Dawn of Detroit

by Tiya Miles

  William Tucker’s last testament was chillingly clear. He had bequeathed: “unto Catherine Tucker my Trusty and well beloved wife the farm I now live on together with all building stock (I mean, oxen cows sheep young cattle hogs farming utensils household furniture my Negro man and woman Peter & Hannah & their daughter and three sons). The sole use and benefit therof [sic] for & during the whole term of her natural life.”92 As soon as Catherine Tucker died or had the inclination, the Denison children could be sold. Their fate rested entirely in the hands of Catherine Tucker and her male heirs. Peter and Hannah Denison would have felt deep unease and even rage at this revelation. Their family was still together following the death of a man who had claimed mastery over them. But for how long?

  It is impossible to know exactly how events began to turn next, who said what to whom and when. The records of Detroit are silent on which person in the transaction initiated the contract of indenture. Perhaps Catherine Tucker sought fast cash to balance the finances of her estate, or perhaps she feared that a resentful Peter and Hannah would run. Maybe Elijah Brush saw the need for skilled labor following the fire and approached Catherine Tucker about acquiring her black man and woman. Whatever the impetus, in 1806, Catherine Tucker transferred Peter and Hannah for an undisclosed signing fee. She “indented” the couple “to Elijah Brush for one year, at the expiration of which they were to have and enjoy their freedom.”93 Elijah Brush had probably paid Catherine Tucker hundreds of dollars to make this deal for the Denisons’ removal. The couple’s children would remain with Catherine Tucker, however. This loss of their family must have dominated the thoughts of Hannah and Peter as they rowed the river to the remains of the old French port town where they had been purchased in 1780 and 1784 and separated, then, or prior, from their own parents.94

  The home occupied by Elijah and Adelaide Brush, as pictured in a drawing from the middle 1800s, took up the better portion of a city block. Sprawled across lush park-like grounds surrounded by pickets, the large two-story farmhouse had multiple front-facing windows framed by wood shutters and a long, covered front porch secured at the corners by columns. Crisscrossed by walking paths, the land supported shade trees, fruit trees, and thriving gardens.95 The house would have had stone chimneys. The doors may have been painted an emerald green, a color at that time viewed as “evidence of the taste and wealth of the householder.”96 The Brush farm, as it came to be known after John Askin’s move to Canada, encompassed more than a mile of land with 386 feet of frontage along the Detroit River just outside the fort.97 When the Denisons walked onto that land and into the home where they would work, they could not have helped but compare it to the more modest farmhouse of William Tucker. The Denisons also would have been quick to perceive the high social status of their new masters: Adelaide, the elegant daughter of a prominent trader, and Elijah, a big man in local affairs. At the time of the Denisons’ arrival, Elijah Brush’s stature, and hence his influence, were steadily expanding. He had been appointed co-mayor of the town in 1806 along with Solomon Sibley, and he was serving as treasurer of Michigan Territory as well as lieutenant colonel of the Legionary Corps.98

  Within the wooden walls of the home constructed on land purchased by Adelaide’s maternal ancestors in the period of the French and Indian War, the Brushes and the Denisons must have sized one another up.99 Hannah would have been told to keep the kitchen, clean the house, sew and wash linens and clothing, and serve Mrs. Brush as other enslaved women had done before her, while Peter would have been ordered to take on many of the regular duties of male slaves in Detroit. This included heavy agricultural work, construction and repairs about the place, delivery of parcels and letters, and the application of any specialized craftsman skills. Because Elijah Brush did not engage directly in the fur trade but instead represented clients in the industry, Peter was not dispatched to sea, made to clean and pack furs, or directed to transport malodorous skins across great distances. Instead, he was likely assigned to help clear the rubble in Detroit. All through the year that the Denisons lived with the Brushes, town residents were still homeless due to the fire. During the winter of 1806 and into that spring and summer, Detroit resembled a tent city, with temporary lodgings half open to the elements teetering among refuse piles.

  As days turned into weeks and weeks into months, the Brushes may have come to appreciate the particular attributes of the Denisons. We can wonder what the exacting Adelaide first noticed about the capable Hannah. Perhaps Hannah spoke often of her children in the French language, pulling on Adelaide’s heartstrings. Or perhaps Hannah, a woman handy with the needle, even claimed the superior skills of a dressmaker and could craft the fashionable clothing that Adelaide so adored. And Elijah may have recognized in Peter a self-possessed nature that indicated an unusual force of inner strength. Elijah may even have regretted the other man’s forced condition of servitude, feeling a flash of sympathy for the difference that class and color made. His father-in-law, John Askin, had after all once described Elijah Brush as a “warm hearted fellow.”100 So during the long winter months, when Detroiters relied on fires for heat, stories for comfort, and sleds for transport across icy waters, the Brushes and the Denisons may have gotten to know one another, slowly laying a fragile foundation for common cause. Even given the unequal power relations in place, something transpired between these pairs—perhaps a sense of mutual dependence, recognition, or even respect. By the time the calendar turned to the fall of 1807, the Denisons were suing for their children’s freedom, and they had secured as their attorney Elijah Brush, Esquire.

  Or maybe this story is inside out as I have told it, with emphases on the wrong elements. Maybe actions less romantic, but more heroic, actually occurred in Detroit that year. Perhaps Peter Denison had an unusual asset that he was able to leverage to change his family’s circumstances. He had relatives on the Macomb farm, which was parallel to Brush’s place on the other side of town. He was not unknown to Elijah Brush. The two men had probably met and even conversed in the past. Elijah sensed what Peter was made of. So upon the death of William Tucker in 1805, Brush and Denison negotiated an agreement. In exchange for something special from Peter, Elijah Brush would ask Catherine Tucker to release the Denisons under the auspices of a one-year indenture contract that would soon see the whole family freed. But then, a hitch. Catherine Tucker refused to let the children go. So while Peter and Hannah Denison lived in Detroit and worked for the Brushes, they strategized with the Brushes to challenge their former mistress’s right to continue holding the children as slaves. Like other enslaved people who engaged the services of attorneys, Peter Denison likely paid Brush’s fees by trading even more of his own labor. The case brought forward by Elijah Brush on behalf of the Denisons would test the court system of Michigan Territory as the first freedom suit to be heard there. Brush, in his own words, “had always considered the Subject of Slavery as very doubtful in the Country, and as highly necessary to be Setled by Some judicial decision.” He wanted to be the one to argue the matter, “but had no clear idea what the ultimate decision was likely to be” in the suit described many years later by a scholar of African American history as “Michigan’s Own Dred Scott Case.” Denison v. Tucker, decided in the fall of 1807 by a single judge, constituted the rationale that regulated slavery until Michigan statehood in 1837.101

  Established in July of 1805 upon the birth of Michigan Territory, the Michigan Supreme Court was a “loosely organized, often whimsical bench.” As no physical courthouse existed, sessions were held in any available structure, including the Indian council house, offices, taverns, “and sometimes on a Woodpile.”102 The rough-hewn quality of this arrangement suited Chief Justice Augustus Woodward, whose focus on the life of the mind led him to bathe seldom and dress with scant attention to polish or presentation.103 Perhaps in part because he was known as “quarrelsome” and “slovenly,” Woodward never married, concentrating his energies instead on the tasks and problems set before him as a manic, conceited, and some have sa
id “brilliant” visionary of the territory.104 One of the mottos scrawled into the pages of his notebooks read: “Tis better to excel in knowledge than in power.”105 While Woodward’s pursuit of government posts over the course of his career shows that he was not immune to the allure of status, for him, research, reading, and knowledge in the quest for “patriotism” and “virtue” were paramount endeavors and essential ends.106 So when Elijah Brush entered a motion on behalf of Peter and Hannah Denison, Woodward—a man who had written just over a decade earlier that blacks “must be hewers of wood and drawers of water forever,” consented to hear the case. The Michigan territorial judiciary had borrowed from Ohio law to establish the supreme court with “exclusive jurisdiction” over cases involving land title, matters exceeding $200, crimes allowing capital punishment, divorce, and appeals from the district courts. The Denison children would have been valued at far more than $200 and closer to $2,000. This case therefore fell squarely into the supreme court’s purview. Dutifully, Woodward issued a writ of habeas corpus, a right to inhabitants guaranteed by the Northwest Ordinance along with trial by jury. With the use of the writ, Woodward summoned Catherine Tucker into court to present the Denison children and testify as to her claim on them.107

  Habeas corpus had been applied over the centuries of Anglophone legal culture to prevent wrongful imprisonment and allow captive people to appear before a judge who would determine the reasons for their detention. No person, the practice presumed, should be held without just cause. In the 1700s, the writ became a tool for slaveholders to demand the return of fugitive slaves. The application of the writ in protection of enslaved people was more unusual, and in requesting it, Elijah Brush pursued an edgy legal strategy fit for his location on the borderland-frontier. Catherine Tucker was thus compelled by Judge Woodward to bring him the “bodies” of the Denison children.108 Unlike most freedom suits, which became more common in the nineteenth century, the Denison case would not turn on whether the Denisons could prove a “free maternal ancestor.”109 Instead, the future of these children would rest on the fine-grained interpretation of territorial and international law.

  In the case of Denison v. Tucker, Catherine Tucker’s statement on September 24, 1807, began as follows: “In obedience to the commands of the annexed writ of Habeas Corpus ad subjiciendum I have brought before the Supreme court of the territory of Michigan, the bodies, of Elizabeth Denison, James Denison, Sip Denison and Peter Denison Junr . . . together with the cause of their detention by me.” Tucker, represented by attorney Harris Hickman, claimed that she held the children “in Servitude, under the Authority of the Ordinances and Laws of Upper Canada, which existed prior to, and at the time of, the surrender of the Post and Settlement of Detroit.” Tucker was a British subject who had remained on the American side of the river. She argued that she was therefore due the protection of property guaranteed by the Jay Treaty, as the children were born to Peter and Hannah, slaves of her husband purchased for “a valuable consideration.” Because the children “were all born, within the precincts & Jurisdiction of the Post of Detroit, while it was a part of (and subject to the Laws of) the province of Upper Canada,” Tucker believed “she was entitled to hold them.” She signed this statement with her mark rather than her name, an indication that Catherine Tucker’s level of formal education was no higher than that of her bondspeople.110

  A beneficiary of slave labor who regularly represented his father-in-law and other members of the slaveholding class, Elijah Brush fought hard for the Denisons, arguing their case “at full length” a day after Catherine Tucker’s attorney presented hers.111 The text of Brush’s argument does not survive in the Michigan Supreme Court records, but we can intuit the outlines of his position. Peter and Hannah were now free following the year-long term of their indenture contract with the Brushes. Their children should be free as well according to the dictates of the Northwest Ordinance. Brush’s allegiance in this case was not to a principle of emancipation but, rather, to individuals with whom he had ties. Brush was loyal to those he claimed as part of his circle, and the Denisons could be counted as such for reasons both altruistic and self-serving. But neither Brush’s commitment nor his connections could win the day in court on such a consequential matter as property ownership. This case, as Judge Woodward saw it, went straight to “the question of Slavery” in the territory. And as he wrote in his final decision issued on September 26, 1807: “The question is novel, it is important, it is difficult.”112

  Augustus Woodward devoted thirteen pages, covered in a tight cursive scrawl with numerous lines of crossed out text and length-wise additions in the margins, to thinking through the complexities of the Denison v. Tucker case.113 Maybe he once again dusted off his books from Columbia, referencing his copy of On the Abolition of Slavery, Plan of a System of Jurisprudence for the United States, or Commentaries on the Constitution of the United States, as he struggled through his deliberation.114 He solicited information from James Wood, a colleague in Canada, and perhaps from legal associates back East or elsewhere in the western territories. Wood explained in a letter to Justice Woodward that: “Prior to the Conquest of Upper Canada by Great Britain, an Ordinance was passed by Mr. Raudot, Intendant of Canada, dated the 15th of April 1709, by which it was ordained that, under the good pleasure of his Majesty (the King of France) all Panis & Negroes which had been or which should thereafter be purchased, should belong in full property to those who had or who should purchase them in quality of Slaves.” Wood also disclosed that Elijah Brush was well informed of this precedent, suggesting, “if you will call on Mr. Brush he will give you a Volume containing the Laws of Upper Canada which I left with him this Spring & in which the Statute you allude to is contained.” Wood’s letter, dated August 18, 1807, six weeks before the Denison case came to court, is indicative of forethought. Elijah Brush was preparing his case months in advance, and Judge Woodward was expecting the charge against Catherine Tucker. Both men may have been influenced in their actions by a statute passed in Missouri, Louisiana Territory, just months prior in June of 1807, which permitted individuals being held as slaves to sue for freedom on the basis of wrongful captivity.115

  Augustus Woodward sought information from a Canadian regarding a nearly hundred-year-old French edict and may have looked westward for instructive territorial law. Deciding this slavery case in Detroit required as much. Because Detroit was positioned on a border and at the intersection of territorial, national, and international laws, Woodward had to contend with the legal history of two empires and one aspiring imperial nation, including layers of law dating back to the French colonial period. He had to grapple, as well, with the moral mire of slavery, the citizenship status of Catherine Tucker, and the birthdates and places of the Denisons. Woodward’s lengthy written decision began with a history of slavery in Europe (England, Spain, and France) as well as the United States, reviewed the Northwest Ordinance and Jay Treaty, defined the meaning of property, discussed “principles of the law of nations on the Subject of Slavery,” quoted the French ordinance on slavery of 1709 and the Canadian act of 1793 preventing the importation of slaves. While weighing all of these matters, Woodward professed that he held absolute the Constitution and authority of the United States. “The American government has promptly, Steadily and uniformly manifested its disposition to introduce its own forms of government, and to apply its own laws,” Woodward proclaimed. His chief aim was to affirm and strengthen America’s position as an independent nation. He therefore determined that his territorial court must resolutely uphold the international treaties of the federal government. Woodward acknowledged that the Northwest Ordinance mandated: “In this territory Slavery is absolutely and peremptorily forbidden.” Nevertheless, he also asserted: “the federal constitution required that provisions in a duly ratified treaty prevailed over any contrary local laws.”116 For him, the U.S. Constitution and treaties ratified by Congress trumped the quasi-constitutional nature of the Northwest Ordinance, which he saw as compara
tively “local.” Woodward determined that enslaved people born before the effective American era that commenced in 1796, even “after the application of American laws,” could be held in a “State of qualified slavery.” He accepted that Catherine Tucker was a British citizen, entitled to protections of personal property as spelled out in the Jay Treaty cemented between Great Britain and the United States. He therefore decided that Catherine Tucker was entitled to hold the Denison children as her property.