THE SUPREME COURT
Edited by Judges Samuel T. Douglas and Benjamin F. Graves
1897 - Pages 1 - 17
The first political and judicial control of Michigan by the United States was under and by virtue of the Immortal Ordinance of 1787, which was the Bill of Rights for the people of the territory northwest of the Ohio river. It was scarcely less important than the Constitution of the United States adopted the same year by the same body. It was a compact between the original states and the people of the territory and the states to be afterwards erected therein. It was tolerant in spirit, guaranteeing to all persons freedom of religious belief and security in form of worship. It was humane, extending to persons held in custody the benefit of habeas corpus and the right of trial by jury. It was just in that it guaranteed full compensation for property taken or services exacted of the individual for the public benefit, and proportionate representation in the legislature. On the other hand, it inhibited forever the infliction of cruel or unusual punishments; the depriving a man of his liberty or property, except by the law of the land or the judgment of his peers; the enactment of any law impairing private contracts or engagements, bona fide, without fraud. Finally it proclaimed that "neither slavery nor involuntary servitude shall ever exist in the territory, other than for the punishment of crimes of which the accused shall have been convicted."
Geographically, Michigan was included in the Northwest Territory; but actually it was not affected by the Ordinance until nine years after its adoption. The Jay Treaty was signed June 17, 1796, and on the eleventh day of July, the same year, the flag of the United Stales floated over the village and garrison of Detroit for the first time, although fifteen years had elapsed since the close of the Revolution. The first American settlement within the borders of Michigan was in 1793. More than a century and a half earlier the brave and gentle Jesuit priests had established missions at Michilimackinac and elsewhere. Even the settlement of Detroit was begun in 1701, under the leadership of Cadillac and a Jesuit missionary, with one hundred Frenchmen. Sixty years later the garrison and the town surrendered to the English, who held possession thirty-five years, and evacuated only in pursuance of [he treaty of 1796. The British again took possession when Hull surrendered to General Brock, August 16, 1812. This occupation, however, was little more than a year, as General Harrison won the battle of Detroit September 29, 1813, and after that the authority of the United States continued absolute. The records of the courts established by the French during the long period of their occupation are not available, if indeed any were preserved. Information as to the kind of courts and the judicial methods is dependent on tradition, and probably the imagination or conjecture of a capable historian has sometimes supplied the facts. The descendants of the early French settlers for a century and a half had in their veins a very considerable proportion of Indian blood. The races fraternized and the half-breed population retained many of the primitive ideas of justice. It is related that Robert Navarre, a royal notary and under-delegate of the Intendant, exercised the functions of a magistrate in 1730. The authority of the local commander was supreme and the exercise of it despotic. Voluntary associations of merchants and traders settled all matters of dispute between themselves by arbitration. There were no lawyers, and judges who were appointed never came to the territory. It was the rule to send criminals! to the home government for trial. There was one official, however, who was willing to assume all kinds of responsibility. He was Philip de Jean, nominally a justice of the peace, but in reality a veritable "Poo-Bah." lie not only pronounced the death sentence upon prisoners found guilty of larceny, but in two or three instances, was the "Lord High Executioner," to carry out the sentence. One of these unfortunate culprits was a woman accused of stealing fifty dollars from her employer. This notorious magistrate had been a notary under the French regime, and was a legacy to the English succession much esteemed by Lieutenant Governor Hamilton, the arbitrary local ruler, who came after the treaty of 1763. Philip de Jean may be counted as the first Supreme Court with all of the paraphernalia and instruments for the conduct of a trial and the execution of its own decrees. In a very interesting article on the early "Judicial System." published in the "Magazine of Western History," the late Judge Campbell says:
"The celebrated Quebec Act of 1774 provided that the civil law of Paris and the criminal law of England should prevail in this region. In 1778 the region was formally included in the district of Hesse, and Detroit was made the seat of justice. William Dumpier Powell was the first judge who presided over the court, and afterwards was Chief Justice of Upper Canada. Prom this time on the courts sat regularly. Besides the first court, there were courts of common pleas and quarter sessions. The common pleas judges were all reputable laymen, and the courts were held in high esteem. Louis Beaufait was the first Chief Judge and James May, Patrick McNiff, Charles Dirardin and Nathaniel Williams were associates. All were old citizens, familiar with the French and English, and allied by marriage or blood with the French inhabitants. Things continued in this shape until Jay's Treaty went into operation in 1796, when the British courts were removed to the other side of the river."
The authority of the United States was then extended over the region and the Ordinance for the government of the Northwest Territory became operative therein. The officers were a governor, a secretary and three judges, who composed the Supreme Court. The government had already existed for eight years, with headquarters first at Marietta, and afterwards at Cincinnati. It was subsequently (in 1800) removed to Chillicothe. The judges, with the governor, constituted a legislature, empowered to compile laws selected from the statutes of the original states, but not to enact original laws. All of the legislation was subject to the approval of Congress. The new territory acquired by the Jay Treaty, which included a strip of Northern Ohio, Indiana and Illinois, and all of Michigan and Wisconsin, which contained settlements, was attached to the Northwest Territory as the county of Wayne. Incidentally, it may be mentioned that the first appropriation for a court in Detroit after it came under control of the United States was in this year, and the sum appropriated was eighty-five dollars. Winthrop Sergeant, Secretary of the Territory, was then acting governor. The judges were John Cleves Symmes (one of the three originally appointed in 1787), General Rufus Putnam, and George Turner. One session of the Supreme Court was held in Detroit annually, and Judge Symmes, who lived near Cincinnati, never missed a session, until the territory was divided by setting oil Ohio in 1800; although it was necessary to make the entire journey on horseback. At the same time 1800) the Territory of Indiana was erected with jurisdiction over the remaining portion of the Northwest Territory. In his introduction to "Michigan," of the American Commonwealth Series, Judge Cooley says what is pertinent here:
"The changes of sovereign as well as of subordinate jurisdiction have been greater in Michigan than in any other part of the American Union. France, Great Britain and the United States have successively had dominion over it, and under the United States it was part of the Northwest Territory and of the Territory of Indiana before it became the Territory of Michigan. As Michigan Territory it passed though all the grades of subordinate jurisdiction, and the circumstances attending its admission to the Union made its history at that period quite unique."
General William Henry Harrison was appointed Governor of Indiana Territory, and his efforts to introduce negro slavery may be mentioned as one of the curious facts of history. Several petitions were sent to Congress praying to have the Ordinance of '87 suspended for a term of years so that slave labor might be employed. The first petition was ignored, the second received a favorable committee report, but failed in the house; a third was under consideration when the subject was brought into the courts for an opinion. The Chief Justice of the Territory settled the question by a decision from which there was no appeal. He declared it could not exist in the Territory either by the law of nations, the common law, or domestic legislation. He held that the ordinance was absolutely inhibitive and concluded as follows; "I am therefore bound to say, and do say, that a right of property in the human species cannot exist in this territory, except as to persons in the actual possession of the British settlers on the sixteenth day of June, 1796, and that every man coming into the territory is by the law of the land a free man, unless he be a fugitive from lawful labor and service in some other American state or territory; and then he must be restored."
By an Act of Congress January 11, 1805, Indiana Territory was divided. Its north boundary was fixed by a line extending cast from the most southerly bend of Lake Michigan until it intersected Lake Erie. The Territory of Michigan, set off during the same year, was bounded on the south by the line mentioned; on the west by another line drawn north from the first through the middle of Lake Michigan to its northern extremity, and thence north to the boundary of the United States. The British possessions were on the north and east. A separate territorial government, modeled after that of the Northwest Territory, was erected for Michigan June 30, 1805. The principal settlement was of course at Detroit, whose population was about four thousand. It had been incorporated as a town three years before, and was incorporated as a city a year after.
The history of jurisprudence in Michigan, so far as it relates to the Supreme Court, is properly divided into four epochs: First, from 1805 to 1823; second, from 1824 to 1835; third, 183610 [850; fourth, after 1850. Within the fourth period several modifications have taken place. During the first epoch the Supreme Court consisted of three judges, appointed by the President of the United Stales, with the consent of the Senate. These judges sat as a court with common law jurisdiction, and as a legislative body with the governor ex-officio as chairman. The court had exclusive jurisdiction of land cases and capital offenses; concurrent jurisdiction in ail other civil cases where the amount in controversy was of the value of two hundred dollars. The territory was divided into three districts and it was provided that one of the Supreme Judges should preside in each district, with two associates who were laymen. These districts were designated as Detroit, Erie and Huron; and Mackinaw district was added soon afterwards. Inferior courts were organized for the transaction of small civil business. The titles to lands were practically indefinable, or at least questionable, and the confusion was intensified by the burning of Detroit and destruction of the records during the first year of territorial existence. Far the most complicated business of the court was found in the ascertainment and determination of titles to realty. Congress came to the rescue in 1807, with an act providing that title to lots and lands should be vested in the persons who had been in possession since 1796.
President Jefferson appointed for the first governor General William Hull, of Massachusetts, a man of large ability and excellent reputation, who had been prominent in civil office and military command; a man of refined manners and little adaptability to conditions on the frontier. For judges the President appointed Augustus Brevoort Woodward, Samuel Huntington and Frederick Rales. Judge Huntington, who was one of the judges of the first Supreme Court of Ohio, and afterwards governor of that state, declined to serve, and John Griffin was appointed in his place. Woodward was in many respects a remarkable character — original, certainly. He was possessed of considerable ability and a great deal of intellectual force. He had a liberal knowledge of the law, considerable learning and more pedantry. He was a strange compound, frequently stubborn and wrong-headed — generally audacious and capricious. He was responsible for the plat of Detroit, which was laid out on a scale of magnificence quite out of harmony with the times and the surroundings. Broad avenues, starting from a common center which he styled the Circus Maximus, were projected far into the woods, and located by the aid of astronomical instruments. Although his scheme as a whole was impracticable, the visitor to Detroit as it stands to-day will find a city more beautiful for the nightly vigils and consultations of the heavenly bodies by the first Chief Justice, when he planned and platted the "City of the Straits." Another marvelous creation of his mind was the Catholepistemiad, incorporated in 1817, with an array of professorships bearing unpronounceable Greek and Latin titles; govemail by a president, vice president and other officials. While you smile at the conceit and vagaries of the man whose peculiar genius is shadowed forth by this dream, do not fail to remember that the Catholepist of the eccentric Chief Justice has become the University of Michigan, to which so many lawyers of the state are debtors. Judge Woodward quarrelled with every member of the court whom he could not control. His henchman was Judge Griffin, and it was not unusual to witness a deadlock in matters of legislation between Woodward and Griffin on one side, and Governor Hull and Judge Bates on the other. The quarrels were frequent and unseemly; so that Judge Bates, a man of high character and honorable purpose, resigned after two years of service and removed to St. Louis, where he won distinction at the bar. James Witherell was appointed to succeed Bates. He was a good lawyer, an upright judge. Firm in his own convictions he could not be influenced by another to favor legislation or a judicial decision which his conscience did not approve. He remained a member of the court to the end of the first epoch and was reappointed under the second.
In March, 1823, Congress enacted a law transferring the legislation to the governor and a council of nine citizens, appointed by the President and selected from eighteen elected by the people of the territory. Sessions of sixty days were authorized for legislation and all laws were subject to the approval of Congress. By the same law the term of judges of the Supreme Court was reduced to four years, and their powers were enlarged by extending them to equity cases. It was further provided that all offices should be vacated February 1, 1824, in order that the new system might be inaugurated in an orderly manner. The first court under the second epoch was composed of James Witherell Chief Justice, Solomon Sibley and John Hunt. In 1827 Henry Chipman was appointed to fill a vacancy occasioned by the death of Judge Hunt. Judge Witherell resigned in 1828 to accept the secretary ship of the territory and was succeeded by William Woodbridge, of Connecticut, who was secretary' of the territory at the time of his appointment to the bench. The two simply exchanged offices, by the aid of the President and consent of the Senate. In 1827 Judge Sibley was reappointed and made Chief Justice. His associates appointed at the same time were George Morell. of New York, and Ross Wilkins. of Pennsylvania. All three of these were reappointed in 1832 and served the admission of Michigan as a state in the Union. During the first epoch the judges, with their respective terms of service were: Augustus H. Woodward and John Wilkins, from 1805 to 1823; Frederick Hates, from 1805 to 1807; James Witherell, from 1808 to 1823 — only four during the period of eighteen years. In the second epoch of thirteen years, seven judges were appointed, one of whom died in office: James Witherell, 1824 to 1828; Solomon Sibley, 1824 to 1837; John Hunt, 1824 to 1827; Henry Chipman, 1827 to 1832; William Woodbridge, 1828 to 1832: George Morel I, 1832 to 1837; Ross Wilkins. 1832 to 1837.
Solomon Sibley is described in history as "one of the wisest and best men that ever lived in Michigan." The judges who sat with him were lawyers of respectable talents and most of them men of high character. Henry Chipman was a native of Vermont, practiced law some years in South Carolina, and removed to Detroit prior to his appointment. His record on the bench is clean, and long after his retirement lie was a respected citizen of the state.
WOOD BRIDGE. William Woodbridge was a native of Connecticut, was principally educated there, though soon after the Revolutionary War his father emigrated with his family to Marietta, on the Ohio river, where he spent some years of his youth, and several of his active professional life. He came to Detroit in 1814, having been appointed secretary of the territory by President Madison. He was a man of marked ability, of courteous manners, of liberal learning in the law. of considerable general culture, and a commanding figure in the history of the territory and of the early years of the state. He was a member of the convention which framed the state constitution of 1835, became governor in 1840, and was United States senator from 1841 to 1847. All of which positions he filled with ability and fidelity. He died in 1861.
WILKINS was a native of Pittsburg and resident of that city at the time of his appointment to the territorial judgeship. Before the admission of the state into the Union he was appointed Judge of the United States District Court, and discharged the duties of that office until 1871, when he availed himself of the option of retiring on full pay, having passed the mark of seventy years. He was a member of the regular constitutional convention of 1836, and also of the irregular convention held in December of the same year, to accept the proposition of Congress giving the Upper Peninsula in exchange for the strip claimed and taken by the state of Ohio. He was a man of fine legal acquirements and made a very respectable judge. He had some brilliant qualities useful to the advocate, but his mind was not eminently judicial or well balanced.
The stale having attained a population of sixty thousand, a convention was held in 1835. The constitution framed by this convention was ratified by popular vote and the enabling act for the admission of the state was approved June 15, 1836, after much wrangling over a strip of disputed territory embracing four hundred and seventy square miles, over which Ohio had extended her jurisdiction despite the fact that it was outside of the original boundary line setting off her territory. Although the subsequent irregular proceedings by which the convention accepted a compromise occasioned much dissatisfaction and discontent, the sober second thought commended the solution because it was peaceful. A deliberate judicial opinion today would doubtless affirm that the state of Michigan profited by the bargain.
The constitution, which became operative upon the admission of the state, provided for a division of the state into three circuits and the appointment of three Judges of the Supreme Court, each to hold court in the several counties of his circuit, and all of whom should sit together, as a court in band, to consider and determine appeals. The powers of these judges in circuit were restricted and their labors correspondingly reduced by a provision in the constitution for a separate court of chancery. To this court was granted exclusive primary jurisdiction of all chancery cases, with the right of appeal from the chancellor to the Supreme Court. The judges were appointed by the governor and confirmed by the Senate, for a term of seven years. The first Supreme Court was composed of William A. Fletcher, Chief Justice, George Morel! and Epaphroditus Ransom, Associate Justices. The circuit assigned to the Chief Justice comprised the counties of Monroe, Lenawee, Hillsdale, Jackson, Washtenaw, Oakland and Saginaw; that assigned to Judge Morell comprised Wayne, St. Clair, Lapeer, Michilimackinac (which lias since been abbreviated) and Chippewa; that assigned to Judge Ransom comprised Berrien, Cass, St. Joseph, Calhoun, Kalamazoo, Allegan, Kent. As under the territorial system two associates were chosen for each county, who were not necessarily lawyers and whose presence on the bench was not essential to the validity of a proceeding; they were elected for a term of four years. The Supreme Court was a peripatetic body under this constitution, holding one term each year in Wayne, Washtenaw and Kalamazoo counties. Judge Fletcher resigned in 1842, and Alphcus Filch was appointed in 1843 to succeed him as a member of the court, while Judge Morell succeeded him as Chief Justice. Daniel Goodwin succeeded Judge Morell. Warner Wing succeeded Judge Filch, when the latter was elected governor in 1845. Other Judges of the Supreme Court under the first constitution were Sanford M. Green, appointed in 1847 to succeed Judge Ransom, Daniel Good- win, George Miles, Abner Pratt, Edward Munday, George Martin and Charles Wiley Whipple (who was appointed in 1838 to preside over an additional circuit created by statute). The whole number appointed and in service from 1837 to 1850 was twelve. Such of the Judges of the Supreme Court as are not represented in this volume by portrait and biography are briefly sketched in this article.
FLETCHER. Chief Justice Fletcher came to Michigan several years before the organization of the State government, as one of the commissioners for that purpose, lie rendered valuable service in preparing the compilation of Territorial Laws, known as the Code of 1827, and the first Revision of the Statutes of the State known as Revised Statutes 1838, was prepared by him and under his supervision. He was a man of commanding presence, a good lawyer and an able judge.
MORELL. George Morell, who was appointed a member of the first Supreme Court under the State Constitution, had been one of the Judges of the Territorial Court for five years prior to that time. He was a Massachusetts man by birth and education, but came to the territory of Michigan from New York State, where he had gained considerable reputation as a practising lawyer. He had learned in the old school and his training as a lawyer was not excelled by that of any other Judge on the bench: but he was not always temperate, and sometimes incapacitated for severe application.
RANSOM. Epaphroditus Ransom was a native of Shelburne Falls, Massachusetts, born in 1797. He read law under the instruction of Judge Taft, at Townsend, Vermont, with the Judge's son, Alphonso Taft, the eminent jurist and statesman, late of Cincinnati, and father of Judge William H. Taft, of the United States Circuit Court of Appeals. He was graduated from the Northampton Law School in 1823, and achieved considerable prominence both in the law and politics in the state of Vermont. He settled in Michigan in 1834. His residence was in the beautiful village (now city) of Kalamazoo, which is the commercial center of one of the best agricultural regions of the state. At one time he was a proprietor of considerable real estate in and adjacent to the village, much of which was devoted to agriculture. He took a deep interest in agriculture and was mainly instrumental in organizing the Stale Agricultural Society. He was a man of large stature, dignified and commanding presence, genial manners, of strict integrity, and of good sense and fair legal attainments. These qualities made him a very popular Circuit Judge. Without being in any sense a great jurist, he was a very respectable one. and a safe, conservative and valuable member of the Supreme Court. It may be doubted whether a judicial career was entirely congenial to his taste or satisfied his ambition. January 1, 1848, and before the end of his second term as a member of the Supreme Court, he became governor of the state, the duties of which he discharged with fidelity and ability. From that vantage ground he aspired, but unsuccessfully, to the office of United States senator. The expiration of his term as governor was the end of his public career in Michigan. In politics he was a staunch democrat and strongly opposed to the extension of slavery. In private life he was a very enterprising and public-spirited citizen.
GOODWIN. Daniel Goodwin was born at Geneva, New York, in January, 1709, and died in Detroit at the age of eighty-seven. He was graduated from Union College, having for associates and classmates some of the most eminent men of his native state. He settled in Detroit in 1825, where his father was a prominent physician. He was appointed United States District Attorney by President Jackson, and was a member of the "snap convention" which accepted the terms imposed by Congress as a condition of the admission of Michigan into the Union. He was appointed Justice of the Supreme Court and Judge of the First Circuit (which included Wayne county) for the term commencing July 18, 1843. He remained upon the bench until October, 1846, and then returned for a time to private practice. He was a member of the Constitutional Convention of 1850, and the next year was elected Judge of the Upper Peninsula, and was continued in that office by re-elections until failing health compelled his retirement. His service on the bench extended over a period of about thirty years. He was a man of small stature, dark complexion, reserved, quiet and unassuming manners, and unquestioned integrity. He was a cautious, painstaking and studious lawyer, of a clear and vigorous intellect, distinguished perhaps more for acuteness than grasp, and a learned, safe and conservative judge. He filled every public position he occupied with honor to himself and credit to the state.
WlNG. Judge Warner Wing was born in Marietta, Ohio, in September, 1805. He was of New England stock, his father having been a native of Conway, Massachusetts. He was a graduate of Litchfield Law School. He came to Michigan while it was yet a territory and settled at Monroe, where he always continued to reside. He was a member of the Supreme Court, first by appointment, and afterwards by election, and Presiding Judge of the First and temporarily of the Second Circuit, from the autumn of 1846 to the organization of a separate Supreme Court in 1858. After that he returned to the practice of his profession, acting for many of the later years of his life as counsel for the Lake Shore and Michigan Southern Railroad Company. He was a man of medium stature, of a florid complexion, of an ardent and impulsive temperament, modest and unassuming manners, and a very genial and companionable disposition. He had a great flow of wit and humor which added zest to his companionship. He was thoroughly upright and conscientious, of good judgment and clear insight as to the credibility of witnesses and the force of evidence. His legal acquirements were respectable, and he was industrious and painstaking in the discharge of his judicial duties. His judgments were almost always correct and commanded the respect and confidence of the bar and the public. He seemed to be greatly aided in forming his conclusions by his sound and delicate moral sense, and a sort of feminine and unanalysable intuition. His exposition of the reasons for his judgment, especially when delivered orally — from want of logical order and method — sometimes failed to do justice to the judgments themselves. He was very conservative in matters of jurisprudence as well as in other things, and but little disposed to question established precedents. He was always a sincere democrat in politics, but never an extreme or active partisan.
MILLS. George Miles was born of New England parents, at Amsterdam. New York. He educated himself and took sufficient time to be thorough in his preparation for the practice of law; was admitted to the bar in 1822, and afterwards served as attorney for Allegheny county, New York. He was a well trained lawyer of respectable talents. The opinions which he prepared were concise and direct in reaching the points involved in any controversy. He died suddenly in 1849 while holding court at Marshall. He was a gentleman of fine address and good character, presiding on the bench with great dignity.
PRATT. Abner Pratt was a native of Otsego county. New York, and was born in 1801. lie was reared upon a farm and had very limited educational advantages, and but little early education, He went through some pretty rough experiences in early manhood, some of them on a Mississippi river flatboat, after which, rather late in life, he studied law and was admitted to the bar. After a brief professional experience in Rochester. New York, he came to Michigan, locating in Marshall. This was in 1839. There he soon became quite prominent as a lawyer and acquired a good practice. He was a Justice of the Supreme Court and Presiding Judge of a Circuit Court from 1851 until his resignation in 1857, soon after which be was appointed consul at Honolulu. He was a man of medium height, of muscular frame and strongly marked features; of frank and genial, but not very polished manners. He had considerable fund of humor and was a good story teller. His comic delineation of western life as he saw it, and of his own experiences on the Mississippi, were inimitable. He was a man of vigorous but undisciplined intellect, of much knowledge of human nature, and a goodly share of common sense. He was very decided in his opinions and in his likes and dislikes, and those usually found expression in very strong language, the emphasis of which he often endeavored to increase by the use of expletives. On the whole he was a unique and striking personality, and notwithstanding deficiencies which better early opportunities might have supplied, he was a very respectable judge.
MUNDY. Edward Mundy was born in New Jersey in 1794; was graduated at Rutgers and settled in the state of Illinois in 1819. He was a merchant in early life, both in his native state and in the west; removed to Michigan In 1831 and was admitted to the bar of the state in 1834. He was a delegate to the Constitutional Convention of 1835, served as lieutenant governor with Governor Mason, and was elected attorney general in 1847.
Five of the judges who had served by appointment under the Constitution of 1835 were elected members of the first court chosen under the Constitution of 1850, thus forming a connecting link between the old and the new. Some modifications of the judicial system were made by the framers of the second constitution. The Court of Chancery, with the office of Chancellor was abolished, and the Circuit Courts were granted chancery powers. The state was divided into eight judicial circuits, with a judge elected for each circuit by the state at large, for a term of six years. The eight judges presiding in these circuits constituted the Supreme Court of the state when sitting in band. The appeals from any of the circuits were heard and determined by the Supreme Court. The legislature was authorized, after six years, to provide for an independent Supreme Court composed of four judges who should not be required to preside in a trial court. It was further provided that the judges should be elected by popular vote. The eight judges first chosen under this constitution were Warner Wing. Sanford M. Green, Charles Wiley Whipple, Abner Pratt and George Martin, who had served under the first constitution; and Samuel Townsend Douglass, John Skinner Goodrich and David Johnson, then elected for the first time. Judge Goodrich died before qualifying, and Joseph Tarr Copeland was appointed to fill the vacancy. Judge Whipple died in 1855, and Nathaniel Bacon was appointed in his place. Judge Wing resigned in 1856 and was succeeded by Edward Hancock Custis Wilson. Before the end of the term for which the first judges were elected there was something of a revolution in the political sentiment of Michigan. The republican party had been organized and was strong enough to carry the election in that slate in 1857. The legislature whose session was held in January of that year, took action under the authority granted by the constitution and made provision for a separate Supreme Court. The four judges elected to constitute that court were George Martin, Randolph Manning, Isaac P. Christiancy and James V. Campbell. As Judge Martin had served under the first constitution and also as one of the eight judges under the second constitution, he was designated as the Chief justice, and the other three were Associate Justices. (The original act for the constitution of an independent Supreme Court required that the Chief Justice should be designated by the voters, but in 1867 this was changed by devolving the chief justiceship upon that one of the judges whose terms of office should soonest expire.) Immediately after the election Judges Douglass, Pratt, Green and Johnson, who had been defeated as candidates of their party, resigned in order to re-enter the practice without waiting for the term of the newly elected judges to begin, and the Governor forthwith appointed Benjamin F. H. Witherell, Benjamin F. Graves. Josiah Turner and Edward Lawrence to fill the vacancies. The independent Supreme Court was organized January 1, 1858. The term provided by the legislature was eight years, and so arranged that one judge should retire at the end of each period of two years, and the one longest in service should act as Chief Justice for the last two years of his term. Since 1857 the Supreme Court judges have not been required to sit in the circuits. In 1887 the number of judges was increased to five and the term fixed at ten years. The provision for the retirement of a judge at the end of each period of two years, and that of 1867 with reference to the Chief Justice were retained.
MARTIN. George Martin, who was carried over by election to the first Supreme Court under the second constitution, was the son of an innkeeper in Middlebury, Vermont, born in 1815. He was educated at Middlebury College, came to Michigan in 1836 and settled at Grand Rapids. He held the office of prosecuting attorney, but no other office until his election as one of the judges of the Supreme Court under the circuit system. He was re-elected twice, was Chief justice for a few years and died in office December 15. 1867. His long term of judicial service indicates qualities which secured considerable personal popularity. He was a man below medium stature, of pleasing address, agreeable manners and amiable disposition. He had quick perception, was a fluent though not strong speaker, and a graceful and facile writer. He was not in the least opinionated or dogmatic. On the contrary, his great defect was the want of strong and earnest convictions. He was never profound, but always plausible and too easily satisfied with plausibility. He was constitutionally indolent and. like other indolent judges, too much inclined to dispose of cases on some technical ground which would avoid the labor of disposing of them upon their merits. On the whole, it cannot be said that the jurisprudence is largely indebted to him. On the other hand, it is not seriously marred by his defects. For his associates on the Bench of the independent Supreme Court were all men of decided character and of marked ability. Truth compels us to add that in the later years of his life he became very intemperate.
MANNING. Randolph Manning was born at Plainfield, New Jersey, in 1804, read law in New York, where he practised for a short time, and settled at Pontiac, Michigan, in 1832. Me was a member of the Constitutional Convention of 183$, a senator in 1837, secretary of the State in 1840. and chancellor in 1842. which latter office he continued to hold until the office was abolished in 1847. Soon afterward he was appointed Reporter of the Supreme Court, which office he held until the close of the year 1850. He was elected a Justice of that Court in 1858, and was a member of it until his decease in 1864. He was a man of very simple and natural tastes, of unostentatious and genial, though sometimes reserved manners, of unquestioned integrity and sincerity, of strong and earnest convictions, thorough independence and a love of right and justice which was almost a passion. He was a learned lawyer. His opinions were always carefully and conscientiously prepared and clearly and concisely expressed. They are highly creditable contributions to the jurisprudence of the state. Within the range of his intellectual vision, he saw everything very clearly and distinctly, but he was sometimes wanting in breadth of view and in that sort of intuition which makes some men almost unerring judges of the value of human testimony.
WHIPPLE. Charles Wiley Whipple was born at Fort Wayne, Indiana in 1805. He was the son of Major John Whipple, an officer of the War of 1812, who won some notoriety in being fined for contempt by Judge Woodward, of the First Territorial Court of Michigan. The offense consisted in uncomplimentary remarks made on the street concerning that jurist. It was about the time when the factional quarrel in this court as a legislature was most bitter. Governor Hull remitted the fine, and at the instance of Judge Woodward was indicted by the grand jury for the exercise of such clemency. Judge Whipple was a graduate of West Point and afterwards studied law. He was secretary of the Constitutional Convention of 1835, and President Judge of a circuit in 1850, succeeding Judge Ransom as Chief Justice. He died in 1855, and was succeeded by Nathaniel Bacon. His service on the Bench was long and creditable.
JOHNSON. David Johnson was born in Sangerfield, New York, in 1809. He was admitted to the bar in that state and practised for a brief period in Genesee county. He came to Michigan and settled in Jackson in 1837. In politics he was a sincere and earnest democrat. He was honorable, high-minded and conscientious; of an ardent temperament and of a genial and social disposition, of quick, active and subtle intelligence. He soon took rank as a good lawyer and able advocate. He served one term in the legislature with considerable distinction, and was afterwards elected Circuit Judge and Justice of the Supreme Court for a term of six years, commencing January 1, 1857. He resigned shortly before the term expired and was nominated as one of the Justices of the new Supreme Court which came into existence January I, 1858, but his party then and long afterwards remained in a hopeless minority, and he was defeated. He was very popular as a Circuit Judge, and an able and useful member of the Supreme Court. lie was endowed with masculine sense and very well schooled in the principles of the law. Moreover, he was high-toned, independent, impartial and abundantly proof against the acts and influences which so often beset a judicial career.
BACON. Nathaniel Bacon was born in Ballston, New York, in 1802, was graduated from Union College, studied law at Ballston Springs, and practised five years in Rochester before settling in Niles, Michigan, in 1833. He was prosecuting attorney in 1847, but held no other office except that of judge, and filled the judicial office only for the remainder of Judge Whipple's term. Politically he was a whig of the anti-slavery school, and a charter member of the republican party; a strong advocate of temperance, and a Presbyterian elder.
WILSON. Edward H. C. Wilson, appointed in November, 1856, to succeed Judge Wing, was a native of the eastern shore of Maryland, born August 6, 1820. He was graduated from Washington and Jefferson College, Pennsylvania, at the age of eighteen, studied law in his native state, and came to Michigan in 1845. He was prosecuting attorney of Hillsdale county for a term, and Circuit Judge for two terms. His service on the Supreme Bench extended over a period of little more than a year.
WITHERELL. Benjamin F. H. Witherell had the distinction of serving as the successor of Judge Douglass, by appointment, from May, 1857, to December 31st of the same year. He was a son of Judge James Witherell, of territorial fame; born in Fairhaven, Vermont, in August 1797, and came to the territory of Michigan with his father in boyhood. He was a member of the legislature in the forties, and of the Constitutional Convention of 1850. He inherited a predilection for the law and was to some extent devoted to literature. He was chosen President of the State Historical Society, and gave to its affairs considerable attention. As a presiding judge he pronounced the only death sentence upon a convict in the state of Michigan, and in that case the prisoner was fortunate enough to escape. Turner. Josiah Turner served as Judge of the Supreme Court by appointment of the Governor from May to December 31, 1837, vice Johnson resigned. He was born at New Haven, educated at St. Albans and Middlebury College, Vermont, and came to Michigan in 1838. He had held the office of county judge, was probate judge at the time of his appointment to the Supreme Bench, and afterwards held the office of Circuit Judge until 1881. In early life he was a democrat, but became a republican upon the organization of that party. He was appointed United States Consul to Amherstburgh. Ontario, by President Garfield, and served through that and the two succeeding administrations.
LAWRENCE. Edward Lawrence was a native of Middlebury, Vermont, and came to Michigan upon the completion of his education in 1836. He was a journalist for some time, publishing the "Michigan State Journal;" was a member of the legislature, was nominated three times as the unsuccessful whig candidate for Congress, and generally active in politics. His service on the Supreme Bench was from May to December, 1857, to fill the vacancy occasioned by the resignation of Judge Johnson. He was a good lawyer and a man of marked ability.
under the constitution of 1850, as modified and made operative by the law of 1857, the changes and succession of Judges in the Supreme Court have been as follows: Judge Manning died in 1864. and was succeeded by Thomas M. Cooley, who was first appointed to fill the vacancy and then elected in 1865 for the remainder of the term, and re-elected twice; serving continuously until May, 1885, when he resigned to accept the chairmanship of the Interstate Commerce Commission. Judge Campbell was re-elected three times, served twenty-two years and died in office March, 1890. Edward Cahill, of Lansing, was appointed to fill the vacancy occasioned by Judge Campbell's death, and served from March to December 31, 1890. Judge Christiancy was re-elected twice and resigned in February, 1875. lo accept the office of senator of the United States. Isaac Marston was appointed to fill the vacancy and elected for the residue of that term. He was then re-elected as his own successor for a full term, which expired December 31, 1889. He resigned in February, 1883. and Thomas R. Sherwood was appointed and then elected to fill the unexpired portion of the term. John W. Champlin, of Grand Rapids, was elected in 1883 and served one term of eight years, which expired December 31, 1891. Allen B. Morse, of Ionia, was appointed for the residue of Judge Cooley's term. He had already been elected for the term beginning January i, 1886. His service on the Bench continued until August 30, 1892 when he resigned. Charles D. Long was elected in 1887 for a term of ten years beginning January 1, 1888. John W. McGrath of Detroit, was elected in 1890 for the residue of Judge Campbell's term, and served from January 1, 1891, to December 31, 1895. Claudius B. Grant, of Marquette, was elected in 1890 for a full term of ten years. Robert M. Montgomery was elected in 1892 for a full term. George H. Durand, of Flint, was appointed in 1892 to fill a vacancy for a few months, occasioned by the resignation of Judge Morse. Frank A. Hooker was elected first in November, 1892, for the residue of the term of Judge Morse, and was elected in 1894 for a full term, beginning January 1, 1895. Joseph B. Moore was elected in 1895 for the term beginning January 1, 1896. The personnel of the court at present is Charles D. Long, Claudius B. Grant, Robert M. Montgomery, Frank A. Hooker, and Joseph B. Moore. Charles H. Hopkins is Clerk and William D. Fuller, of Grand Rapids, Reporter.
Recapitulation. The whole number of judges of the Supreme Court who served during the territorial period was eleven, and the time covered was thirty-two years. The number of different Judges who served under the first constitution was twelve, and the period was fourteen years. The number who served during the seven years of the circuit system under the second constitution was fourteen. The number of Judges who have served since 1857 is eighteen. The Supreme Court Judges of the territory were appointed by the President with the advice and consent of the senate. Under the first constitution of the state the Judges were appointed by the Governor, or nominated by him and confirmed by the senate during the sessions of the legislature. The second constitution provided for their election by popular vote, empowering the Governor only to fill vacancies, by appointment, until the election next succeeding. The term under the first grade of territorial government was limited only by the good behavior of the incumbent; under the second grade it was fixed at four years. Under the first constitution the term was seven years, both for Judge of the Supreme Court and the Chancellor. The second constitution fixed the term of the judges of the first court at six years, and authorized the legislature to provide by law for an independent Supreme Court at the end of that period, whose term should be eight years. This term obtained until 1887, when it was fixed at ten years. The constitutional jurisdiction of the Supreme Court is original as to writs of error—habeas corpus, mandamus, quo warranto and procedendo —and other remedial writs. In all other cases its jurisdiction is appellate only. Prior to 1851 no session of the Supreme Court was held at Lansing. The revised laws of 1846 required a term annually at Detroit, Kalamazoo Jackson and Pontiac. The first statutory provision under the Constitution of 1850 was for a term annually at Detroit, Kalamazoo, Adrian and Pontiac; but a little later provision was made for a fifth term annually, to be held in Lansing. The statute regulating the independent Supreme Court provided for two annual terms at Detroit in January and July, with two intercalary terms at Lansing in May and October. Two years later the May term was changed to April, and since 1873 all of the terms have been held in Lansing. The only subsequent change made in the calendar was made in 1875. substituting June for July.
A system of Circuit Courts created in 1833 and perpetuated in the first constitution required the Circuit Judge to be a lawyer, and provided for two associates who were usually laymen. The old Circuit Courts in which one of the Judges of the Supreme Court was required to preside was not supplanted by this innovation.
The territorial laws were first collected and codified in 1800, in a volume printed at Washington and called "Woodward's Code." There was no further revision and scarcely a pretense of publishing the laws until 1821, when a second codification was completed by the territorial officers under the leadership and direction of William Woodbridge, then secretary. Much confusion resulted in the meantime, and even this collection was found to be very imperfect. A commission of able lawyers, consisting of William Woodbridge, Abraham Edwards, John Stockton, Wolcott Lawrence, and William A. Fletcher, was appointed to make a thorough revision of all the laws, with appropriate digest, placing in a single act all that related to the same subject. The commission was empowered to omit such acts as were in a state of innocuous desuetude, and to alter or amend any others at their discretion. The work was done in a very able and satisfactory manner without any change in the personnel of the commission, except that Asa M. Robinson, was substituted for Mr. Woodbridge, who resigned. The legislature of 1837 provided for a careful revision of the laws and appointed Judge William A. Fletcher commissioner for the work. It was carelessly or at least quite imperfectly done. A very systematic and complete revision was made by Judge Sanford M. Green under appointment in 1846. Among other things accomplished by this revision was the abolishment of capital punishment in Michigan. Another complete and methodical compilation of the laws was made by Judge Cooley, at special commissioner appointed for the purpose in 1857, and his excellent work was the basis of a compilation in 1871 by Judge Dewey. The work of these several commissions has materially aided the Supreme Court by rendering their researches less laborious, and therefore have been deemed worthy of mention in this connection.
The Supreme Court of Michigan has always been respectable and sometimes eminent. Its original decisions declaring the law as to important questions not theretofore adjudicated take high rank. They are quoted as frequently, and accepted as generally, as the most noteworthy opinions of the highest courts of any other state. Its opinions usually indicate painstaking and carefulness in research, thoughtfulness, precision and exactness in expression. The Bench has given to the state several governors, to the United States several senators, and to the world some of the most distinguished jurists and publicists of the age. The individual judges have almost uniformly been men of probity and uprightness. In their judicial work they have been actuated less by pride of opinion than by a desire to ascertain and construe the law. No judge has ever been impeached or guilty of conduct unbecoming the dignity of his exalted office. The history of this court is the recognition of a high order of jurisprudence. It is a perpetual illustration of the truth that the conscience and integrity of its judiciary are at once the glory and the safety of a free state.