The history of Detroit and Michigan; or, The metropolis illustrated; a chronological cyclopedia of the past and present, Vol I, Part 40

Author: Farmer, Silas, 1839-1902
Publication date: 1889
Publisher: Detroit, S. Farmer & co
Number of Pages: 1096

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SUPREME COURTS OF THE TERRITORY AND THE STATE.

evening, a troop of waiters, under the command of Captain Tut- tle, was sent from the fort to reconnoiter the town for this Morri- son. The captain, being a vigilant officer, soon discovered the enemy, and returned to the fort with intelligence of his position, leaving an advance guard to prevent the enemy's retreat. The British officer, led by the American heroes, sallied out of the fort, double charged with good Monongahela. Lieutenant Brevoort commanded the right wing, Ensign Lundi the left, and Captain Muir the center division. Lieutenant Hanks, Adjutant Hull, and Captain Tuttle retreated under the guns of Mrs. Betty McBryd's battery, while a furious attack was made on the enemy's out- works.

The besieged was under the command of Lieutenant Seek, an inexperienced officer, who, having no other weapon of defense than his bodkin and Sheffield needles, did not hold out long against the impetuosity of such experienced veterans. A breach was soon effected, where the invincible heroes of both nations entered, sword in hand. Lundi presented a loaded pistol to Seek's head, while Muir and Brevoort seized and dragged the vanquished Mor- rison into the street. "Murder ! Fire ! Indians !" was loudly vociferated from the throats of all the men, women and children that were in the house at the time ; the same sounds were rever- berated by the people of the neighborhood ; a general terror pre- vailed, and no wonder. The same day, in the forenoon, news was circulated in town that seven hundred Indians were lying in ambush, fifteen miles back in the woods, ready to massacre all in this town and settlements. The people rushed from their houses, armed with swords, guns, and shovels, others, carrying buckets and barrels of water, shouted " Where are the Indians ? Where is the fire? " Meantime the report of a pistol was heard, and in a few minutes, another ; which sounded in the terrified people's ears like great guns, and directed them to the scene of action. John Harvey, a baker, and next neighbor to Seek, was at his own door when the affray began. Seeing three or four men dragging one by the shoulders, and without knowing the cause of the custody, he ran, laid hold of Morrison's limbs, and detained him by main strength, in defiance of their threats to run him through and to blow out his brains. The old story was half realized of "Pull baker, pull devil." "Fire and be d-d, you ruffians !" was all the baker said till poor Morrison's clothes were all torn to atoms. Meanwhile Seek had been around the neighborhood spreading the alarm, and returned amongst the first, and laid hold of Lundi. A struggle ensued, but Lundi, finding Seek had the command of his pistol arm, and perceiving an opening, fired it off towards the ground ; and not with an intention to kill Seek, as was erroneously stated in former publications. Captain Muir, seeing the people assembling, presented his pistol to Morrison's naked breast, swear- ing that since he could not take him alive, he would leave him dead. Morrison, perceiving his intention, struck the pistol to one side, and instead of killing Morrison, the ball went through the calf of his own leg. The citizens by this time assembled in great num- bers, and relieved Harvey from a very dangerous situation ; sur- rounded the officers, and carried them in civic triumph to Smyth's Tavern, to get the wound dressed. Lieutenant Hanks and Adju- tant Hull, seeing the people more moderate than usual in such cases, now ventured from their lurking places, and finding the flower of their army thus wounded and maimed, began brandish- ing their broadswords and swore many bloody oaths that if the cit- izens would not immediately disperse they would turn the guns of the fort upon them and blow them to hell. They were all taken into custody, and came under recognizance to stand trial at the next September term. * * * The twentieth day of September, 1806, the trials of Muir, Lundi, and Brevoort came on. A respect- able jury was impaneled, and sworn in one by one ; the witnesses were brought forward, and underwent scrutinous examinations. The case appeared so clear that the attorneys waived their plead- ings, the jury retired, and returned with their verdict, Guilty. The judgment of the court was delayed some days, when one of the attorneys prayed the court to pass judgment on the officers. The judges retired into a private room a few minutes, then return- ed and took their seats. All was silence ; the scene was awful. Judge Woodward opened the judgments by a lengthy preamble,

setting forth the delicacy of his situation, and his diffidence in the performance of the duties he was called upon by his country to do, the enormity of their crimes ; as such irregularity of conduct might involve countries, now at peace, in all the horrors of de- structive war. He then said, " It is the opinion of the court that Captain Muir's crime is much more heinous than Ensign Lundi's, he having actually discharged the pistol with intention to kill Mor- rison (although at the same time it passed through the calf of his own leg). Therefore the judgment of the court is, that Captain Adam Muir be fined in ten Pounds Sterling, and seventeen days im- prisonment, and to remain in custody of the marshal until the same shall be paid. It is also the judgment of the court that Ensign John Stow Lundi be fined in two thousand Pounds Sterling, that is to say, $8,888, and six months imprisonment, and remain in cus- tody of the marshal until the same shall be paid. It is the judg- ment of the court that Lieutenant Henry B. Brevoort be fined in one hundred Pounds, lawful money of New York, and seventy-five days imprisonment, and to remain in custody of the marshal until the same shall be paid." Ensign Lundi hung down his head, and looked as any other man would do when condemned to perpetual imprisonment. The audience stared with wild amaze at each other, rose from their seats, and retired. Those who were formerly the most violent against the officers were now the most violent in their execrations against the inequality and injustice of these cruel judgments. The court, finding they had missed their aim in this unjustifiable fetch for popularity, now set their wits at work to remedy their error. Meantime Judge Griffin arrived, and took his seat on the bench. A few days afterwards, the judgments were opened anew, when, wonderful to relate, the court then, and not till then, considered that the officers were tried by the common law of England, and judgments rendered accordingly, when, at the same time, the laws of Indiana Territory were still in force in Michigan " Territory, which limited fines for assault and battery to not exceeding one hundred dollars. The former judgments underwent a thorough investigation, and the decisions of the court, agreeable to the laws of Indiana Territory, were : That the terms of imprisonment of the three officers, Muir, Lundi, and Brevoort, be reduced by striking them out, and their fines reduced to sixteen cents. Lieutenant Hanks was also tried at the same court, for an assault on the body of Dr. Joseph Wilkinson. He pleaded guilty and was fined in fifty dollars. The judgment in his case was also cancelled, and the fine reduced to one cent.

It is impossible to describe the feeling of the insulted citizens of Detroit on this occasion. Our peaceful dwellings, violated by a banditti of insolent foreigners; our wives and children terrified into fits; ourselves assailed and threatened with fire and sword; and a few cents is presented to us, to redress these barbarous in- sults, presenting the lowest dregs of humiliation to a people for- merly cheerful, generous, and brave, although now debased to the meanest extreme by the juggling pranks and legerdemain tricks of these unprincipled judges that fill our judgment seats.

A third letter to Woodward, contained in the Gazette of Friday, November 15, 1822, addressed him as follows :

You have been plainly and distinctly charged with turpitude and inconsistency, with meanness and injustice, with indelicacy and falsehood, with selfishness and contempt for public opinion. If you ask for the specifications, I refer you to my two previous communications on this subject. And what have you answered to these grave charges,- charges which not only involve your official conduct but also your private character? Nothing. In legal phrase you stand mute; which, according to the common sense of mankind, admits the truth of the charges, for the non-denial of an allegation, fairly and distinctly made, amounts to an admission of its verity. * * * You may write resolutions, and stimulate your tools to offer them at public meetings; but you will never be able to perpetuate that state of intellectual and political degrada- tion which hitherto you have contributed to maintain.

This Territory is about to emerge from her long night of polit- ical darkness; to rouse the sleeping energies, and to exhibit to you a practical lesson which shall convince you that, having committed

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innumerable outrages in your official character, far exceeding the indulgence which, from our former tameness and submission, you had a right to expect, you have now no longer the smallest claim upon our forbearance, and have become a fit subject for the knife of political dissection. You must, therefore, expect to see your character portrayed in bold relief. But how shall we enumerate the black catalogue of outrages and enormities which your official life of twenty years has been so fruitful in furnishing? The attempt would be as hopeless as the cleansing of the Augean stable. * * *

The portals of your narrow, selfish soul are as firmly barred against every generous or noble sentiment as the dark cave of Cer- berus.

You may be likened to the man who, on board a ship in a storm, being called upon to assist, replied that he was only a passenger. It may be emphatically said of you, that you consider yourself only a passenger. You stand unconnected by any tie of nature, friendship, or gratitude, holding one of the highest and most lucra- tive offices in the Territory, besides an independent estate. You are literally without a friend. So disgusting is your character, in every point of view, that it is really a matter of curious specula- tion how, or by what strange fatality, such a man should have been palmed upon this Territory. I assure you, sir, that in pur- suing your character I have a magnanimous feeling, which would prompt me to desist from so painful an investigation were I not conscious that the best interests of this community are concerned, and that the time has arrived when honest men should speak out. Z. Z.

In the Gazette for December 27, another writer, with the signature of "Sidney," took up the cudgel against Judge Woodward. He says :

The most prominent feature, and one that strongly distinguishes his Honor from the rest of the world, and which, indeed, seems to be blended with all his other features, is originality,-a mode of thinking, reasoning, and acting altogether peculiar to himself ; * *

* characterized only by a perfect contempt for those laws of reason and common sense which govern most men, and which delights itself in driving tandem the steeds of whim and fancy

* * Another over the sober children of truth and reason. *

peculiarity of this judicial Quixote, and which appears truly sur- prising in any one having the least pretention to a legal educa- tion, is a direct and open hostility to law, considered as a science. Not only has he totally neglected all legal studies himself, and constantly manifested the most perfect indifference to the highest authority, when laid before him by counsel; he has also uniformly held in derision all legal and moral qualifications in those who have been admitted by him to the practice of law. No matter whether the applicant for admission to the bar possessed any more legal science or respect for morals than his Honor, if he only had good teeth, and a head conformable to the best specimens of crani- ology, he was sure of success, since his Honor has declared that, by looking to the former, he could sufficiently ascertain the legal sci- ence, and by feeling of the latter, he could tell the moral character of the applicant. And that these are his sober opinions, if he has any of this class, is fully evident from his uniform conduct in respect to the examination and admission of attorneys and coun- selors at law. One instance deserves to be mentioned. It hap- pened, one evening at a convivial party, that a young military officer had the good fortune to solve some trifling riddle or conundrum which had been proposed, as original, by the judge. To reward such an effort of genius, his Honor immediately con- ferred upon this gentleman the degree of counselor at law. * * *

Being once threatened with an impeachment for some gross malfeasance in office, he answered, with great composure, " Uncle Sam knows too well how much it costs to try a judge to listen to a territorial impeachment." * * *

He has often been known, while sitting in court, to direct the clerk to enter him absent, although, to mere mortal eyes, he ap- peared to be really present in propria persona ; and every person present would be willing to swear with both hands (were it not for the record, which cannot be falsified except by his Honor) that the presiding judge was still on the bench. This questionable

figure has generally been observed, however, to lose much of its sparkling brilliancy when the spirit was absent; yet it sometimes speaks on critical emergencies. During the operation of one of these enchantments, and while a learned and independent advo- cate was reflecting in pretty severe terms upon the proceedings of the court, one of the associate judges turned involuntarily toward the seat of the presiding judge, and asked whether such a con- tempt was to be endured; the strange oracle replied, or appeared to reply, " I consider myself absent." On one occasion, while a suit was being tried, feeling sleepy, he ordered the clerk to enter in the journal that he was absent; and, shoving his chair back against the wall, he closed his eyes as if gone to the land of Nod. Meantime, the arguments of counsel were going on; and as one of the attorneys said something that thwarted his views, he sud- denly moved forward to correct him. The attorney tartly sug- gested, " I thought your Honor was absent; the journal of the court says so." This nonplused the judge, who ordered the record of his absence to be erased.

It was not merely the public who became dissat- isfied : the judges grew disgusted with each other, and, even while sitting as a court, quarrels were fre- quent between Judges Woodward and Witherell. Judge Witherell generally sat with his back towards Judge Woodward, and often, after Woodward had delivered an opinion, Judge Witherell would say, "I don't see any sense in that view of the case ; there is no argument in it ; " and doubtless Judge With- erell was often correct. Many of the citizens tried, especially from the year 1820, to have Judge Wood- ward removed, deeming him mainly responsible for the irregularities of the court. The articles in the Gazette were endorsed editorially, on November 22, 1822; and on November 29, in speaking of the memorial to be presented to Congress, the Gazette said:

Another prayer of this petition is, that the law under which our present Supreme Court is constituted may be repealed, and that a law may be passed providing for the appointment of judges, and limiting the term of their service to four years. The object of praying for the repeal of this law is, if possible, to effect an imme- diate riddance of our present judges (we mean the majority of them), and, if that be impracticable, to leave another door open for them to go out at the end of four years.

At length, on January 30, 1823, deliverance came. Judge J. D. Doty was appointed to hold courts in the counties of Mackinaw, Brown, and Crawford ; and on March 3, 1823, Congress limited the term of the other judges then in office to four years from February 1, 1824. The same year Judges Wood- ward and Griffin resigned. Judge Woodward went to Tallahassee, where he died July 12, 1827. Solo- mon Sibley and John Hunt were appointed to the vacant judgeships ; and on February 5, 1825, Con- gress provided that at least two judges must be present at the opening of a session of the court. An Act of April 13, 1827, provided that sessions should begin on the first Monday of December and May. The same year John Hunt died, and in 1828 James Witherell resigned, to become secretary of the Territory. In June 1828, the court met for the first time in the new court-house or capitol. Early in 1832 the terms of Judges Woodbridge, Sibley, Chipman, and Doty expired ; and on February 3 a

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complimentary dinner was given them at the Man- sion House. Four years later, by Act of March 26, 1836, the Supreme Court of the Territory was abolished, and its business transferred to the State Court, provided for by the same Act.

The names and terms of the several territorial judges were as follows : 1805-1808, A. B. Wood- ward, Frederick Bates, John Griffin; 1808-1823, A. B. Woodward, John Griffin, James Witherell ; 1823- 1827, James Witherell, Solomon Sibley, John Hunt, James D. Doty; 1827-1832, Henry Chipman, Solo- mon Sibley, Wm. Woodbridge, .J. D. Doty ; 1832- 1837, S. Sibley, George Morell, Ross Wilkins, David I:vin.

In its earliest days the old records show that the court was opened in semi-military style, as follows : "Attention the whole ! Silence on penalty ! Oyez ! give ear you who wish your cause heard." As a matter of course, the inevitable Peter Audrain, who had been clerk of everything from time immemorial, was the clerk of this court. He continued to hold the office until September, 1819. Many evidences of his work remain, but the records, especially in the latter part of his term, were so carelessly kept or wholly neglected, that all the leading attorneys, such as Messrs. Hunt, Lanman, Sibley, McDougall, Larned, and others, protested against his continu- ance in office ; and in September, 1819, George Mc- Dougall was appointed clerk pro tem .; the same month he was relieved, and James Duane Doty was appointed. He held the office but one year, and in October, 1820, Melvin Dorr was appointed, Charles C. Trowbridge acting as his deputy. This brings us to another of the characteristic acts of Judge Wood- ward. It should be borne in mind that Judge Woodward seldom consulted Judge Witherell upon any question, as the latter was so practical and straightforward that he could never agree with him. Judge Griffin, on the contrary, was easily persuaded by Woodward, and therefore the appointments and decisions of the court were really made by Wood- ward. In 1822 Mr. Dorr decided to resign the office of clerk in favor of his deputy, Mr. Trowbridge. Upon communicating his intentions to the bar, all the members of that body united in a recommenda- tion of the deputy, which recommendation, with the resignation, was presented to the court. In the even- ing the judge called at the office where the deputy was making up the records, and complimented the young official upon the handsome testimonial he had received from the members of the bar, intimating that, as a matter of course, the appointment would be given him. "By the way," said the judge, as he was leaving, " I have a young friend, Lucius Lyon, just arrived from Vermont, who is in want of em- ployment ; I wish you would make him your depu- ; ty." Mr. Trowbridge replied that he should prefer

to perform all the labor himself, and save the expense of a deputy. The next morning, in a cheer- ful voice, he read the records of the preceding day, which, being signed, as approved by Judge Wood- ward, were handed back with this order: "Mr. Clerk, enter, as the order of the court, that the resignation of Melvin Dorr is accepted, and that John Woodward, of Harrisburgh, Pennsylvania, is appointed clerk, and that Jonathan Kearsley, of Detroit, is appointed clerk pro tem., until the arrival of the said John Woodward." If the roof of the old Indian council-house had fallen, it could not have been a greater surprise to Judge Witherell, to the bar, and to the disappointed deputy. John Woodward proved to be the father of the judge, an old man on the verge of the grave. He died at Erie, Pennsylvania, on his way to Detroit. Mr. Kearsley entered upon the duties of deputy clerk, and continued in office until 1827, when John Winder was appointed, and served during the rest of the existence of the territorial court.

Supreme Court of State of Michigan.

The Supreme Court of the State succeeded the corresponding territorial court, by Act of March 26, 1836. The jurisdiction was originally, and is now, chiefly appellate, most of the cases coming before it being cases taken up from the Circuit Courts. The first three judges were appointed by the governor and Senate. The term of office was seven years. In addition to their duties as judges of the Supreme Court, each judge presided over one of the Circuit Courts of the State, and the judge first appointed was the presiding judge; Act of July 16, 1836, named them as chief justices and associate justices. By the Revised Statutes of 1838, one additional asso- ciate judge was provided for, and by law of April 3, 1848, provision was made for a fourth associate justice. The Constitution of 1850 provided for eight circuits, the judges of which were to sit as judges of the Supreme Court. By law of 1851, none of them were to sit as supreme judges until 1852. By law of February 16, 1857, the constitution of the court was greatly changed, and a new Supreme Court provided, to consist of one chief justice, to be elected as such, and three associate justices. They were to be elected on the first Monday of April, 1857, and every second year thereafter. The judges elected at the first election were to be divided into four classes, to serve for two, four, six, and eight years each, and judges elected subsequently were to serve for eight years. The salary was $2,500. By the terms of the same Act, the judges of the Supreme Court ceased to sit as circuit judges. Un- der Act of January 16, 1873, the salary was increased to $4,000, and in 1887 to $5,000. By Act of Febru- ary 5, 1887, an additional associate justice was pro-

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vided for, to be elected on the first Monday of April, 1887, to serve for eight years, and one judge was to be elected every two years thereafter for a term of ten years. Act of March 26, 1836, ordered that sessions of the court be held regularly in Wayne, Washtenaw, and Kalamazoo counties, the session in Wayne County to begin on the first Monday in September each year. By Revised Statutes of 1838, the session in Detroit was to begin on the first Tues- day of January and June. By law of April 20, 1839, sessions in Detroit were to begin on the first Tues- day of January and August. By law of March 25, 1840, sessions of the Supreme Court were to "begin at Detroit on the first Tuesday in January, at Ann Arbor on the fourth Tuesday in January, at Kala- mazoo on the first Tuesday in September, and at Pontiac on the third Tuesday in January."

An Act of April 4, 1851, provided for five terms, to begin on first Monday of January, May, July, and third Monday of October, the January Term to be held at Detroit, May Term at Kalamazoo, July Term at Adrian, and October Term at Pontiac. The fifth term was to be held at Lansing, at a time to be determined by the court, and the fourth Tues- day of January was fixed upon.

A law of February 16, 1857, provided for four sessions yearly, to begin on the first Monday of January, May, July, and October, the January and July Terms to be held at Lansing, and May and October Terms at Detroit. By Act of February 14, 1859, sessions were to begin on the Tuesday after the first Monday in April, and the April and October Terms were to be held at Detroit. By Act of April 22, 1873, all sessions of the Supreme Court were thereafter to be held at Lansing ; and the same Act provided for four terms each year, to commence on the Tuesday after the first Monday of January, April, June, and October.

The State Supreme Court held its sessions in the old Williams Block, on the southeast corner of Jef- ferson Avenue and Bates Street, until the spring of 1844, when it began to hold its sessions in the old seminary building, which the State had bought on August 19, 1837. Sessions continued to be held there until 1855, when, the building having been sold to the city, the court removed to the old Wayne County Building, on the southeast corner of Congress and Griswold Streets, remaining there until May 3, 1858, when it moved to the Odd Fellows' Hall, on Woodward Avenue. From there the court was moved to the Seitz Building, on the south side of Congress near Griswold Street, in the room afterwards used by the Superior Court. It remained there until removed to Lansing.

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The history of Detroit and Michigan; or, The metropolis illustrated; a chronological cyclopedia of the past and present, Vol I, Part 40

Author: Farmer, Silas, 1839-1902 Publication date: 1889 Publisher: Detroit, S. Farmer & co Number of Pages: 1096

Author: Farmer, Silas, 1839-1902
Publication date: 1889
Publisher: Detroit, S. Farmer & co
Number of Pages: 1096