USA > Michigan > Wayne County > Detroit > The city of Detroit, Michigan, 1701-1922, Vol. I > Part 32
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In file 5812, estate of Isaac Jones, hatter, McDougall accepted the bonds of Peter Desnoyers and Henry Berthelet as administrators running to "George Mc Dougall, judge of the court of Probate of Wills for the districts of Huron, Detroit and Erie, 7 Dec. 1809." The last section, No. 97, of the act of January 31, 1809 provided that "every judge of probate shall have a seal for said court, and shall appoint a clerk or register." The first case in which a register is men- tioned is No. 69, estate of Aaron Truax, a brother of Abraham C. Truax. The administrator's bond is dated April 24, 1810 and runs to George McDougall, judge of probate. It is witnessed by Robert McDougall, Sr., register.
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Harris Hampden Hickman appears as register July 22, 1811.
During the time of the British occupation of Detroit, from August 16, 1812 to September 29, 1813, there were no estates probated. The estate of John Whistler, Jr. (19th U. S. Infantry) who died at the house of James Abbott, his brother-in-law, December 1, 1813, was the first probated after the war. Admin- istration was granted to James Abbott by George MeDougall, "register of wills."
Although the act of January 31, 1809 provided for the appointment of a register of probate by the judge of probate, there was no provision for the ap- pointment or selection of a judge of probate nor for the establishment of a probate court. An act was passed November 4, 1815 for the appointment by the governor of a register of probate in each district in the territory. The register should receive proof of and record all wills and all deeds and other writings. He practi- ally combined the offices of register of deeds, judge of probate and clerk of the probate courts. In addition to these various offices, he could "celebrate the rites of matrimony."
The first Michigan act for the establishment of a probate court was passed July 27, 1818. A court was established in each county and a judge for each was appointed. There was a register for each court, but his powers were those of a clerk only. Both the judge and the register were paid by fees. This act, establishing the probate court, was reenacted in 1827.
COUNTY COURTS
The county court was to consist of one chief and two associate justices, to have original and exclusive jurisdiction in civil cases, both of law and equity, where the amount involved exceeded the jurisdiction of a justice of the peace and did not exceed one thousand dollars. It had no jurisdiction in cases of eject- ment. It had exclusive cognizance of all offenses not capital. Appeals could be taken from the justice court to the county court (October 24, 1815). Justices of . the county court could issue writs of habeas corpus (November 8, 1815). The governor could appoint a master commissioner to take testimony, either in or out of court, in each court having a chancery jurisdiction (June 13, 1818). At the time the first county court was provided (1815) there was but one county in the territory. The provision was reenacted December 21, 1820 and the provision inserted that there should be a county court in each county. The county court of Wayne County had no jurisdiction in criminal matters. Such cases were to be taken to the circuit court (March 4, 1831; act repealed November 25, 1834). In Wayne County the county court could not hear any jury cases, nor call any jury (December 30, 1834.)
CRANE VS. REEDER: A NOTABLE LAW CASE
There is probably no member of the Detroit bar, and few among the older citizens of Detroit, who have not heard of the Crane and Reeder controversy, which involved the title to a large and valuable tract of land on the Detroit River, near the fort, officially designated as "private claim 39." The history of this farm and of the dispute which grew out of the presumably defective title is as follows:
Some time prior to the year 1800 John Askin owned the land. Askin was an extensive trader and merchant in the village and was largely indebted to eastern houses from whom he purchased goods. Among his other creditors were Isaac Todd, a wealthy Irish gentleman temporarily living in Montreal, and James
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Magill (McGill), founder of McGill University, also of Montreal. In the financial depression which occurred in 1800, Askin was afraid he would fail in business, and in order to secure his ereditors he turned over this farm to Todd and MeGill. They had perfect confidence-well placed, too-in Askin's honesty and ability and gave him a power of attorney authorizing him to sell this land, and a number of other parcels in which they were interested.
In the spring of 1801 there was a baker in Detroit named John Harvey. It was subsequently claimed that Harvey came to Detroit before the year 1797, but it does not matter to us when he came. He was certainly here early in 1801 and kept a bake shop near the southeast corner of Shelby Street and Jefferson Avenue, on Ste. Anne and Ste. Honore Streets, as located in the village as it then existed. It was in his bake shop that the fire started which destroyed the entire village in 1805.
In the testimony produced in the case of Crane vs. Reeder, it was shown that Harvey was born in Birmingham, England, about May 17, 1751. He married Mary Penrice in 1782, and they had three daughters, Mary Penrice Harvey, Ann Reynolds Harvey and Maria Yorke Harvey, all of whom lived until maturity, and a son, John Harvey, who died in infancy. Mary was christened October 10, 1783, Ann was christened in January, 1786, and Maria was believed to have been born in 1792. The wife, Mary Penrice, died in 1809. The daughter, Mary Penrice, married Benjamin Pierce and died in 1852. Ann Reynolds married William Hart July 14, 1805 and was buried August 18, 1863. Maria Yorke Harvey left England October 23, 1822 to join her father at Jeffersonville, Indiana, and there resided with him until his death on December 5, 1825. When she came to America on the ship "London," December 13, 1822, she gave her age as twenty-six years, from which it would follow that she was born in 1796, and probably her father left England not far from that date.
After the fire of 1805, an act of Congress was passed, giving the governor and judges permission to lay out a new village plat, and authorizing them to give each resident of the old village a lot in the new one. Under this law, Harvey obtained three lots, one as a donation and two others as purchaser of the rights of Mrs. Thibault and Mrs. Provencal. There was some evidence produced at one of the trials to show that Harvey was living with a woman, who claimed to be, but was not, his wife. It is certain that on December 19, 1808, a donation lot was granted to "Sally Harvey, wife of John Harvey." This woman's name was Sally Wilson and she was generally considered to be the wife of Harvey, and was such by common law rights, for she lived with him until her death in the year 1822.
One of the witnesses in Detroit in the Crane vs. Reeder trial, James Thebaud, who lived at L'Anse Creuse (or as our learned brother-in-law, Henry Plass, who as circuit court commissioner, took the testimony, has it, he lived at "Long Screws") stated that Harvey's wife was "Tall Kitty" and that she was part Indian and part French, that because of her living with Harvey the priest would not admit here to communion. It is certain that her name was Sally, for the records and conveyances from her all give that name.
Harvey and his wife, Sally, sold part of their property in Detroit in 1809, and left for New York for the purpose of going to England. This was probably after the death of the rightful Mrs. Harvey in England, and Sally would have been received by the Harvey family as the legal successor to the name of wife. It is said that when the couple reached the city of New York, Mrs. Harvey refused to cross the ocean, and after a visit of a few days at that city they returned westward
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together, but not to Detroit. They took up a residence in Jeffersonville, Indiana, and lived there the remainder of their lives. No children were born of this marriage. Harvey sold the rest of his lands in the village of Detroit to John R. Williams in 1816, but did not dispose of his farm. He appointed Benjamin Stead his local agent and the farm was looked after, rented and taxes kept paid by the agent. Sally Harvey died in 1822 and on April 25, 1823 John Harvey made a deed of his farm to his daughter, Maria Yorke Harvey, who had come from England to live with him in the previous December. This deed was not witnessed and was not admitted as evidence in the subsequent suits in Michigan. John Harvey died December 5, 1825, leaving no other children than those born in England, all of whom were at that time in England excepting the one daughter, Maria. The latter married Edwin Reeder May IS, 1825 and died after April 12, 1828, leaving no children.
Edwin Reeder was appointed administrator of the estate of John Harvey July 13, 1826. Shortly after the death of his wife, Reeder came to the farm near Detroit, erected a house and lived there the remainder of his life. He left a will, which was probated in Wayne County, by which he devised the larger portion of his farm to relatives, giving one-tenth to the Unitarian Church of Detroit. As this land was afterwards claimed by the state to have escheated for want of heirs capable of inheriting real estate it will be well to see what the laws relating to real estate were.
It was provided, as we have seen, that all persons who were in Detroit in 1794 and who remained here one year after Jay's treaty became effective in 1796 were naturalized by reason of that treaty. It seems now that Harvey did not come to this country until after 1795, and could not take advantage of the provisions of that treaty.
It will be necessary here to enter into all the laws and repealing aets that affected property in the years between 1796 and 1828. A naturalization law was passed in 1802 by Congress. Two laws were passed in 1805 permitting aliens to hold, buy, sell and inherit real estate, but both laws were repealed before 1821. The entire laws of the parliament of Great Britain were repealed. so far as concerned Michigan in ISI0.
When the suit of Crane vs. Reeder came to be tried it was claimed that the act repealing the alien law, which repealing act was passed in 1821, was enacted by mistake and that the governor and judges intended to reenact the original law at onee. There is some authority to be found in the Detroit papers of 1828 to bear out this supposition.
On March 31, 1827 the alien law was again enacted.
Having thus hastily passed over the land laws of that period let us return to more modern times. Walter Crane gave his version of his connection with this land somewhat as follows: He was an army paymaster stationed at Louisville, which is across the river from Jeffersonville. One day a man whom he had befriended told him that John Harvey formerly lived in Jeffersonville and that upon his death the property owned by him there had eseheated to the state because he was not a citizen. He also told Crane that there was land in Detroit in the same situation.
When Crane returned to Detroit, he commenced an investigation of the title and came to the conclusion that Harvey was an alien and that his property had eseheated to the state. He applied to the state board of escheats and after some delay obtained a deed from the state for five thousand dollars.
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There were other circumstances connected with the purchase of the land of no great concern, except that they are interesting. One of these stories is as follows:
Just before the time the escheat was discovered, the government was seeking to purchase a site for Fort Wayne and among the parcels of land offered for that purpose was this tract. The official examiner for the government rejected the land because of the defective title, but he admitted some one into his confidence and that person made an application to the state board of escheats for a deed of the land. He was outbid by Crane. At the same time another person, or committee of citizens of Detroit, composed of Moses W. Field, Henry P. Bald- win and others, attempted to purchase the rights of the state and agreed, if they were successful in obtaining the land, they would convey it to Detroit for a public park. They also were outbid by Crane. When Crane had obtained the deed from the state, a cry of fraud was raised, that the state board of escheats had not conveyed the land to the proper applicant, and an investigation was had, but nothing ever resulted from it.
Crane, having obtained the deed from the state, set about recovering posses- sion of the land by commencing suits in ejectment against the persons who were in possession under Recder. He sought to show that Harvey was an alien, and had never become naturalized. In order to make this showing and produce the proper records, Crane visited England three times, in 1869, 1873 and 1876. He inspected every parish record, over eight hundred in number, in Worcestershire, and also a number in Warickshire and other places. He examined all the customs house records in New York to ascertain when Harvey and his daughter came to America. In order to do this he inspected more than 10,000 large volumes and closely examined some 800 that were selected from the larger number. He was not contented with showing negatively that Harvey was a British citizen, but he desired to show affirmatively that he could not have been naturalized.
In the great lawsuits which grew out of this contest-and there were more than a score of them-nearly all of the prominent attorneys of the city took a part. Messrs. S. T. Douglass, Sidney D. Miller, William P. Wells, George E. Hand and Herbert Bowen at one time or another represented Mr. Crane, while D. B. and H. M. Duffield, George V. N. Lothrop, Alexander D. Fraser, Henry M. Cheever and Theodore Romeyn represented the Recders. The legal battle be- gan in 1868 and was continued in the circuit and supreme courts of Michigan and in the United States courts for ten years.
In the lower state court the cases were tried before a jury and were uniformly decided in Reeder's favor, while in every instance on the appeal to the supreme court, the decisions of the lower court were reversed. The attorneys and persons on both sides were tired of their long fight, their patience and their means were alike exhausted, and they agreed to divide the property between them and cease their litigation.
In the settlement the entire property was conveyed to Crane and he re- conveyed to the Reeder interests the east 354 feet in width of the farm, nearly one-third.
The judges before whom these cases were tried, Jared Patchin of the circuit court, and Judges Cooley, Campbell and Christiancy, have all passed away. Nearly all of the lawyers and persons connected with the case have gone also.
The first case that reached the supreme court is reported in Vol. 21, page 70 Michigan Reports. The decision of the judge is based upon the supposition, first, that John Harvey was an alien and his children could not inherit his prop-
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erty; second, if he was a citizen, that the statute of 1827 did not take effect till January 1, 1828, which was several months after Mrs. Reeder died, and con- sequently she could not inherit from her father, for there was no law in force permitting aliens to inherit until the law of 1827 became operative.
At this trial all of the testimony which was subsequently produced was not put in evidence, but from later developments it appears that the law of 1827 became operative on the day of its passage, March 31, 1827, and that Mrs. Reeder did not die until nearly a year afterward. In all other trials of the case it was contended that if Harvey ever became a citizen it was by virtue of the treaty of 1794.
In searching through these old papers and records that have been the founda- tion of this series of articles, I have happened upon some documents of exceeding interest and importance in the Crane and Reeder controversy, being nothing less than the letters of naturalization of John Harvey. The first of these papers is as follows:
"At a session of the supreme court of Michigan began and holden on Monday, the twenty-first day of September, one thousand eight hundred and seven, at twelve of the clock, noon, at the council house provided by the marshal for that purpose at Detroit, the seat of the government of Michigan, was present Augustus Brevoort Woodward, chief justice of Michigan.
"John Harvey, of the city and district of Detroit, applied to be made a citizen of the United States, the court ordered said application to be docketted and postponed the same for further consideration."
On Thursday, September 24th following, is an order as follows:
"In the case of the application of John Harvey to be made a citizen of the United States of America, the applicant having satisfied the court by four witnesses of the time of his residence in the United States, and of his moral character and attachment to the principles of the constitution of the United States of America and of his being disposed to the good order and happiness of the · same, he was admitted to take the oath of naturalization and the oath to support the constitution of the United States and he was sworn accordingly in open court."
If these records had been known to the contestants before the cases were tried, the result might have been different.
CHAPTER XIII
INCORPORATION OF DETROIT AND DEVELOPMENT OF MUNICIPAL GOVERNMENT
FIRST MUNICIPAL GOVERNMENT-CHARTER OF 1802-TOWN ELECTIONS-FIRE OF 1805-THE GOVERNOR AND JUDGES-PLAN FOR NEW TOWN-INCORPORATION OF 1806 AND TEXT OF THE CHARTER-AUTOCRATIC GOVERNMENT-THE KING'S COM- MONS-GOVERNOR AND JUDGES AS A LAND BOARD-CHARTER OF 1815-THE COM- MON COUNCIL-CHARTER AMENDMENTS-CITY DIVIDED INTO WARDS-CHARTER OF 1857-CITIZENS'MEETINGS-BOARD OF ESTIMATES-THE NEW CHARTER- THE PRESENT MUNICIPAL GOVERNMENT-BOUNDARIES AND ANNEXATIONS-THE CASS FARM COMPANY OF 1835-ABORTIVE ACT OF 1873-TABLE OF AREAS.
The first municipal government of Detroit was established by the Legislature of the Northwest Territory. In the session of that body which was convened at Chillicothe on November 23, 1801, Solomon Sibley represented Wayne County in the legislative council, or upper house. He presented a petition from the citizens of Detroit in January, 1802, asking for the incorporation of the town, and followed the presentation of the petition with the introduction of a bill for that purpose. The measure, bearing the signatures of Robert Oliver, pres- ident of the council, and Edward Tiffin, speaker of the house, was approved by Gov. Arthur St. Clair on January 18, 1802, just five days prior to the ad- journment of the Legislature. The progress of this bill. was not unimpeded and had it not been for the efforts of Solomon Sibley there might have been a dif- ferent outcome. The council proposed various amendments to the original draft of the bill, but the assembly failed to agree. Finally, a committee of confer- ence was appointed and after their discussion the bill was passed. At Detroit a publie celebration was held and the "freedom of the town" was voted to Sibley.
CHARTER OF 1802
The charter granted by the act of the Legislature existed in force until the organization of Michigan Territory in 1805, when the newly appointed governor and judges assumed the right to legislate for the affairs of the city as well as for the territory ; their action, in effect, abrogated the charter. This charter of 1802 is here copied in full :
"AN ACT to incorporate the town of Detroit:
"Section 1. Be it enacted by the legislative council and house of repre- sentatives in general assembly, and it is hereby enacted by the authority of the same, That such parts of the townships of Detroit and Hamtramck, in the County of Wayne, as are contained in the following boundaries and limits, to wit : bounded in front by the river or streight of Detroit; eastwardly by the division line of John Askin, Esquire (Brush farm) and Antoine Bobien (Beau- bien) ; westwardly by the division line between the farm belonging to the heirs of the late William MeComb (Cass farm), deceased, and Pierre Chesne (Jones), and extending back from the said river two miles at an equal width in rear
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as in front, and ineluding all wharves and buildings in front of the said town, be, and the same are erected into a town corporate, which shall henceforth be known and distinguished by the name of 'The Town of Detroit.'
"Section 2. And be it further enacted, That for the better ordering and regulating the police of the said Town of Detroit and the inhabitants thereof, there shall henceforth be in the said Town five trustees, a secretary, an assessor, a collector, and a town marshal, who shall be inhabitants of the said town, and who shall be chosen as hereinafter mentioned.
"The trustees shall be a body politie in law, by the name of 'The board of trustees of the town of Detroit,' one of whom shall act as chairman of the said board, and one as treasurer, to be appointed by the said trustees. Any three (3) of the said trustees shall constitute a board for business, the seere- tary being present.
"Section 3. And be it further enacted, That the said trustees and their successors in office, shall be able, in their corporate capacity, and for the use of the said corporation, to receive, acquire, hold and convey any estate, real or personal, and shall also be capable in law, by their corporate name afore- said, of suing and being sued, of pleading and being impleaded, in any action or suit, real or personal, in any court of reeord whatever; and they are hereby authorized to have and use one common seal for the purposes of the said eor- poration, and the same to alter, break or renew at their diseretion.
"Section 4. And be it further enaeted, That the inhabitants of the said Town of Detroit who are freeholders, or householders, paying an annual rent of forty dollars, and such other persons residing within the said town who shall be admitted to the freedom of the said corporation by a majority of the electors at their annual meetings, shall and may assemble at sueh place within the said town, as shall be appointed by a majority of the said trustees, on the first (1st) Monday of May, yearly and every year, and then and there elect by the highest number of votes of the electors present, five disereet and suitable persons, resident within the said corporation, to serve as trustees of the said town for one year next ensuing, and until other trustees are chosen and quali- fied ; also a secretary, one assessor, a collector and a town marshal, who shall serve for a like term of time.
"The trustees and all other officers of the said corporation shall, within ten days after notice of their respeetive appointments, take an oath or affir- mation faithfully and impartially to execute and discharge the duties of their said offices, before some person in the said county authorized to administer oaths; a certificate whereof shall be given to the person taking the oath and by him filed with the seeretary of the said board.
"Section 5. And be it further enacted, That the said trustees, when eon- vened for business, shall be called 'The board of trustees of the town of De- troit,' and they, or any three of them, shall have full power and authority, from time to time, and at any time, to hold a meeting in the said town, at such place as the chairman, or in his absenee, the secretary, shall point out, and to make, ordain and establish, in writing, such laws and ordinances, and the same, from time to time, to alter or repeal, as to them shall seem necessary and proper for the health, safety, cleanliness, convenience and good government of the said Town of Detroit and the inhabitants thereof; to appoint a treasurer of their own body; to administer all necessary oaths; to impose reasonable fines, pen- alties and forfeitures, upon all persons who shall offend against the laws and
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ordinances that shall he so made as aforesaid; and to levy and cause to be col- lected all such fines and forfeitures, by warrant of the chairman, with the seal of the said corporation, directed to the marshal, who is hereby authorized and directed to collect the same, by distress and sale of the goods and chattels of the offender, and the same to pay to the treasurer, to and for the use of the said corporation, and it shall be the further and particular duty of the said board of trustees to make, adopt and establish regulations for securing the said town against injuries from fires; to cause the streets, lanes and alleys of the said town and the publie commons to be kept open and in repair, and free from every kind of nuisances; to regulate markets, and if necessary, to appoint a clerk of the market; to regulate the assize of bread, both as to weight and price, having due regard at all times in establishing the same to market price and value of flour in the said Town; and to prevent swine and other animals from running at large in the streets, lanes and alleys, and on the public com- mons of the said Town, if in their opinion the interest or convenience of the said Town shall require such prohibition ; all such laws and ordinances and regulations so to be made, shall be in force and binding from thenceforth until the next annual meeting for the election of corporate officers, when all laws, regulations and ordinances made, adopted and in force under the authority of this act, shall be, by the secretary of the said board, laid before the electors of said Town, for their consideration; and if any of the said laws, rules or regulations, made or adopted by the said board of trustees, for the good govern- ment and well-being of the said corporation, shall be disapproved of or rejected by a majority of the voters present, the said laws, ordinances and regulations so disapproved of, shall thenceforth become null or void, and of no effect ; Pro- vided, That the laws and ordinances so to be made by the board of trustees as aforesaid, shall be consistent with the laws and ordinances of the territory.
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