In 1784, in anticipation of American control, the Detroit records then existing were removed to Quebec, but some of them were returned at a later date. The Canadian grants of land were made by the governors and intendants, but were subject to approval by the king, by what was known as his "brevet of confirmation." In 1805-1806 James May and others, in a memorial concerning some disputed land titles, stated: "it is not known whether or not the Brevet of Confirmation was ever given, and it is a Thing that at this late day cannot be enquired into, as the Archives of the French Government are not to be found in either of the Provinces of Canada." There was a law adopted in the Northwest territory for recorders' offices in 1795, but it provided only for records of deeds to land. Moreover, Detroit was not under its control at the time, and the system evidently was not adopted there, for one of the first laws of the territory of Michigan was to provide for the registration of deeds. Presumably the French notarial system continued until that time; and indeed the record of this bill of sale shows that it did, for there was no provision for recording bills of sale in the Northwest territory.

It may interest you to know that this same record system still exists in Canada. Being unable to find anything official as to the old French system, I sent an inquiry to the Honorable Arthur Doughty, the dominion archivist, and duly received the following memorandum from his office:

Article 4575 of the Revised Statutes of the Province of Quebec (1909) defines as follows the duties of notaries :

"Notaries are public officers, whose chief duty is to draw up and execute deeds and contracts, to which the parties are bound or desire to give the character of authenticity attached to acts entered into under public authority, to assure the date thereof, to have and preserve the same in safe keeping, and to deliver copies or extracts therefrom.”

Article 4589 adds that

"The chief duties of a notary in addition to those above mentioned, or which may be contained in any other provisions of this chapter are: 1. To have a suitable place for his office and to keep his originals, repertories and indexes in a proper state of preservation."

8 James V. Campbell, Outlines of the political history of Michigan (Detroit, 1876), 190.

"Miscellaneous documents," in Michigan pioneer collections, 8:551.

The above duties were those of the old notaries of the Province of Quebec and Lower Canada. The original documents are kept on record by the notary; a repertory or register in which the deeds are entered, (but not copied in extenso) and an index are also kept by the notary. The documents or deeds filed in his "archives" are called minutes. Any person may take a document of any kind to a notary, to have it filed and authenticated.

10

There is a very important additional reason why a document recorded at Detroit in 1803 might not be found there now. On June 11, 1805, Detroit was completely destroyed by fire. The conflagration continued for four hours, and consumed every building in the place but one. The people got some of their personal effects out of the houses, and carried them to the river, but even there much of this personal property was set on fire by sparks, and burned up. The destruction was so complete that the old lot boundaries were abandoned, and a new town was laid out, each of the former lot-owners being allowed a lot in the new survey." The stories of this fire are quite detailed. Among them is one that the village baker had just put a batch of bread in his oven before the fire began; and that on investigating after the fire he found that it had been cooked to a turn, giving the victims of the fire a welcome supply of bread. But there is no account of the survival of any notary's vault, or of the preservation of any records. Under these conditions, it is obvious that any Detroit documents of date earlier than June 11, 1805, of which record was made at later dates, were certified copies that the owners had retained, and which had been gathered up from various sources. In the Nash case, the certified copy, if in existence at all, is presumably among the papers of the Louisiana court. The failure to find the document or the record at Detroit cannot be considered as material evidence that it did not at one time exist there.

10 Silas Farmer, The history of Detroit and Michigan; or, the metropolis illustrated; a chronological cyclopaedia of the past and present, including a full report of territorial days in Michigan, and the annals of Wayne county (Detroit, 1884), 489; Robert R. Ross and George B. Catlin, Landmarks of Detroit (Detroit, 1898), 278; "Reports of counties, towns, and districts," in Michigan pioneer collections, 1:346; C. M. Burton, "Some of the benefits that accrued to Detroit from the devastating fire of 1805," Ibid., 22:432.

CHAPTER 2

On a pleasant afternoon of the year 1916, a solitary pedestrian might have been seen descending the staircase from the mezzanine floor of the Indiana state library. It was Dunn, the detective. For several years he had been submerged in political life, and had not had time to keep in touch with current historical research; but, having been handed the hot end of a political poker, he had again turned his eyes to the past. Association with men of the past has one advantage over association with the living. If you happen to fall among thieves, they cannot "spring up and choke you"-to borrow a scriptural phrase. The detective had found Mr. Prussing's article in looking over the last volume of the Wisconsin historical society's publications, and by it had been directed to Professor Quaife's volume, which he had not heretofore examined. He was now on his way to examine the original report of the Nash case, in the supreme court library. This was due to a misapprehension that Mr. Prussing had not reproduced the Louisiana decision in full, which was caused in part by the fact that the quoted report says nothing about the bill of sale being forged, and partly by the fact that the printer has improperly put a line of large type into the quoted words, which would naturally indicate an omission. We will now let the detective continue the story in his own words.

I was not greatly interested in the decision itself. Thirty years earlier I had made a rather full examination of the question, and had satisfied myself that slavery did exist legally in the Northwest territory, under the Ordinance of 1787, as to the slaves of the old French residents, although there were several decisions to the contrary in states outside of the Northwest territory. A Louisiana decision did not affect that conclusion, for the simple reason that Louisiana had no jurisdiction over the Northwest territory, and the decision of the Louisiana court had no effect except on the parties to the case before it. I found the decision as Mr. Prussing quoted it, but found no evidence of his deduction. Judge Martin, who made the decision, was also the reporter of the court, but the summary of the evidence in the case is a part of the court's decision, and the words referring to the bill of sale are as follows:

1. A bill of sale by which the defendant (Nash) was sold to them (Forsyth and Kinzie) "to have and to hold the said negro man, and to dispose of him, as they shall think proper." This instrument, bearing date the 5th of September, 1803, was executed at Detroit, in the Territory of Michigan, was there recorded, and is duly authenticated.

This language indicates that the document submitted in evidence was not a copy, but the original bill of sale; and if so, it was evidently one which was not required to be left with the notary. What the "record" was - whether a copy of the document, or a summary statement of its character, does not appear. But the essential fact is that the document was submitted to the court, and that it was judicially found that it "was executed at Detroit, was there recorded, and is duly authenticated." There is no indication that the genuineness of the bill of sale was questioned by anybody. What the court decided was that a bill of sale of that kind could not convey any title to a slave, because slavery could not exist in the Northwest territory under the ordinance of 1787. The theory that the bill of sale was a forgery therefore rests wholly on Professor Quaife's deduction, in these words: "In view of the fact that the articles of indenture whereby Nash bound himself 'voluntarily as a servant' to Kinzie and Forsyth for a term of seven years were executed in May, 1804, there seems to be no escape from the conclusion that the bill of sale was a forgery, fabricated for the use to which it was now put. Although it deceived the court, the fraud brought no profit to the plaintiffs." This is a very different proposition from that of Mr. Prussing that the Nash case "disclosed" that the plaintiffs "sought to hold Nash as a slave by virtue of a forged bill of sale."

But was the court deceived? The probabilities are against the supposition. Forgery is not common on the frontier. The crimes of the frontier are usually those of violence, and not of stealth. Forgery calls for expert penmanship, and if we may judge from the spelling and punctuation of the indenture of apprenticeship, the parties who drew it up would have had some difficulty in imposing on the Louisiana court, for it would have been necessary to forge the authentication as well as the bill itself. Judge Francois Xavier Martin was probably the most learned member of the Louisiana bench, and also the most

experienced in the examining of documents. He was born at Marseilles, France, and was well educated. At the age of seventeen he emigrated to Martinique; and after several years' stay there, came on to the United States. In 1786 he located at Newbern, N. C. Here he learned the printer's trade, conducted a newspaper, published school-books, almanacs, and decisions of the supreme court. He engaged in the practice of law, and served in the North Carolina legislature. In 1809 President Madison appointed him federal judge for Mississippi, and the next year he was transferred to the territory of Orleans. On the organization of the state of Louisiana he was made attorney general, and two years later a judge of the supreme court. He continued in this office until 1846, the year of his death. Although blind for the last ten years of his life, he reported the decisions of the supreme court while he remained on the bench. He also wrote a history of Louisiana and a history of North Carolina, besides numerous legal productions, in French and in English. The degree of LL.D. was conferred on him by the University of Nashville, and also by Harvard. A man of this character ought to have been at least a fair judge of the genuineness of a document before him for inspection.

Evidently, Judge Martin had no prejudice in favor of Forsyth and Kinzie, for he makes the following statement from the argument for the defense a part of his decision:

The apparent unlawfulness of the authority exercised by the plaintiffs over the defendant, to which he may have submitted from his ignorance of his right or of the means of asserting it, is not repelled by his admission that he had a master, that he belonged to a person who had promised him his freedom. For while it appears that the plaintiffs de facto, though not de jure, kept the defendant for a number of years in servitude, it cannot seem extraordinary that he should refer to them by the appellation of his masters, and the alleged promise of freedom may well be presumed to have been made to allure the defendant into submission. Neither it is said, can the admission of the defendant that he ran away be received as conclusive evidence of a legal obligation to stay: flight from unlawful servitude being more generally resorted to than the bold assertion of freedom. Kept for a number of years, perhaps from his birth, in bondage, the spirit of the injured negro is said to have been borne down, by the influence which long exerted mastery creates.