; George MeDougall, for the district of Erie, the court to be held at Frenchtown (Monroe); Samuel Abbott, for the district of Michili- mackinac, court to be held at Mackinac. Samuel Abbott, David Duncan and Josiah Dunham were appointed justices of the peace at Mackinac. John Ander- son, Francois Navarre, Israel Ruland, Francois Lasselle and Hubert Lacroix were appointed to the same office for the district of Erie, and Robert Abbott, James Henry, James Abbott, James May, William MeDowell Scott and Matthew Ernest received similar appointments for Detroit. Elisha Avery was first ap-
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pointed marshal of the territory, but he declined the appointment and it was given to James May. There was no settlement of importance in the district of Huron, consequently it was attached to Detroit for judicial purposes.
SUPREME AND OTHER COURTS
The supreme court was first convened at a court room arranged for that pur- pose in the house of Judge May on July 29, 1805. At the first session there were no cases for trial and court adjourned after appointing Peter Audrain clerk.
On the following day Solomon Sibley and Elijah Brush were admitted to practice at the bar. The only judges present at these two sessions were Wood- ward and Bates.
Court was not again convened until September 16, 1805. In the meantime a good deal of building had been done in the burned district of the village and the house of John Dodemead had been erected upon the same lot before occupied by him, at the corner of Jefferson Avenue and Shelby Street, and here court was now opened by the marshal with the following words, "Attention! The supreme court of the Territory of Michigan is now sitting. Silence is commanded on pain of imprisonment." A grand jury was called and three of this body, Jacob Visger, Antoine Beaubien and Joseph Campau, who failed to answer the sum- mons, were each fined one hundred dollars.
The first case called was an action against certain goods supposed to have been smuggled into the territory in order to avoid payment of duty. The owners of the goods were Isaac Bissell, Jr., and Henry Fitch. The attorney for the United States in this action was Solomon Sibley and Elijah Brush represented the de- fendants. The first judgment was obtained the same day, September 16, 1805, in favor of George Meldrum and William Park against Adam Brown for $400.4034.
George Hoffman was the third attorney admitted to practice and Abraham Fuller Hull was the fourth.
The first act, regarding a temporary seal for the territory, was adopted July 9, 1805, and other acts followed rapidly. The office of territorial marshal was created by the act adopted July 10, 1805. An act of July 24, 1805 provided that the three judges appointed by the president should constitute the supreme court of the territory and that the judge first chosen should be the chief justice. The court should have exclusive jurisdiction in all cases involving the title to land; concurrent jurisdiction in all cases involving two hundred dollars or more; and appellate jurisdiction in all cases. It had exclusive jurisdiction in all capital criminal cases and all cases of divorce and alimony. The court was directed to appoint a clerk to keep its records, admit attorneys to practice, and appoint a prosecuting attorney. Suits in equity were not permitted if there was an adequate remedy at law. In equity trials, witnesses should be heard in open court. Paper, instead of parchment, should be used in all court records.
A district court should be held in each district at least once each year. The judges of the general or supreme court were, individually, to be judges in the district courts, which were courts of record. The court had jurisdiction in all cases where the amount involved exceeded twenty dollars, excepting in cases especially reserved for other courts. Cases were to be tried by jury if demanded. The clerk of the district court was the appointee of the supreme court. In this act, which was passed July 25, 1805, nothing is said about equity cases. Ap- pointments for the district court are listed upon a preceding page.
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By the act of August 1, 1805 justices of the peace had jurisdiction in cases where the amount involved did not exceed twenty dollars. Suits were begun by capias. Executions were to be levied upon the property of the defendant and if not satisfied by this process the body of the defendant was to be taken. Suits involving real estate titles could not be tried before a justice.
By the act of August 2, 1805 marriages could be performed by justices of the peace, ministers of the Gospel and by religious societies according to their rules. The marriage certificate was required to be filed with the clerk of the district court.
Grand juries, with twenty-four members, could be summoned by either the supreme or the district court.
By aet of August 14, 1805, trials by jury were permitted in both the supreme and district courts, and juries de medietate linguae could be directed in either court. That is, the jury was composed one-half of English-speaking men and the other half of Canadians or Frenehmen. This was a very common way of calling a jury where either litigant was a Frenchman or Canadian. Appeals could be had from the justice court to the district court and from the district court to the supreme court.
Conveyances of land were to be recorded by the clerk of every court.
The courts of the several districts of the territory, any judge in the territory, and the clerk of the court of the distriet had the power to take the proof of a will and grant a certificate of probate. The original will was to be recorded in the of- fice of the elerk of the district.
An appropriation of twenty dollars was made October 7, 1805 "for the special services of James May, marshal of the Territory of Michigan, to-wit: for sum- moning three grand juries, for summoning a petit jury in a criminal trial and for superintending the erection of a bower for the holding of a court." The "bower" was necessary because the entire town of Detroit had been burned and there was . no house in which to hold the court.
Alexander D. Fraser, one of the foremost of the old time lawyers of Detroit, in an article on the early territorial courts, writes as follows concerning the transfer of government from Great Britain to America in 1796:
"But what became of the laws which had hitherto been in force in Michigan, and by what process were those of the Northwest Territory extended over the country of which possession had just been obtained? It is a principle of universal jurisdiction that the laws, whether in writing or evidenced by the usage and customs of a conquered or ceded country, continue in force till altered by the new sovereign."
None of the courts or procedures of Canada were continued by the Americans after July 1, 1796. This was probably owing to the claim that Michigan was never a part of Canada, but that it formed portions of the colonial grants to Massachusetts, Connecticut and Virginia, whose jurisdiction and rights were surrendered to the general government upon the passage of the ordinance of 1787. As soon as Wayne County was organized the territory became subject to the same laws as the other parts of the Northwest Territory. As mentioned before, when Indiana Territory was organized Detroit still remained in the old Northwest Territory, but when Ohio became a state, Detroit was transferred to the Territory of Indiana. The court of common pleas, the orphans' court and the court of quarter sessions were continued by the proclamation of Governor Harrison in the organization of the new Wayne County. Practically, these
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matters are of little importance for it was only a very short time before Michigan Territory was organized and a new life begun.
We have no evidence at this time that any change whatever took place. The same justices held office and the same courts proceeded as if nothing unusual had taken place. When Michigan Territory was organized in 1805 considerable changes took place, as outlined before.
Not a word was said, at first, about the recorder's office or the office of the register of deeds, but an act was passed in 1805, requiring the clerk of any court to record deeds and conveyances. These records, in Detroit, were all entered in the same books that were begun under the act of the Northwest Territory. The office of judge of probate seems to have continued, but no new law was passed on the subject of that office. There was, however, an act authorizing the dis- triet courts or any judge of the district or the clerk of the district court to probate wills.
In 1806 the office of city register was created for the purpose of keeping a record of the conveyances of land within the city of Detroit, and the first entry was made by Joseph Watson, city register, November 11, 1806.
The first paper on record was a survey of the banking lot of the Bank of Detroit, made by Abijah Hull, surveyor of Michigan.
Affairs in territorial matters did not run smoothly from the very start, for there was continual quarreling between Hull and Woodward, and the other two judges were necessarily involved in the discussions. Hull tried to control matters, but Woodward was imperious, domineering and fault-finding. He bullied Hull and Griffin and pestered the life out of the governor. Griffin usually sided with Woodward and got along fairly well with him for twenty years. He was not considered a judge of much ability, but was generally successful in keep- ing out of the quarrels of his associates. Bates also succeeded in getting along with the others, but for a short time only, when he retired and moved to the Territory of Missouri, and James Witherell became his successor.
The record of the early laws passed by the governor and judges shows that on every occasion the governor and at least two of the judges were present at the legislative sessions and signed each act in approval of it. During the absence of Judge Woodward, who was in Washington in the fall of 1808, the governor and two judges passed an act on November 9th, making it no longer necessary that each act should be signed by the members present. This act provided that of the four members of the legislative board, three should constitute a quorum and that when three only were present, two should be a majority and that it was necessary only that the presiding officer should sign the act and the secretary attest it, to give it validity. This act was stated to have been adopted from the State of Vermont. There were forty-five laws thus adopted and certified be- tween November 9, 1808 and May 11, 1809.
The act passed July 25, 1805, for the establishment of district courts to be be presided over by one of the judges of the supreme court, was amended in 1807, so that judges of the supreme court were no longer eligible for the district court judgeship.
A new provision was adopted April 2, 1807, for the establishment of district courts to be presided over by a chief judge and two associates to be appointed by the governor. Jacob Visger was chief judge of the new court and his associates were John Whipple and James Abbott. Abbott resigned March 4, 1809, having become involved in a quarrel with Abijah Hull, the governor's nephew, and had
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been challenged to fight a duel. He neglected to accept the challenge, but the governor took the part of his nephew and inflicted upon Abbott all the punish- ment he could. He removed him from all the offices he held and recalled his appointments as a justice of the peace, associate judge of the district court and his office in the militia.
THE PROBATE COURT
The probate court was established in the Northwest Territory by the act of August 30, 1788, but, of course, was not established in Wayne County until 1796. The first estate probated in Detroit was that of Amos Weston, a blacksmith. John Askin was appointed administrator of the Weston estate and of the estate of George Knaggs, August 23, 1797. These are the oldest papers in that court. Weston was a Canadian and died at Amberstburgh, and his estate was first probated in Sandwich.
The probate court was, in some respects, a singular institution. The judge, Peter Audrain, was an appointee of either Arthur St. Clair, as governor, or of Winthrop Sargent, as governor pro tem. Audrain continued to hold the office of judge of this court under the Northwest Territory, Indiana Territory and Michigan Territory. He had no new appointment, but acted always under the original and first. There are only a few files of estates in the probate office between 1796 and 1807, about sixty in all, and an examination of them shows that Audrain claimed to be probate judge and took bonds from executors to himself as judge, until sometime after the full organization of Michigan Territory. In the estate of Jacob Dicks, the will was filed with "Peter Audrain Clerk of the dis- triet court for Huron and Detroit 21 October 1805" and the bond was given to "The United States of America." From this time on there were no papers signed by any probate judge nor is that court mentioned until 1807.
The papers in the court were in a scattered and unsatisfactory condition during the remainder of the time that Audrain possessed them. On many of them is the endorsement "Delivered over by Mr. Audrain 18 July 1809, Geo. McDougall, judge of probate."
During the time that the district court was presided over by the judges of the supreme court, wills were presented to that court. Shortly after the change in the form of the court and the appointment of Jacob Visger as chief judge, the will of George Hoffman was presented to the court for allowance. Visger refused to admit the will to probate. The supreme court issued a mandamus to compel him to take and probate the will, but he refused to obey the court and offered to suffer death rather than to change his own rulings. The case is a very interesting one and is quite extensively explained in Vol. 37 of the Michigan Pioneer Collections on page 32. In this case is discussed the legality of the forty-five laws passed by Governor Hull and the two judges during the absence of Judge Woodward in 1SOS. Mr. Visger's objection, however, was that the legislature had no power to repeal a law that they had once adopted. He said that there was already a probate court in existence and that the attorney and executor named in the will, Solomon Sibley, should have presented the will to that court. His absolute refusal to obey the order of the supreme court and probate the will necessitated the production of the will before the supreme court, which was the only other court in the territory. The will was allowed in the supreme court. It is barely possible that there was another reason for refusing to probate this will, which never appeared on the surface. George Hoffman, the decedent, had
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married Margaret Audrain, daughter of Peter Audrain. Hoffman had been appointed collector at Mackinac (Michilimackinac) and was living there at the time of his death. They had one child, George Worthington Hoffman, who was about seven months old at the time of his father's death. George Hoffman, by his will, gave all of his property to his father and mother, provid- ing that neither his wife nor his then unborn son should take any part of his estate. It is possible that the injustice done the infant son was one of the causes the district court had in refusing to probate this will.
An act was passed February 24, 1809, providing that all laws of the North- west Territory and of Indiana Territory should no longer operate in Michigan. This abolished the probate court as operated by Peter Audrain.
District courts were abolished September 16, 1810. This was done for the purpose of punishing Visger and Whipple for refusing to obey the mandate of the supreme court. The history of this court is very short and full of pathos. It was established as the first court of record in which citizens of Detroit officiated, April 2, 1807. There were three judges in the court, James Abbott, whose fate has been narrated, Jacob Visger and John Whipple, who were turned out of office because they refused to be coerced, as they said, to do an illegal act. The abolition of this court left only the supreme court as a court of record.
There was an act adopted and published January 31, 1809, entitled "An act for the probate of wills and the settlement of testate and intestate estates." The act is very long, containing ninety-seven sections. Throughout the act, in many places, are references to a "court of probate" and "judge of probate," but it contains no provision for the establishment of the one or the appointment of the other. The basis of the act rests upon the supposition that a law already existed for the creation of such a court and the appointment or election of a judge. No such previous act seems to exist. So, in another act, adopted Febru- ary 26, 1808, entitled "an act regulating fees" there is a provision for fees for the "judge of probate."
The laws that were from time to time adopted by the governor and judges, were written in book form and signed by the officials. It is known that one book containing most of the acts of 1806 and 1809 was lost and when the official com- pilation was published in 1874 the titles only of these missing laws were given. Subsequently and about the year 1883 the writer hereof found a volume of the missing laws, which was printed the next year (1884) and now constitutes part of Vol. 4 of the Territorial Laws. It is quite possible that there is another volume of these acts that may sometime be discovered. As previously stated there are a number of the old files in the probate court that are endorsed "Delivered over by Mr. Audrain 18 July 1809. Geo. McDougall, Judge of Probate." We would conclude from this that Mr. McDougall had been appointed judge of probate shortly before July 18, 1809, but no record of such an appointment has been found.
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