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OPINION IN THE CASE OF THE EARL OF SELKIRK

officer is liable to attachment, and to indictment; remedies more consistent with humanity and moderation than that the party should take the important question of the legality of the arrest entirely in his own hands, and sacrifice the life of his fellow citizen. The enactment of Edward the Confessor is expressly declared by Lord Mansfield to be a part of the common law; and an arrest on the civil process on Sunday is clearly a visitation of that peace which is contemplated by the Romans and by the canonical law. And though the decision in the case of Macalley even, might not, in the present age, be deemed impregnable, it is yet pleasing to behold that tenderness of life, so honorable to the jurisprudence of England, prevailing at that early era; nor is it preposterous to contrast the single mind of Lord Mansfield, enriched with the accumulated lore of a century and a half, against the 12 judges of England, in those more ancient days.

The principle involved in the original decisions of the ancient year book of Edward the 4th, and afterwards supported in the case of Semaina 5 Coke 92, and in others, is an extremely dangerous one in a free country, in any country, where the laws are presumed to govern, and not the arbitrary volitions of men. It would be more dangerous in a republican government than in the kingdom from which it is derived. In the former, all the muniments of personal rights ought to be sacredly maintained; and not only ought an officer, committing a tortious act, to be liable to public prosecution, and to private action, and to summary proceedings for contempt, but the citizen should also be exposed to no disadvantage whatever from the commission of the original tort. Shall the private individual be prohibited from taking advantage of his own wrong; and shall the monstrous position be maintained that the public officer may do so? If I do not misapprehend the implication intended by Lord Mansfield, in the case of Lee vs. Gen. Gansell, in 1 Couper 6, the principle meets his reprobation.

I am not bound, however, to touch this principle any further; for, though I hold this court, on this part of the subject, at perfect liberty, under municipal statutes, to settle and regulate its own practice, unfettered by any extrinsic decisions whatever; yet the English authorities when faithfully compared, sustain the competency of the court to discharge the defendant on motion.

In 1, Atkyns 152, Lord Hardwicke says: "Where there is an irregular arrest, a court of law will discharge the defendant."

In the case of Parker vs. Sir William Moore, 6 Modern 95, Lord Holt observed: "That the relief must be by audita querea for the fact of the arrest being on Sunday is traversable."

But the other judges hold the opposite doctrine, and say "If there were no more in it, we would relieve upon motion."

And in conformity with their opinion that the court may take no notice that the arrest was upon Sunday, without trial by the country, are the following authorities: Cro. Eliz. 227, 1 Leo 328, 6 Comyn 317, 4 Bacon 456.

In the present case, the court will, in like manner, take notice, that the 6th day of September, 1818, on which day the Earl of Selkirk was arrested, was Sunday.

In the case of Lee vs. Gen. Gansell 1 Couper 9, Lord Mansfield says: "The discharge of the party depends upon his behavior. Gross misbehavior might induce the court to refuse it. The court where a person is arrested who has been attending its process, will interpose, not only by punishing the officer, but by discharging the prisoner out of custody. Cases of this sort are always matters of discretion."

Against this array of the highest authorities, stands, at last opposed, the minute and solitary case of Wilson vs. Guttery, in 5 Modern 95.

I am, therefore, of opinion, that the Earl of Selkirk was illegally arrested, that he ought to be discharged, that the writ ought to be quashed, and the bail-bond cancelled.

It is the judgment of the court that the defendant be discharged, the writ quashed, and the bail-bond cancelled.

Michigan, Tuesday, October 13th, 1818.

A. B. WOODWARD.

LETTER FROM A. B. WOODWARD TO JAMES MADISON, SEC. OF STATE

DETROIT, July 18, 1807.

It will be a satisfaction to the department of State to learn that the laws of this Territory have at length arrived. There has hitherto been but one copy in the Territory. Of the northwestern and Indiana laws there is not a complete copy in the Territory.

The utmost harmony prevails among the military, on both sides of the river, and the citizens. Measures severe, more in appearance than in reality, have brought a practical conviction that the rights of the civil part of the community are not held at military discretion. It is to be expected no commotions like those we have recently passed will occur again shortly.

There is however one point on which the inhabitants on different sides of the river are at variance. This is the desertion of the slaves. I expect com

plaints will be made to you on this head by the British minister. I do not approve the temper, principles and conduct of the inhabitants of this side, on that subject. I thought something ought to be done to check it. I introduced a bill providing for the restoration of deserters from the service of his Britannic Majesty. It was in imitation of the provision made by Virginia, in the Revolution, relative to French deserters; passed while the president was governor of Virginia, and penned by him, and which I find was copied by Massachusetts. There was a section from another State providing for slaves. The governor was opposed to the restoration of deserters, but in favor of the restoration of slaves. Mr. Griffin was opposed to both. So the bill was lost. In other respects the inhabitants of the different sides of the straits are harmonious.

With respect to the civil government here the case is unfortunately otherwise. The discord is both great and bitter. It seems to have resolved into a mere struggle between the governor and the secretary about the succession to the government in February next. On one side a petition is circulating, addressed to the president, requesting him to dismiss the governor. On the other side it is said the governor will make it an official request to dismiss the secretary. I have not the attachment of the ardent and violent on either side; but experience most malignity from the partisans of the latter. Nothing less than an impeachment is to for me.

In the meantime the treaty is altogether defeated. Some of the difficulties a treaty would have to encounter I stated in a letter to the war department of the 31 January 1806. In the event the opposition has been the strongest on our own side of the river. It was almost a matter of triumph to the people of the town. These from the trading interest. They are principally composed of the remnant of those who were in trade here under the British government. They were an assemblage of Scotch, Irish, and English, with some few Americans. The settlers of the country parts are, on the other hand exclusively French.

I have the honor to recommend a line carefully avoiding all Indian settlements, of a description having the appearance of permanent. I am afraid the government are not aware of the importance of this. It is not an easy thing for the Indians to give up their houses and fields for the small consideration they receive from a treaty, after a division is made. A day or two of hunting will produce the individual more money. To bring the existing extinguishment along Lake Erie into immediate contact with that in this quarter is perhaps difficult. The Indians, however, of the Miami river are a very mild and well disposed people. I lately went through their country as high as to the Wolf Rapid. It is certainly a most delightful country, much superior to this

vicinity. I believe that in their own country, free from the English and French influence, and that of their interpreters, and regarding as sacred the settlements they have made, an equitable arrangement may yet be effected. It certainly is important, more so than is perhaps imagined in the United States, to arrange all the title of this country. The expense of this negotiation is enormous, and so far unproductive. I believe it would be better, after this expense, to send a commissioner into the country of the Miami Indians and that of the Saguina Indians, there to make an arrangement with them, during what remains of the present season, in an economical manner. The latter never understood what was wanted and would not attend. The others do not comprehend the real objects and views of the United States. If an arrangement were made with them, the adjustment of the titles might be completed by government in one year more.

The town titles will be definitely arranged as soon as the military reservation is made. We gave great dissatisfaction in the distribution of the donations. Mr. Bates and myself were clearly of the opinion that the donations should not be suffered to run foul of the adjustments of the ancient titles. The governor gave way to the public storm. As their wish was, however, impracticable in its own nature, not from the mere reluctance of those who were to make the distribution, we have been constantly obliged painfully to tread back upon our steps, and none of us have given satisfaction to the people. Perhaps none could have done it under the jealousies and dissensions prevailing among them. But they would have been more respectful towards their government if it had been steady and firm; on one side desiring nothing wrong, and not to be driven from what they knew to be right on the other.

Some decisions have been given on the country titles comprehended between Grosse Point and the river Raisin and dissatisfactions have already arisen. . In a manner less or more correct, however, both the preceding descriptions of title are in the train of eventual adjustment. But fourteen years is a long time to leave so many titles in the state they have been, and it will be obvious how much it interests the United States to press this subject to close without more delay if avoidable.

I have the honor to be sir, respectfully, etc.,

The honorable the Secretary of State.

A. B. WOODWARD.

Three circumstances that may not be entirely unimportant, two of which have a tendency to shew the views of Bonaparte relative to our country, and the other may hereafter confirm them, have lately come to my knowledge.

They arrived through a channel from which, at first view, they would be little expected, that is, the Indians of this quarter and other parts of the country.

An

The first relates to a savage visit from this quarter to his court. Indian Chief, from one of those caprices which sometimes enter into the savage mind, penetrated, as he expressed himself, with an irresistible desire of seeing again, after a long cessation of intercourse, his French Father, some time ago conceived, and executed, the project of a journey to Paris. He has since returned. During his stay at Paris he was admitted to an interview with Bonaparte. His representations of his impressions, and of what passed on the occasion; the observations he made relative to the Americans, and the replies he received; with the significant mode, which Bonaparte is stated to have taken, to explain his idea with respect to the future fate of the Americans; to those who are acquainted with the nature of the savage mind, and can at the same time make some estimate of the extraordinary character who has had such an astonishing career in France, will perhaps not appear either unnatural or incredible.

Another chief, unconnected with the former, some time since passed through this Territory; charged with dispatches to the agents of the British govern