OCTOBER 18, 2005
CHIEF JUSTICE CLIFFORD W. TAYLOR:
Good afternoon. On behalf of my colleagues I want to welcome all of you this special session of the Michigan Supreme Court. Thank you for joining us here today as we begin the new term of court and at the same time commemorate the creation of this Court’s forerunner, the Supreme Court of the territory of Michigan 200 years ago. Recently I was called upon to provide the foreword for the soon to be published History of Michigan Law and as I read the manuscript I was reminded of these lines from Shakespeare’s play, the Tempest. “What’s past is prologue and what comes is in your and my discharge.” Antonio, the character who speaks these lines means that past events are often felt to be insignificant compared to the business of the moment. It would be hard to not agree that all too often we fall into that same posture. Getting caught up in our tempestuous present and forgetting that our predecessors lived through times quite as challenging as our own. And thus we insufficiently look to them for guidance. It is good, therefore, that we gather to recall our heritage and the origins of our Michigan Judiciary.
Today we remember not only the territorial court but that court’s most memorable figure, AUGUSTUS B. WOODWARD, who was both a jurist and legislator, the friend of Jefferson, a born New Yorker and Washington, D.C. lawyer who laid the foundations of Michigan jurisprudence. He is a fascinating and sometimes difficult character but deserves to be remembered far more for his contributions than discounted because of his, well, peculiar personality, as we shall hear.
I’m going to shortly call on Wallace Riley, president of the Supreme Court Historical Society to superintend this program but before I did so I wanted to thank Justice Marilyn Kelly for being the liaison to the society for this program and it has been her efforts, along with the Society’s that made the program possible today. Mr. Riley.
Mr. Chief Justice, Justices of the Michigan Supreme Court, Justice Kelly, Society members and members of the bar in attendance, ladies and gentlemen.
Over the past several years, the participation of the Supreme Court Historical Society in the opening day of oral arguments has become somewhat of a tradition. Many of you here today are Historical Society members and are familiar with our organization and with our work. However, many members of the other branches of state government who have been invited to join us today for this special session may not be so familiar and so let me take a few minutes just to tell you a little bit about the Society’s duties.
The Michigan Supreme Court Historical Society, a non-profit 501(c)(3) corporation was founded in 1988 by then-Chief Justice DOROTHY COMSTOCK RILEY. Our mission is to collect and preserve and display documents, records and memorabilia relating to the Michigan Supreme Court and the other courts of Michigan, and to promote the study of history of Michigan’s one court of justice, and to increase public awareness of Michigan’s legal heritage. We sponsor and conduct historical research, we provide speakers and educational materials for students, we sponsor and provide publications, portraits, memorials, special events and projects all consistent with our mission.
Over the past 17 years we have produced several publications including the Michigan Supreme Court Historical Reference Guide, which contains biographies and a picture of each of the court’s first 103 justices; A Brief History of the Michigan Supreme Court booklet that is geared toward high school students interested in the history of the Court; the Index of Special Sessions, which includes up-to-date indices of all special sessions held by the Michigan Supreme Court since 1836, and list the dates, the honorees, the speakers of each of those sessions; and our high school and junior high lesson plans, which provide teachers with two-week units on the history and organization of the Michigan Supreme Court. I’m pleased to announce that this year alone we have distributed over 30 of these free lesson plans and packets to the teachers throughout the state of Michigan. And finally, our quarterly newsletter, The Society Update. We continue to distribute all of these publications and copies are available for anyone interested in learning more about the history of the Supreme Court.
In addition to the hard copy publications, the Historical Society hosts a website, www.micourthistory.org on which the Court’s articles, vignettes and other information about the history of the court.
The Society also hosts special events throughout the year to celebrate the Court’s history. This year, in April, we hosted our annual membership luncheon in Detroit. Nearly 150 members and friends joined us to hear about the many sides of Justice JOHN VOELKER. In May, Your Honors hosted a special session in this courtroom in which the portrait of the Honorable Justice THEODORE SOURIS was dedicated to the Court. You can view it; it’s downstairs hanging.
In an effort to further study court history to encourage research about the court, we have sponsored several research-related projects
The first is the Coleman internship. Each year the Historical Society selects an undergraduate student to research a special topic related to the history of the Court. Our Coleman interns have produced the Brief History of the Michigan Supreme Court booklet, a PowerPoint presentation about the Michigan Supreme Court and its treatment of civil rights issues, a Woman in the Law project that features a list of 19 women who have made significant contributions to Michigan, and the 2005 Coleman intern, Caroline Zickgraff, completed a bibliography of the research resources available to anyone interested in the history of the Court. The end result is a database of over 2,000 citations related to Michigan Court history.
The Big Four Writing and Research Fellowship, which was conducted in partnership with Western Michigan University concluded this year. Coreen Derifield completed her two-year project for her master’s thesis and wrote her thesis entitled “The Finding Peaceful Picketing, the Michigan Supreme Court and Labor Injunction 1900-1940”.
In cooperation with Paul Moreno, a political science professor at Hillsdale College, the Historical Society is selecting a list of Michigan Supreme Court’s most socially and politically significant cases. Our committee, which includes two former Michigan Supreme Court justices, hope to have the first phase of this project completed by the end of the year.
In addition to opening the Court, we’re here today to recognize and celebrate an important event in the history of the Court and the Michigan Judicial System as well. It is the 200th anniversary of the creation of the Supreme Court of the territory of Michigan. Here to tell a story of that significant event and a story of the first decade of the Court is Professor David G. Chardavoyne.
Professor Chardavoyne is a lawyer, teacher and author. He received the degrees of Bachelor of Arts from the University of Michigan in 1970 and Juris Doctor magna cum laude from Wayne State University Law School in 1976. Following two years as a law clerk to the Honorable James Harvey of the United States District Court for the Eastern District of Michigan, Professor Chardavoyne joined the Detroit law firm then known as Bodman, Longley & Dahling, now Bodman, LLP, where he specialized in litigation and trust law. Then after 21 years as an associate and a partner, Professor Chardavoyne left Bodman to pursue his love of history and of teaching. Since 2001 he has taught at both Wayne State University Law School and the University of Detroit Mercy School of Law as an adjunct professor. He has written extensively on the legal history of Michigan’s early years, and his study of the history of capital punishment in Michigan, A Hanging in Detroit, published by the Wayne State University Press, was voted the Michigan notable book of 2004 by the Library of Michigan Foundation. During the current semester he is a visiting professor of law at Wayne State University. Welcome David Chardavoyne.
Some of you may have noticed that this time I am facing you. You’re used to seeing my back and the Court is used to seeing my somewhat shrunken face, but this time we wanted to be able to look out at you and have the Court look out at you and have you be able to visualize not only the speaker but also the presentation and the portrait.
PROFESSOR DAVID G. CHARDAVOYNE: Chief Justice, Justices, ladies and gentlemen, it is an honor for me to be here this afternoon to speak, to give a legal vignette of the creation of the Supreme Court of the territory of Michigan and to tell some stories about that court and the Michigan that it was part of. And of course when we speak of Michigan at that time, we have to speak of a man who, it is almost a cliché now, was brilliant but eccentric, Augustus Woodward, whose portrait we will unveil today.
The Court began with the territory of Michigan in 1805. An act of Congress in January of that year created the territory of Michigan out of what was the territory of Indiana. In order to understand how this came about, I need to go back with you about 20 years before that. In the 1780’s Congress was in a terrible situation. The Articles of Confederation had not been adopted or ratified, all because of one thing. The Old Northwest. The territory between the Ohio River and the Great Whites, between Pennsylvania and Sydney, which Britain had ceded to the United States in the Treaty of Paris after the revolution. Virginia claimed the entire area, all 265,000 square miles, an area larger than France. Other states such as Pennsylvania, Massachusetts, Connecticut, and New York, claimed parts of it, whereas the other 13 original states were adamant that those states would not have a part of the northwest. Maryland in particular threatened never to ratify the Articles of Confederation unless a deal was done. And a deal was done.
In 1787 Congress created the Northwest Territory. And as we see in this map, the area that is shaded is now the states of Ohio, Indiana, Illinois, Michigan, Wisconsin and a portion of Minnesota which is east of the Mississippi River. We see a single territory governed by officials sent from Washington, federal officials appointed by the president, but with a promise that in time it would become self-governing and 3-5 states would be created from the Northwest and join the union. One of those states-to-be, according to the ordinance, was a state lying north of the east-west line drawn through the southerly bend or extreme of Lake Michigan to Lake Erie. If you look at the map that’s on your program and you look at the bottom of Lake Michigan you’ll see one of the first problems that Michigan had, one that persisted for quite some time. This is a map, it’s probably as good a map as Congress had at the time. And you’ll note that the bottom of Lake Michigan, if you go east you never reach Lake Erie. You go all the way to the Atlantic Ocean. And obviously Congress did not intend to include all of Pennsylvania and New England in the new Territory of Michigan.
Another problem which came up was the western boundary of the new territory. Congress defined it as a line running through the middle of Lake Michigan to its northernmost part. Most scholars interpret that to be the northernmost part of that center line running through Lake Michigan. However there is another way to look at it, the northernmost part of Lake Michigan. And in fact there is Michigan historical marker at that northernmost part of the Lake in the Upper Peninsula which states that that was the western boundary of the Michigan territory. On this map, that western boundary would be somewhere 150 miles further west. So you can see that the boundaries of the original territory of Michigan were pretty indeterminate. They (inaudible) because virtually all of the 4,000 European-American people, when we speak about population today, unfortunately that’s what I have to talk about. There were many native Americans living in Michigan then and later. Nobody ever counted them. Censuses didn’t count them. They were not statistically important people at that time. I can’t tell you how many there were. There were 4,000 people of European descent. Almost all of them lived around the Detroit River and the southern part of Lake St. Clair. None of them lived in the Upper Peninsula and so where the border was up there was really of no interest to them at all.
Who were these people? Most of them were French. Leftovers from the French government. They were farmers, subsistence farmers, they didn’t sell anything for export. They tracked, they fished. Detroit was a fur trading post at that time. Detroit, Mackinaw and Sault Ste. Marie were the only substantial towns, Sault Ste. Marie and Mackinaw were sort of trading posts at that time. You also had some British citizens who had been the merchants of the fur traders in town who decided to set up shop in Detroit. At that time then, the third group of people, the Americans, were not there. In 1787, even though Detroit had theoretically been part of the United States since 1782, along with the rest of Michigan, the rest of the northwest, there were no American citizens in what is now Michigan because the British refused to evacuate despite the Treaty of Paris, they decided they would hang onto the fur trading for as long as they possibly could.
It took another treaty, the Jay Treaty done by Justice Jay, to convince them to leave the northwest. It took a (inaudible) in Ohio to get them to agree to allow American settlement, and it wasn’t until 1796–it took nine years after the Northwest Ordinance–for the first settlers to start moving north from the Ohio River. When the first American troops arrived at Detroit in 1796, there was one U.S. citizen in the territory that was to become Michigan. A man by the name of Peter Audraif. He was the only U.S. citizen. And there were very few of the people that spoke Michigan. When we think of Michigan as an American place, Detroit as an American place. In 1796 it definitely was not. It was to become one over the next decade.
The government of the Northwest Territory–remember at this point we’re still part of the Northwest Territory. The government of the Northwest Territory consisted of five officials, appointed by the president with the consent of the Senate. There was a governor, a secretary who served as an assistant governor, and three judges shall have a common law jurisdiction and whose commission shall continue in force during good behavior. Common law judges. As the Northwest Territory began to fill up, particularly Ohio, Congress in 1800 decided to split the Northwest Territory, split off Ohio, and create the Indiana Territory. And in 1803 Ohio became the first state carved out of the Northwest Territory and at that point the capital that Michigan responded to, the capital of the Indiana Territory, Vincennes. Few had ever been to Vincennes, down on the banks of the Wabash far away. It took weeks for people from Detroit to get to Vincennes. The route, taking canoes, up the Miami, Fort Wayne, then down the Wabash and from the very beginning, when they first heard about this, people in Detroit, Mackinaw and Sault Ste. Marie were adamant that they thought it wanted none of them. They wanted their own territory. And finally–in fact they sent petitions to Congress, in English and French, they said compel us not to wander seven hundred miles to (inaudible) deserts, and the fear of outlaws and (inaudible), leaving murderers unpunished and predators unpaid. Congress paid attention largely because Congress at that time was democratic and so were most of the people in Michigan, the people who counted. The American population had grown up. It still was a great small part of the territorial population; the French were still by far the majority, but it was building up. So in 1805 in January Congress passed the Michigan Territory Act which created the territory, the capital in Detroit, with the same government form as the Northwest Territory, meaning a governor, a secretary and three judges. That was the beginning of the judicial system in Michigan.
President Jefferson had no trouble filling the two executive posts. For governor he appointed an old revolutionary general, William Hull from Connecticut, and as secretary Stanley Griswold of New Hampshire. It’s interesting that Stanley Griswold who was partly disliked and stayed in Detroit only a very short time has a street named after him while General Hull does not. And Judge Woodward named a street after himself. The court proved much harder to fill. Finding lawyers who wanted to come to the middle of the frontier was difficult. The first choice of the president, Samual Huntington, who was a justice of the Supreme Court of Ohio turned it down. I don’t know why. However, his next few choices were successful: Frederick Bates from Detroit, who was the postmaster in Detroit, and Augustus Woodward who at that time was a lawyer in Washington, D.C. A very successful lawyer, a good friend of Jefferson. He was on the city counsel of Washington, D.C., also accepted though we don’t know exactly why. A third judge because we needed three, proved impossible in 1805. Another Ohio Supreme Court judge, William Sprigg, was solicited. He said no as well. So when the government gathered in Detroit on June 30, 1805 there were only two judges and a governor and secretary.
As Chief Justice Taylor pointed out, the judges were also legislators and so was the governor. The system was created to save money, we don’t have a separate legislature. The governor and the three judges were in a majority to pass legislation, which then the governor would execute and the judges would interpret. When Judge Woodward–Justice/Judge–he often used Justice, most people called him Judge Woodward. I’ll probably use them interchangeably, no disrespect meant to anybody, when he arrived in Detroit, he arrived the day before the territory was supposed to go into effect on June 29. If he had doubts about his choice, his career choice to come to Michigan and leave his practice in Washington where in 1802 he made $3,000 for a job in Michigan that paid $800 a year. If he had doubts about that they were pretty much reaffirmed when he arrived in Detroit and found the whole city in ashes.
Three weeks earlier the town of Detroit, which was the part of Detroit that includes St. Anne’s Church, included the army barracks, had burned to the ground. His constituents were wandering around, building tents, building lean-tos, bunking in with friends who lived outside of town, trying to pull their lives together. And of course the first job of the new government was trying to find a way of helping these people. In doing so, the people of Detroit got their first example of the very interesting mind of Judge Woodward.
Judge Woodward was born in 1774 in New York City. He was only 30 when he arrived in Detroit. We think of him as an old man but he was 30 when he arrived, he was barely 50 when he left. He graduated from Columbia College in New York City in 1793. Physically he has been compared to Ichabod Crane. He was tall, 6’3″ or 6’4″ but he stooped. He was very, very thin. He had a long nose. How long, there’s a caricature of him we’ll see in the museum downstairs. The nose up here is not that big. And he had sort of sallow skin. His idea of cleaning himself was to go out in a rainstorm fully dressed and stand there and let the rain wash the dirt off him and his clothes. But he was very fastidious about his hair and he was very peculiar and particular about who cut his hair. For him, his hair was the one thing he really cared about in terms of his appearance.
Mentally he was brilliant. He had broad interests in the sciences and arts. This is what attracted him to Thomas Jefferson. They were very much thought the same way about learning and about knowledge. He was fluent in Greek, Latin, Spanish and French. He was a leading member of the D.C. bar, the bar was in Virginia at that time. But as one of his critics later said, “our chief judge is a wild theorist fitted principally for the extraction of sunbeams from cucumbers.” And another–that was a future judge. Governor Hull said “His very singular opinion of things generally would baffle any little sagacity.” Very interesting man.
He decided he was going to rebuild Detroit and rather than simply replat it in little squares as it had been before the fire, he went to Washington and came back with a plan very much like that of Washington by Charles L’Enfant. You’re all familiar with the plan of Washington, it’s a grill with diagonals running in circles or circuses. And we see here a map that shows the plan proposed by Judge Woodward. The diagonals, the grand circus, that’s where Grand Circus Park comes from. Remember a circus there is such, it means circle. And he presented this to the City of Detroit. And they looked at it and thought “what is he thinking”. This was to be the first replication. As the city grew there would be the same plan and repeated again and again and again, as many as you needed. But even this first replication was designed for a population of about 50,000 people. At that time Detroit had less than 1,000. Most of them lived right along the shores of the water so that they could get water, so they could communicate with other places by water, and they were destitute, homeless, wanted simply to build a house fast as winter was coming. And here was Judge Woodward thinking about little triangular blocks and little diamond-shaped blocks and square blocks and although Congress approved this plan and you can see it still if you go to downtown Detroit. It’s still there, pretty much, it was never replicated. The rest of the city became a grid north and south, east and west. So this was their first experience of the mind of Judge Woodward.
He was also very proud of his legal establishment. And as one of his college classmates said, he loved to show off his knowledge. This is something he kept with him all his life. There was a case called James Grant v Thomas Selfer. It was a very simple case, very simple question. Is service of process, service of a complaint and summons on a Sunday bad. And the attorneys came before him and they argued essentially statutory interpretation because it was a Northwest Territory statute and seemed to cover it. Did it apply in Michigan? We don’t know. He went back and wrote an opinion which cited among other things, among other authorities, the apostles John, Luke and Paul, the Byzantine emperors, Theodosius, Constantine, and Anastasias. Pope Gregory, the six century kings, Childa Burke of France, and Dantran of Burgundy. And the kings of England, Henry I, III and VI, William I, Henry II, VI, VIII and James I and Charles II. He also went into the question of what common law are we common law judges of. Remember, the Territorial judges were common law judges. Well the common law changes. It’s a constantly evolving body of law. Where do we cut it off? This was of course a (inaudible) difficult one for people in the United States to (inaudible). How much of English law do we accept. In other words, a separate country. Some people thought, well we go do the beginning of the Revolution, or go to the end of the Revolution. He had a totally different idea. For him the common law ceased developing as far as we were concerned in 1189 upon the coronation of Richard the Lionhearted. Richard Cur Leon, as he said.
Because of his eccentricity, he came to arouse possible feelings in other people in Detroit who had to put up with him. But they put up with him from 1805 until 1823. During all that period he was essentially the power in Detroit. And naturally he rubbed some people the wrong way. As Hull said, everything in this territory was perfectly trifle until his arrival. Since that time he has been doing (inaudible) parties and excite the public.
As I mentioned earlier there were three groups of people in Detroit already so there’s a lot of tumult going on just because of that. The Americans looked at the French as being lazy because they liked to live life, being godless because they liked to have the (inaudible) of races on Sundays rather than going to church all day as the good (inaudible) would do. The French referred to the Americans as (French words) which means literally sacred pig of a Bostonian. Which accurately translated means damn Yankee. And the English were caught in the middle but also distrusted because their loyalty to the United States was always in question in those early years. In fact at that time the head of the Canadian militia and the head of the Canadian naval reserve both lived in Detroit in the United States. And sent up their orders to their followers across the river. Everybody knew this and so this was another thing that kept the tension in Detroit.
In 1808, getting back to Woodward, a guy by the name of John Gental published a series of articles (inaudible) Woodward and Woodward had him indicted. A (inaudible) said something to Woodward in the street and he had him indicted for using a piece of language to a judge. And an attorney by the name George McDougall in 1810 twice–George McDougall was one of the biggest attorneys in that early day. He was the founder of the bar. He twice in one week challenged Woodward to a dual. When Woodward refused to accept McDougall wrote another letter saying you know, if that’s the way you’re going to be, essentially, I’m not coming to dinner as I promised. In 1811 a fellow by the name of Whitmore Nash actually started beating up Woodward at a party and of course he too was indicted. This was the man then who was the chief judge when the court began in 1805.
The other judges present at that time was Frederick Bates. He was born in 1777, he was 27, 28 years old, in Belmont, Virginia. He was one of 12 children of a Quaker family and was quite friendly with both President Jefferson and Secretary of State James Madley, which no doubt led him to be the only Detroiter to get a federal job when Michigan became a territory. (inaudible) study law. He came to Michigan in 1797 as an army quartermaster. He owned the shore of Detroit, and was the postmaster of Detroit at the time of his appointment to the court.
Over time two more judges came to join the court. Bates did not stay very long. By 1806, he had gotten a new job from Jefferson, he was the secretary of the new Louisiana territory headquartered in St. Louis. Eventually he would be the governor of Missouri. Before he left, a third judge was named and did arrive. A man by the name of John Griffin. John Griffin was the same age as Woodward, born in 1774. He was born in Scotland although his father was American. His mother was the daughter of a Scottish baron and he always acted as if he knew that and could not forget it. He started the (inaudible), a member of the technical congress in Virginia, a U.S. District judge. John Griffin graduated from William & Mary College and studied law in Virginia and in 1800 he was looking for a job. So his father’s good friend, Thomas Jefferson, sent him out to the Indiana territory to be a judge there, in Vincennes. Very quickly he decided he didn’t like Vincennes very much at all. He didn’t like the climate, it wasn’t good for his hypochondria. And finally in 1806 his father prevailed on Jefferson to switch him over to Michigan territory. He has been described as tasteful and polite but hypochondriac, mobily inert, one of the most (inaudible) dissatisfied office holders of all time. During his 17 years on the bench of the Supreme Court of the Territory of Michigan he was ceaselessly looking for another job. A job so long as it was not in Michigan or presumably Indiana. He was timid and indecisive, he refused to sit alone as a judge, never did. He was totally the thrall of Judge Woodward. Judge Woodward (inaudible) to do anything he wanted, which if you think about it, gave him tremendous power. It gave him a majority in the court whenever he wanted one, he had the worst draw in the legislative body of four, and so for that reason Woodward became the most powerful man in Michigan.
Finally in 1808–oh, Griffin and Woodward both never married and towards the end of their time in Detroit in the early 1820s they became known old bachelors who used to write gossipy letters to each other about girls they were interested in, but they never married any of them.
Finally in 1808, the third member who would become essentially the permanent court for the territory arrived, James Woodrow. Although he joined the court 3 years after Woodward, and although he was 15 years old than Woodward and Griffin, he would be the longest serving judge in the history of the territorial Supreme Court, 20 years. He was born in 1759 in Massachusetts, he was by training a doctor, not a lawyer. He fought most of the major battles of the Revolution. He was a congressman in Vermont in 1808 when President Jefferson prevailed upon him to come out to Michigan and join the court. He was said to be a man of great originality and great force of thought, unquestioned integrity and metal independence. Devoted for the Constitution but he decides the common law, which is tough for a common law judge because it came from Great Britain.
These are the first four judges of the Court. Those are the judges who sat through the first decade and more of the Court’s history. The judges were sworn in, Judges Bates and Woodward, were sworn in on June 30, 1805, the first day of the territory, and July 24, obviously they were doing a lot of house building in between, the legislative board, Woodward, Bates and Hull, met and created a statute called An Act Concerning the Supreme Court of the Territory of Michigan. And the three-judge territorial court became officially the Supreme Court of the Territory of Michigan. Had one court term per year, beginning on the third Monday in September. At $800 you can’t expect two terms. And they actually had the first meeting of the Court, in special session, on July 29, 1805. The first session of the Supreme Court of the Territory of Michigan. Chief Justice Woodward and Senior Associate Judge Bates held at the home of James May, who was a justice of the peace. This is where Woodward was staying while the city was being built. It was on the north side of Larned between First and Second Streets, near as I can guess, about where the Lodge Freeway fits underneath Cobo Hall across from Joe Louis Arena, outside the area that had been burned, obviously. In that session they named Peter Audraif, who had been the only U.S. citizen in town when the army arrived, as their clerk. Peter Audraif was by then 70 years old, a French native by (inaudible) Philadelphia, not Canadian French. And he (inaudible) clerk (inaudible) over the next decade. Whether a body of court, administrative board, Peter Audraif was the clerk.
The next meeting was the next day on July 30, 1805 which was significant in that the first two members of the Michigan Bar were admitted to the Court. Eliza Brush was a graduate of Dartmouth College, 33 years old, he had been (inaudible) attorney in Detroit. (inaudible) set up his shop in Detroit. He was later territorial treasurer, attorney general. A year or so after he arrived in Detroit he was joined by the second attorney on the bar, Solomon Sibley, who was then 36, a graduate of Rhode Island College which is now Brown University. He joined Brush and was (inaudible) which proves the old saying, two attorneys will feast where one attorney will starve. Sibley later was Detroit’s first mayor, its first U.S. Attorney, and he was a judge of the territory of the Supreme Court itself from 1824 to 1836. So now we have a court, we have attorneys. It’s time for the first case. The first regular term began September 16, 1805. In those days the Supreme Court was principally a trial court. It was not an appellate court because there was really nothing to appeal from. But they did have the answer, they were the last word. There was no appeal from the decision of the Supreme Court of the territory. Not the Supreme Court, the Court of Appeals or even federal district court. They were the first and the last words in anything they did.
The first year there were 10 cases filed in Detroit. Three of them (inaudible), there was one murder, it was a Native American killed another Native American and no one was really concerned about it so essentially he was pardoned. Two larcenies, two for debts, one compact case and one customs case. Congress had provided the court not only with common law jurisdiction but in other statutes and provided jurisdiction over all cases involving the United States. Saved the money, they didn’t have to hire a separate federal judge for the territory. And so the first case was a customs case. United States v Fords Planks and Shingles (inaudible). And that case produced the first opinion of the court on September 24. Justice Woodward issued the first written opinion of the court. The trial took place in the Dornby Tavern, which is about where the Ponchetrain Hotel is now. Very often in those days the court sat in a tavern. And often they would drink, no one thought any the less of them for that at that time. If they thought they had a question that wasn’t covered by the statutes they might retire upstairs, (inaudible) statute, resume court. Judge Woodward had the habit of, if he got bored and there’s another judge present, he would simply tell the court to mark him absent and he would then take a nap sitting on the bench. And one time he woke up and someone was saying something about him and he started to respond and the guy said wait a minute, you’re not here. I direct the court to mark me present and you’re in contempt.
The first term only lasted to September 30, so it only lasted about two weeks. The number of cases grew, though, over the years, 1806 there were 34, 1807–46. In its entire lifetime the Court handled 2,100 cases, about 15% of which were these federal jurisdiction cases. There were other cases in those early days, I’ll briefly mention one or two of them, very briefly. Great international incident, soldiers on both sides of the river and they tended to desert for crossing the river (inaudible). So the soldiers decided the best thing to do was to work with the opposing soldiers to capture each others deserters and send them back. That turned out to be something that was not acceptable to the civilians in Detroit and one group of British officers who tried to do it were caught. They were tried for assault on their deserting soldier, and initially the captain who was in charge was fined $8,800 and six months in jail. That represented about ten times his annual salary. It was then pointed out to Woodward and Bates that the statute that provided for assault and battery only allowed a fine of $100. So they revised the sentences, and the captain now got 2 1/2 cents plus costs.
The first decade of the court ended somewhat abruptly when Detroit was seized by the British army at the beginning of the War of 1812. There were no sessions in 1813, 1814–1814 just barely. October 7, 1814, a couple of weeks after the Americans retook Detroit, the court resumed. And it went on in much the same way as it had before, with those three judges, Woodward, Griffin, and Witherell, until 1823. In 1823, people were getting tired of, particularly Woodward and Griffin, because they had been in charge for so long. And it was arranged so that instead of being named for life, the statute was changed so that the judges only sat for four years.
In 1824, Woodward and Griffin were not renominated, and, as this little chart points out, they were replaced by–Witherell stayed on the bench–and they were replaced by Solomon Sibley, the first or second attorney in Detroit, and John Hunt. These men were both solid Federalists. The Federalists were in power. In 1827, Hunt died, and Henry Chipman, another Federalist, took over. And, in 1828, Judge Witherell finally gave up the bench. He switched with William Woodbrige, who had been the territorial secretary since the War of 1812, and now Woodridge became a judge, until 1832. In 1828, the nomination of Woodridge came just in time, because at the end of 1828 and the election, Andrew Jackson became President. And we all know he liked the spoil system. So the first chance he had in 1832, he named new judges. He kept Solomon Sibley, but he brought in two of his followers, Ross Wilkins and George Morell. And they served–the three of them, Sibley, Wilkins, and Morell–until the end of the court in 1836. Michigan became a state officially in 1837, but the state’s government actually took over in 1836. When the court ended and the Supreme Court of Michigan began, Sibley was in his seventies; he retired. Morell accepted a position on the new court. Wilkins was offered the position, but he took the job as the first district juge of Detroit, and William Asa Fletcher took over as the chief judge of the first Supreme Court of the state of Michigan. And the Court has continued in one form or another, obviously, up until today. I think that the ten men who sat on the court in the territorial period provided a basis for the rule of justice and the rule of law which is still a part of our state, and it’s good for us today to be talking about them and thinking about them. Thank you very much.
MR. RILEY: Thank you, Professor Chardavoyne. Chief Justice Augustus Woodward, of course, is the central character in any story behind the early history of the Court. And although his many eccentricities gave him a questionable reputation, his grasp of legal proceedings and of the law itself was most notable. Woodward was known for many things, including the early publications regarding the rights of citizens in the territory of Columbia, his work on the territorial supreme court, the establishment of the University of Michigan, and his plan to redesign and rebuild the city of Detroit. Recognizing his many contributions, a young man named John Fedynsky first approached the historical society about a year ago. And John had the idea that we should commission a statue of Woodward to be placed in downtown Detroit.
Recognizing that Woodward did indeed deserve to be honored, the historical society instead decided to commission a portrait of Justice Woodward to be presented here to the Court. The only problem was that there was only one picture of Woodward that was known to exist, and it was a crude line drawing that is rumored to be a caricature with a big nose. So using this and a few scattered verbal descriptions of the justice, our artist would have to craft a historically accurate picture of Woodward almost from scratch.
Recognizing the difficulty of this project, the historical society sought an experienced artist with an awareness of the importance of the historical context. Robert Maniscalco, a Detroit-based portrait artist, was a logical choice. As you can read in his biography in your program, you’ll see that he’s an expert painter, a conscientious presenter, an expert in the arts, and having worked with him on several other portrait projects, including the posthumous portraits of Justice Black, Justice Moody, Justice Reid, and Justice Sharpe, we selected Robert to paint this important portrait. And so now, to unveil the 86th portrait to be added to the Court’s collection, let me welcome Robert Maniscalco and John Fedynsky. After unveiling the portrait, Robert will take a few minutes to tell you about the process of creating this difficult thing out of whole cloth, and about the specific historical moments that he researched to enable him to present what you will now look at.
[Portrait is unveiled.]
MR. ROBERT MANISCALCO: Mr. Chief Justice, justices of the Supreme Court, and distinguished guests, and Wally Riley, thank you. It is my great honor to present my portrayal of Judge Augustus B. Woodward. May it please the Court–for many years to come. I have been asked to share the most unusual story in my bringing this portrait into existence. I would mention at this time that you are all invited to view a short PowerPoint presentation illustrating the process, following these proceedings, in the reception area out there, where my father’s portraits are on display, as well. I would also like to take a moment to acknowledge a couple of important people who have always been there for me and are here for me today: my sister Betsy and her two children, Marcus and Nicky. And my wife, of course, Amanda, and Mary, our youngest. And Danny couldn’t be here because he had an appointment with his grandmother. And, of course, my father, Joe Maniscalco, with whom I hang in the Hall of Justice here. I feel very proud. I’m lucky to have been the son of a great artist.
Now with regard to this painting in front of you, as with every portrait I paint, it’s an exquisite adventure, a labor of love. To accomplish this particular result, however, I needed more than a flair with a brush. I had to become something of a historian. The project came about after the esteemed Justice Thomas Breenan presented what he called a “word portrait” to this Court to mark the 300th anniversary of the city of Detroit, focusing on Woodward’s plan for Detroit, as well as his appointment as Michigan’s first territorial judge 200 years ago, making him the father of this great institution. In Justice Brennan’s word portrait, he noted the conspicuous absence of the real thing. Well, justice called out in response, and I am deeply honored to have been selected for this singular challenge, and the rest is, as they say, history. We made history.
As the Court’s unofficial posthumous portrait painter, I have been commissioned many times over the years to fill in the blanks of the impressive portrait collection held within these walls. I paint dead people. Who knows, maybe someday I’ll have the honor of being asked to paint a real live Michigan Supreme Court justice. But I digress. Suffice it to say that as a result of the dedication of the Michigan Supreme Court Historical Society, our state can proudly boast of having one of the most impressive and comprehensive portrait collections of any state supreme court in America.
My historical quest to find the real Judge Woodward began with Justice Brennan’s eloquent word portrait and ended in a place where Federalist architecture is exceptionally well-preserved, and that is in Charleston, South Carolina. As an amateur historian, I embarked on several failed attempts at finagling myself into some of the great historic homes in Charleston. In one case, I had to call upon the aid of Angela Bergman, our esteemed executive director, who helped me gain access to the Charleston Museum collections, only to be disappointed when the period wasn’t exactly right and the conditions of my using the location were too limiting. In other words, in order to get what I needed, I would have to actually handle some very precious antiques with my sticky, oily, paint-covered fingers, and this was, you know, not to be the case.
So for weeks I visited museums and law firms, fraternities, schools, plantation homes, restaurants, inns, antique stores, tour homes–if anyone needs a recommendation of where to go in Charleston, just let me know–until I finally stumbled upon the perfect setting. The Thomas Elfe House on Queens Street in the main peninsula of Charleston, built around 1770, was one of the oldest homes in Charleston. And the proprietor, Bill Ward, a prominent collector of antiques from the period, was more than happy to assist me in putting together an authentic setting, the authentic setting seen before you. All I had to do was wash my hands!
Meanwhile, I had to find the right person to play Woodward, and after staging several impromptu line-ups in grocery stores and at parties, several women suggested their ex-husbands as perfect for the part. Eventually, I found my man. Dr. Patrick O’Neill, is the director of the weight management center of MUSC [Medical University of South Carolina], someone thin enough to fill the shoes. He happened to be the same height and build as Woodward. He is also a famous career bachelor like Woodward, but, most importantly, he was willing to play dress up with me. He towered over the desk and was perfect for the part, all decked out in a period costume provided by Bruce Bryson of Theatrics Unlimited.
I took digital photos, paying careful attention to the lighting. I wanted to get the glow of the candlelight and the oil lamps used at the time, the sort of sootiness of that period. The rooms from that period were also usually cramped, and the front room of the Elfe House was no exception. I put my unwitting model through the ringer, experimenting with every conceivable pose I could imagine Woodward ever might strike, and ended up with this simple, confident pose which I believe evokes Woodward’s complexity and stature. Though he was known for his poor posture, I imagine he would have stood tall for his own portrait.
Alone in my studio, then, I faced this most intriguing challenge of how to combine my historically accurate reference photos with an unflattering caricature, which you’ll see later, a political cartoon really, that happened to be the only known visual depiction of Judge Woodward. If it please the Court, I believe my charge as a portrait painter is to find the greatness in my subjects, not advertise their flaws. On the other hand, I believe there is power and grace in the naked truth, which should always be the goal of any artist. So, then, what was I to do in this case with the limited visual information available? How could I get to the truth hiding beneath this lampoon? The written descriptions, though detailed and evocative, were no less critical. So I set out to capture the slight scowl of the original drawing and bring a warmer, more naturalistic depiction of this enigmatic figure, adjusting for some of the original artist’s obvious sarcasm and, how shall we say, lack of technique. I gave him a more determined gaze and slightly less protuberant nose. In the case of my depiction of Augustus Woodward, I hope any artistic purist will forgive me for erring on the side of his strength and nobility.
The painting features a number of significant artifacts that I’d like to touch on. All the furnishings and props included in the painting are authentic antiques from the Colonial and Federalist periods, or what they call “Adamsesque” in the South. The background is a built-in cabinet and mantel made by Thomas Elfe himself, a contemporary of Chippendale, and his cabinetry and furniture are considered some of the finest of the period. A desk from 1790 anchors the composition and sets the stage for a number of historically significant features. Piles of books, a period quill, a pewter ink fountain, indicia, wax, and sander helped to create a sense of his characteristic clutter. A notebook, which sits at his fingertips there, he always carried with him. An authentic wine bottle and glass suggest the less formal judicial proceedings of the day. And the fire spills (used to light fires, candles, and things like that) in a container on top of the desk, right below that lamp, represent the fire of Detroit. Woodward’s solution to the Detroit fire of 1805, his controversial spoked-street plan for Detroit, is framed above the desk. And, of course, the lamp of knowledge, resting atop blue and gold books on the mantle over Woodward’s left shoulder, is the symbol taken from the first seal of the University of Michigan, which he cofounded in 1817.
It is my sincere hope that this portrait helps connect us with our past as it carries us forward the story of this iconic, enigmatic Augustus Woodward, whose powerful contribution to our state, our country, our destiny, secured his place in our history. I want to personally thank and congratulate the Court and the society and all of you who helped bring these portraits into being. It is because of your generosity that our history lives on to inform us in the future. Thank you very much.
CHIEF JUSTICE TAYLOR: Thank you, Mr. Maniscalco for another fine portrait, and thank you Mr. Chardavoyne for that fascinating glimpse into Michigan’s territorial history. I never see one of the many justices’ portraits that adorn the Hall of Justice without remembering how close we were to losing many of them and saying a silent thank you to Justice Dorothy Comstock Riley, of happy memory, and to you, Wally, for preserving thse artworks through the efforts of the Michigan Supreme Court Historical Society.
When I was asked to close today’s ceremony, it was suggested that I contrast the territorial court of 1805 with the Supreme Court of today. There are many obvious differences, of course. Judges Woodward, Bates, and Griffin took office a little more than 20 years after the end of the Revolutionary War in a turbulent territory of a brand new nation. That same fledgling country is now the dominant power in the world. The Michigan territorial court imported much of their precedent from English common law and the decisions of New England courts. My colleagues, while we still on occasion look to such sources, have inherited generations of Michigan-crafted precedent and are the beneficiaries of this collected learning. Also, unlike Augustus Woodward, my fellow justices and I have never arrived in town on the heels of a major fire and been charged with helping to rebuild the city. Moreover, we do not, as the first Michigan judges apparently did, serve as both jurists and legislators, a fact that surely is the source of immense relief to our citizens. We today serve under a state constitution; they did not. For better or worse, this Court does not hold proceedings in taverns, and I think it’s safe to say that it has been years since any of my colleagues or predecessors have been challenged to a duel. I’m not counting teenage children here.
I could go on, but it seems to me the more challenging and important question is whether the territorial court of 1805 has any lessons for us today. In that regard, I’d like to draw your attention to a guest editorial that appeared in the Wall Street Journal last week. It’s entitled, “The Finest Court in the Nation.” This is a title that will, of course, live in the annals of understatement, and I’m sure it caused jaws to drop from Escanaba to Niles. This description may come as a complete surprise, even nightmare, to many of you and even to some of the justicees here today, but this piece is actually about this Court. It was written by one of our former commissioners, which some would say explains why the piece is so laudatory. That aside, I think there is one line in particular that captures both this Court’s work and its heritage from Justice Woodward.
The writer, Patrick Wright, states that “[u]nder public scrutiny, the Michigan Supreme Court has developed a body of generally consistent legal interpretations of key relationships between the judiciary, the legislature and Michigan citizens.” I think that line nicely sums up the charge shared by this Court and the territorial court of 1805. It is a challenging enough task even now to sort out the relationships among branches of government, with the risk always present when doing so that to incorrectly handle it may disrupt the balance of powers of this most successful form of government yet devised by man. This balancing could be seen recently in Wayne Co v Hathcock [471 Mich 445 (2004)], where it was our duty to articulate the boundary between the private ownership of land and when, if ever, the government can brush aside those rights for the benefit of the community. How much more challenging must it have been 200 years ago to define these and other thorny governmental relationships in a country, and indeed on the frontier of that country, initiating a yet untried federal system. Further, the Constitution itself had been in place for a little over a decade, and the type of government it envisioned was largely unprecedented. So it isn’t surprising, for instance, to see Judge Woodward, while struggling mightily with such seemingly pedestrian issues as wehther the common law allows service of process on Sundays, to also focus on constitutional matters. We who are the successors of Augustus Woodward, and of all the other justices who followed him, are properly humbled by what they did. As the first in the long line of jurists of this Court, his is properly understood as a life worthy of study. It is unmistakable that Augustus Woodward antagonized many of his contemporaries, not least by his flamboyant and sometimes prickly personality. It is uncontroverted that he became the focus of much hostility because in Michigan he was the de facto sole political decision maker. With Judge Griffin’s support, Judge Woodward enjoyed a majority on the three-judge court and no worse than a tie on the legislative board. We are told that nothing happened without his approval and that he was not inclined to compromise. This is the sort of power that can make any person, even one with charm school manners, controversial.
Ultimately Woodward’s unpopularity and great power led to his being shunted off by President Madison to the territorial court of Florida. In doing so, it should be noted, he became the first of many seniors in Michigan to succumb to the attractions of Florida. In any event, his actions also prompted a successful push for a legislative council that would be independent of the judiciary so as to not have a supreme court whose judges used their dual roles to pass laws, especially when those laws ensured better judicial working conditions as well as a lighter workload. Perhaps the memory of that first court’s blurring of the line between legislating and judging and the resulting issues of power prompted the great care that Justice Cooley and the other Big Four Justices brought to the task of delineating relationships among the three branches. These writings are among the most thoughtful in nineteenth-century jurisprudence and still enlighten today. They are part of this Court’s proud patrimony, and maybe we owe that in no small part to this interesting man with grandiose notions and an almost legendary uncomfortable personality. in conclusion then, there is no escaping what Woodward was. He was cantankerous, stubborn, and, yes, an oddball, and he made his share of mistakes, as he was bound to do. But his mistakes and shortcomings are also part of his legacy to us. It is our duty and those who come after us to consider well efforts such as his and properly integrate them into our understanding of this state’s history and jurisprudence.
Two announcements before we adjourn. Everyone is invited to join the justices and members of the historical society for the reception outside, where I understand there is a birthday cake, which we can all pray does not have 200 candles. Also, the learning center on the first floor is open to anyone who wants to take a tour. The historical society has set up a display commemorating the 200th anniversary of the territorial court, and I encourage you to see it before you go. Thank you, very much. Gentlemen, again thank you. We are adjourned.