Frontier Justice

Detroit faced indistinct prospects when James Witherell became a territorial Supreme Court judge in 1808.
James Witherell
Judge Augustus Woodward’s 1806 plan for Detroit called for Grand Circus Park to be circular, but Judge James Witherell nixed the design in favor of a half-circle urban oasis.

James Witherell stepped into a mess after President Thomas Jefferson sent him to Detroit in 1808 to join the Michigan Territory’s governing board. Fire had wiped out the frontier town three years earlier, and its rebuilding was proceeding according to Judge Augustus Woodward’s plan, adapted, in part, from the layout of Washington, D.C. and Paris. A package of laws called the Woodward Code regulated such matters as marriages and tavern licensing, and imposed taxes on riding carriages, dogs, and males over the age of 16.

Witherell, a delegate to the United States Congress from Vermont, resigned his seat and made it to Detroit by October. “Arriving here, he found the duties of his office arduous and perplexing,” wrote historian Silas Farmer. “He was not only one of the chief judges, but the governor and judges together constituted the Territorial Legislature, and they also acted as a land board in adjusting old land claims, and in laying out anew the City of Detroit.”

Woodward, who feuded with Gov. William Hull, was away during that fall and winter when Witherell set to work. Opposed by the board’s third judge, John Griffin, who was seeking a transfer to another territory, Witherell and Hull nevertheless created 45 new laws.

Witherell also addressed problems at the fraudulent Detroit Bank, which had been issuing nearly worthless currency with Woodward’s signature on each bill, compromising Michigan’s standing among eastern financiers. Congress had annulled its charter, but the bank continued to operate as a private institution. Witherell and Hull voted for legislation — “An Act for the Punishment of Crimes and Misdemeanors” — that imposed a 200-percent penalty on any private bank’s bills. The bank’s demise was inevitable.

Witherell continued to move fast. On Feb. 26, 1809, he presented “An Act Concerning Schools.” This measure provided for the creation of school districts, to be financed by a tax of $2 to $4 for each child; the funds were distributed to pay for construction and maintenance. This act was later overturned by other legislation, yet it stands as testimony to its author’s progressive thinking.

Six feet tall and erect in stature, Witherell “possessed a positive character” and was said to have a pure heart and sound intellect. Whereas Woodward was known for using a six-syllable word when a simple one would do, Witherell was “a man of few words, but of clearly defined opinions, and possessed an almost inflexible will,” according to Farmer.

Witherell married Amy Hawkins of Smithfield, R.I., in 1780, and the couple had six children. In 1810 his family joined him in Detroit, but Indians’ threats to the town caused their return to Vermont. During the War of 1812, Witherell used his natural leadership ability and Revolutionary War experience as interim commander of the territorial militia. When Hull surrendered Detroit without a shot being fired, Witherell became one of  hundreds of prisoners, but he ultimately returned to his duties as a territiorial judge.

After the war, the give-and-take with Woodward continued. In 1817, as Detroit grew, Witherell and new Territorial Gov. Lewis Cass reduced streets to 66 feet wide and overturned Woodward’s scheme of “circuses,” where streets came together in open space. He continued as a judge after Woodward left for Florida in 1825. Three years later Witherell became territorial secretary and, that autumn, figured in preserving the freedom of two runaway slaves from Kentucky; his principled stance cost his reappointment by President Andrew Jackson, ending his career. 

After Witherell died on Jan. 6, 1838, the new State of Michigan’s Legislature and Supreme Court passed resolutions saluting him, and the bodies adjourned as a mark of respect. Witherell Street, which originates at Grand Circus Park and bounds Comerica Park on the west side, commemorates James Witherell, whose legal and physical frameworks helped Detroit flourish as a city and a manufacturing hub.