By Ross Parker
If you run into Barb McQuade, the U. S. Attorney for the Eastern District of Michigan some time in 2015, congratulate her for her Office’s milestone. This year marks the Bicentennial of the appointment of the first USA in Michigan Territory, Solomon Sibley in 1815. This makes the USAO the oldest law enforcement agency in the state.
Before there was a federal district court, a police force, any federal criminal investigative agency, or even the State of Michigan, there was a U.S. Attorney’s Office. Of course the log cabin where Sibley represented the federal government’s interests, among his other legal clients, is hardly recognizable as a USAO by today’s standards. He had a desk, a supply of quill pens, some ancient English law books, and a fireplace to get him through those rugged winters.
For his federal cases he was paid $5 per court day. Transportation was by horseback, mostly on Indian trails. There were few roads. Communication with Washington was slow and erratic. It took about two months to receive letters sent to the rustic village of Detroit. Since the Justice Department would not be created for 55 years, Sibley and his successors had limited support or guidance from the Capitol.
It is difficult to appreciate the uncertainties surrounding law and the judicial system in those early years when the infant nation was struggling to exist. Translating the rule of law and the concept of justice into the hard scrabble everyday lives of the settlers was an uncharted course. Even after determining a rough idea of what the law was supposed to be, the conflict between policy and practice was particularly challenging in Michigan because of its history of occupation by the Indian tribes, the French, the British, and then the American settlers whose heritage was from many different countries. Due process developed case by case involving people of widely diverse cultural backgrounds, people who had very different ideas about what the law was and how it should be applied in particular situations on the frontier.
Civil cases included collecting debts owed to the federal government, sorting out the chaotic French land grants and estates and interpreting Army supply contracts. The first case involved a forfeiture action against a shipment of lumber which had been smuggled into the Detroit port to avoid payment of duty.
Criminal cases involved charges of counterfeiting, receiving stolen goods and larceny, and starting a riot. The early USAs were practical men. When there were not enough grand jurors to make a quorum, they simply sent the U.S, Marshal out to round up some bystanders.
Sibley and the other USAs started out with the elementary principle that this would be a government of laws and not men. The rights and liabilities of the citizenry were given life incrementally by the resolution of disputes about the application of law, not the exercise of discretion by the powerful. However imperfect at times, the process slowly evolved into the due process system we enjoy today.
No law enforcement institution is perfect. There have been cases lost and prosecutions unsuccessful. But the USAO EDMI has been remarkably free of impropriety. Of course there was that attempt by USA Daniel LeRoy in 1828 to resign in exchange for half of a successor’s $250 annual salary. But the USAO soldiered on through the challenges of the Civil War and its aftermath of crime, the explosive expansion of the federal government near the end of the 19th and throughout the 20th Centuries, the failed social experiment of Prohibition with its court congestion, crime and corruption.
Like the rest of America it was a white male institution with no women or African American attorneys until the late 1940s. Appointments of Assistants was a political process into the 1960s with each new administration brooming out the AUSAs to make room for new appointees, who then started from scratch to build an experience level to cope with a burgeoning caseload.
But somehow the legacies and progress continued despite these counter-productive practices. As Justice Cardozo noted a century ago, justice is a concept that is never finished but which reproduces itself generation after generation in ever changing forms.
So happy birthday to my former colleagues and staff in the USAO. Your work is important to that process of rebirth and toward a system which protects every person’s right to a fair day in court.
If your computer is freezing up and a federal judge has been tough on you on a particular day, remember it could be worse. You could be putting your briefs in a saddlebag and trudging through the snow on an Indian trail to get to court instead of scampering across Fort Street.