2009-08-08 / Columnists

A Look at History

Key Legal Precedents Are Set in Mackinac Island's Historic Courthouse
BY FRANK STRAUS

One of the political issues that we Americans have faced this summer is how many additional rights, if any, we have in our own homes. Human "rights" have been, and continue to be, extremely attractive to almost all of us. At the same time, the dilemmas caused by the clashes between different kinds of human rights are the source of endless discussions as we Americans move forward in our lives and our history.

Next to the front door of our old county courthouse is a historic plaque to remind passers-by on historic Market Street that this is the building where, in 1859, was heard the legal case of "People v. Pond." Although this historic criminal trial is now 150 years in the past, its echoes continue to this day. What rights of self-defense do we have in our own homes? If we are in one of the groups that nowadays are called "persons of color," how does this affect the way we enjoy these rights?

In the 1850s, huge schools of fish swam up and down along the shores of Mackinac County and the Eastern Upper Peninsula. Over-fishing was just beginning, and the alien species of later times had not yet invaded the Great Lakes, and so great quantities of lake trout, whitefish, and other scaly creatures of the piscatorial kind were netted, salted, laid down into "wet barrels" made of fitted staves of white oak, and shipped south to the growing cities of the lower Lakes to feed workers in the new factories.

The courthouse on Market Street can be seen to the far right in the center portion of the picture. This is where the People v. Pond trial took place. (Photograph courtesy of Tom Pfeiffelmann) The courthouse on Market Street can be seen to the far right in the center portion of the picture. This is where the People v. Pond trial took place. (Photograph courtesy of Tom Pfeiffelmann) Well west of St. Ignace, Seul Choix Point on the U.P.'s southern shore was still a part of Mackinac County in the 1850s. Here in 1859 lived fisherman Augustus Pond, his wife, and his three children. Pond, like many successful fisher-folk, had built himself a little "fishing station" with not only a house for himself, but also a shanty nearby where his boathands lived and the Ponds kept their fishing nets.

But the Ponds were not alone at Seul Choix in June 1859. Fifteen or 20 other men also were there, on June 16 and 17 of that year, and according to the testimony that was later offered in court, words - and more - were exchanged between Pond and this group over the course of that 36-hour period. Some of the men drank and talked to each other about how they were going to "whip" Gus Pond.

Pond and his family were Native Americans. Did that play a role in what was about to happen? Who can say? Relations between whites and Native Americans in 1859 were better, in northern Michigan, than almost anywhere else in the United States at that time. That is not to say they were good.

Very early on the morning of June 18, three of these loudmouthed men formed themselves into a small gang and attacked Pond's Seul Choix nethouse. Two of the men began to rip the shingles off the roof of the shanty, and the third one entered the little building and began to choke one of Pond's boathands, who had been sleeping inside. This created a loud noise, and Pond appeared at the door of his house not far away and shouted: "Who is tearing down my nethouse?"

No answer.

"Leave, or I'll shoot!"

Still no answer, except the rending of the flimsy boards of the shanty as the two men continued their work. Pond repeated the words, "Leave, or I'll shoot!"

No sound responded, except two half-strangled outcries from Pond's boathand, who had escaped or partly escaped his assailant and was crying for help. Then came the roar of a doublebarreled shotgun, and then silence. The sun rose. Dead, and lying in the low bushes of the sandy Lake Michigan shore, was Isaac Blanchard, Jr., a member of the gang that had tried to tear down Pond's shanty. The other two men had fled.

A few weeks later - criminal justice moved swifter back then - Augustus Pond and one of the surviving gang members faced each other again, this time in the Mackinac Island courtroom, Pond as the defendant and the survivor as a witness. The prosecutor summed up the case, and then it was the judge's turn; it was this judicial instruction to the jury that was to be at the heart of the case of "People v. Pond," and so we may want to lean forward a bit and listen in as the court reporter tries to take down the words in whatever shorthand was in use in 1859.

The judge admits that the defendant is claiming that he fired in self-defense. Very well, but if there is any alternative to firing a deadly weapon in selfdefense, the defendant should have taken it.

"In such cases it is the duty of the party to use other means, by retreating," the judge chides Pond. "He can only resort to the taking of life by a deadly weapon when the attack is being made so suddenly, and under such circumstances, that he could not, by retreating or otherwise, avoid the apprehended injury."

Pond's lawyer objected; stated that the gang had made a "willful, malicious, and destructive" attack upon his client's property; begged the judge to modify his instructions to the jury. The lawyer repeated words familiar to all men of law in those days, a phrase published by jurist Sir Edward Coke more than 200 years earlier in 1628: "A man's house is his castle."

The judge was unmoved. The Mackinac Island jury thereupon convicted Pond of manslaughter, and the judge sentenced him to serve 10 years in the state penitentiary in Jackson for this crime.

In prison, Pond appealed his conviction directly to the Michigan Supreme Court, as defendants had the right to do in those days. On May 12, 1860, the new state's highest bench issued its decision. The court disagreed with the Mackinac Island judge's instructions to the jury, believing that they had improperly excluded several elements that should have been presented to the jury in potential justification of Pond's decision to pull the trigger.

The assault on Pond's household ("peaceable members of society") and especially his boathand, the riotous nature of the Seul Choix gang ("restless and wicked men"), and the forcible and violent nature of their attack on the Pond household ("peril or fear of great injury or death"), were determining elements in the unanimous decision of the four Lower Peninsula justices to undo the results of the first trial and grant a new process.

For Pond, the Supreme Court's final word in the case of "People v. Pond" meant his freedom. Although the Mackinac County prosecutor could have re-prosecuted him, for unknown reasons he did not do so; the Civil War broke out in 1861, and it is possible that war's upheaval made a new trial impossible. Pond remained in the Mackinac area until his death four year later, in 1864. He is buried in St. Ignace.

The principle of self-defense set down by the Supreme Court's decision in "People v. Pond" have been reaffirmed several times since in Michigan law. As recently as 2006, the Michigan legislature passed a Self Defense Act that put into statute many of the elements set forth by this decision, now almost 150 years old, in justifying the use of deadly force in extreme circumstances to defend one's home or property in Michigan.

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