And the testimony on both sides being closed ment cannot co-exist in any of their respective and commented upon, and the said court being departments; that if the lessors of the plaintiff about to charge the said jury, and to commit to were well incorporated, and competent, in virthem the said cause, the said defendants, by tue of said act of incorporation of the Legislatheir attorney, moved the said court, and re-ture of the State of Michigan, to take and hold quested them to charge the said jury, in the the lot or premises in question, then the terriwords or effect following, to wit: torial government of the Territory of Michigan First. That the act herein before mentioned, was, at the date of said paper, writing, or deed, entitled, "An Act to incorporate the members under which the lessors of the plaintiff claim of The Detroit Young Men's Society," was not title, *abrogated and at an end, and the [*347 of force, or in any wise sufficient in the law to governor and judges of said territory had no create and constitute of the lessors of the legal existence, and said deed is therefore void, plaintiff a corporation or body politic, in the and can convey no title in any event; therelaw, capable to take or hold said lot or prem-fore the plaintiff cannot recover. ises, nor the title thereof, nor to exercise any 346*] corporate rights or powers in virtue *or under color of said act, unless the jury should find that the State government of the State of Michigan was, at the time of the passing and approval of said act, established, and in full and legal force and operation.

Second. That from and atter the establishment and coming into force and operation of said State government, and of the Legislature thereof, the territorial government established by the United States, and previously in full force in and over the Territory of Michigan, ceased, and in law and in fact became abrogated, superseded, and annulled.

Third. That from and after the coming into effect and operation of said State government, the powers, duties, and office of judges of said territory ceased, and became in like manner abrogated and abolished, and by consequence the said Solomon Sibley, George Morell, and Ross Wilkins, as said supposed judges of said territory, were no longer, after the said establishment and coming into operation of said government, competent in the law, as such judges of the Territory of Michigan, by said supposed deed by them executed, to convey any right or title in, to, or of the said lot No. 56, or the premises in question to the said lessors of the plaintiff, nor to perform any other of the functions, nor exercise the powers, previously conferred by any act or acts of Congress upon the territorial judges of said Territory of Michigan.

Fourth. But if the said jury should find that the said Solomon Sibley, George Morell, and Ross Wilkins were, on the said first day of July, in the year 1836, severally in the legal exercise of the office of judge of said Territory of Michigan, duly appointed by the United States, and holding office under such appointment, and that they severally signed anu sealed said paper, writing, or deed, in the execution of their said offices, according to the Act of Congress entitled, “An Act to provide for the adjustment of titles to land in the town of Detroit and Territory of Michigan, and for other purposes," approved April 21st, A. D. 1806, then that by consequence it followed and resulted that the said Act, entitled, "An Act to incorporate the members of The Detroit Young Men's Society," was without authority, and in contemplation of law did not create nor constitute the lessors of the plaintiff on the 26th day of March, A. D. 1836, nor on any other day, a corporation or body politic, and corporation competent to purchase, acquire, or hold the lot in question, or any real estate whatever.

Fifth. That a territorial and State govern

Sixth. That the paper, writing, or deed under which the lessors of the plaintiff make title to the lot or premises in question, being a deed of bargain and sale, and not a donation, is void, and can in no manner be the foundation of any title, not being executed by the Governor of the Territory of Michigan, as required by the act of Congress, in virtue of which it purports to have been made and executed; and therefore the plaintiff cannot recover. All which charges the court refused to give to the said jury, and to which refusal the defendants, by their attorney, then duly excepted; and, on the contrary, the court charged the jury that the lessors of the plaintiff were well incorporated by the Legislature of the State of Michigan, and by a body competent so to do, and that the aforesaid deed, under which the lessor of the plaintiff makes title, was well executed in the law, and by those competent in the law to convey title to the lot or premises in question; and that, on the 1st day of July, 1836, there was a governor and judges of the Territory of Michigan, competent to convey title to the premises in question, under the act of Congress referred to in said paper, writing, or deed; and that, under said act of Congress, the said paper, writing, or deed was well and sufficiently executed without being executed by the Governor of the Territory of Michigan, or being acknowledged or proved, as required by the law of the time when the same was made, in relation to all the conveyances affecting real estate; to which charges of the court the defendants excepted.

was

The Supreme Court of Michigan, in March, 1843, affirmed the judgment of the court below, 1 Dougl. Mich. Ř. Ì19, and the cause brought before this court by a writ of error, issued under the twenty-fifth section of the Judiciary Act.

It was argued by Mr. Woodbridge for the plaintiffs in error, and by Mr. Howard and Mr. Hand (in a printed argument) for the defendants in error.

Mr. Woodbridge, for the plaintiffs in error, enumerated the following causes of error in the decision of the court below, viz.:

That the evidence tendered and offered to be introduced at the trial of said cause by the said plaintiffs in error, in support of the right and title specially set up and claimed by them, under the act of Congress in said record mentioned, as by the said record appears, was rejected, and not permitted to be read and heard on the trial of said cause; whereas, by the law of the land and a just construction of said act of Congress, the same, or some of it, ought to have been admitted and received in evidence on said trial.

348*] *That the matters and things which the said plaintiffs in error moved and prayed the court to give in charge to the jury, as the same in said record are stated and set forth, were not so given in charge to said jury; whereas the same, or some part thereof, ought to have been so by the court given in charge, and the jurors who tried the said cause so therein instructed.

That the matters and things given in charge to the said jurors at the trial of said cause, and as the same in said record appear, ought not, according to the law of the land, to have been so given in charge, nor the said jurors to have been so instructed.

ground, that, upon a just construction of the Act of Congress of April 21, 1806 (which constitutes the territorial governor and judges ex officio commissioners or trustees, with power, in the manner and for the purposes it indicates, to convey the title of the United States to those lots, and also to ten thousand acres of land adjacent to the city of Detroit), the joint concurrence of the governor of the territory in the execution of the deed was indispensable.

Its admission was also objected to, on the ground that the lot in question was not a part of the ten thousand acres mentioned in the act of Congress, which, alone, the trustees were authorized to sell for money; but a lot within the That, on the face of the record and proceed-limits of the town, with respect to which the ings aforesaid, it appears that the certain legis-trustees could dispose of it only by a deed of lative act in said record mentioned, the validity confirmation to a previous proprietor, or by whereof was drawn in question in said cause on the ground of its repugnancy to the Constitution and laws of the United States, was decided and pronounced to be valid; whereas, by the laws of the land, the decision in the premises ought to have been against the validity thereof.

way of donation to some citizen of the United States who had been resident in the old town at the time of the fire, and who had suffered by the conflagration. There could be no pretense that defendants in error came within that description of persons.

It was objected, also, that the instrument This is an action of ejectment brought by sought to be introduced as a deed was not exedefendants in error, in the Circuit Court for the cuted nor authenticated according to the procircuit of Wayne county, in the State of Mich- visions of the ordinance of 1787, nor according igan, against the plaintiff's in error, for a lot of to the general law of the territory. But more ground in the city of Detroit. Exceptions be- especially it was objected, that it appears upon ing taken during the trial to sundry decisions the face of it to have been executed by the of the court, the cause was removed on error United States judges of the territory on the to the Supreme Court, the highest judicial tri- first day of July, 1836, many months after the bunal of the State. The several points made State government was, by the same State were there decided against the plaintiffs in er-judges, decided to have come into full operaror, and the judgment below (in favor of de- tion; and some four months after the defendfendants in error) affirmed. That judgment of ants in error had caused themselves to be inaffirmance and the whole record is brought by corporated by a body which assumed to be the error to this court. Legislature of a sovereign State. Assuming that the court would adhere to its own decision, and that, according to that decision, the State government had become fully and constitutionally established on a day prior to the incorporation of defendants in error, it was insisted that the territorial government must eo instanti have become abrogated; that the two governments could not exist together; that if the State government had become established, the office of territorial judge, as a consequence, must have ceased; that whensoever their office ceased, their power as ex officio commissioners or trustees ceased also with it; and that consequently their deed was void, as being no longer authorized by the law. These objections were all overruled. The document was received in evidence as a valid instrument to convey the land, and the decisions of the court severally excepted to.

The first testimony sought to be introduced by defendants in error (plaintiffs below) was a private act, appearing to have been passed by the Legislature of the State of Michigan, on the 26th day of March, 1836. It purports to incorporate the defendants in error by the name of "The Detroit Young Men's Society;" to vest them with the capacity to acquire and hold real estate, to sue and be sued, etc. The introduction of this private act was resisted, on the ground that this pseudo Legislature had no legal existence at the time of passing the act. That at that period, and both before and after, the territorial government established by the United States was in full and legal force throughout the District of Michigan, and that Michigan did not become a "State" until the 2th of January, 1837, some ten months after the date of the act objected to; and consequently that the act was repugnant to the sovereignty, Constitution, and laws of the United States, and, as such, of no force and null.

The act was permitted to be introduced and read, and was decided by the State courts to be a good and valid act to incorporate the defendants. To that decision due exception was taken.

Having thus, by the decision of the court, es349*] tablished their title *to sue, the defendants in error next offered in evidence the paper purporting to be a deed from the territorial judges, appointed by the President and Senate of the United States, which is set out in the record. Its admission was objected to, on the

The defendants in error having here rested their case, the plaintiffs in error, whose peaceable possession of the premises had been sufficiently *established, then undertook to [*350 prove that the same lot had been confirmed and conveyed by the governor and judges of the territory, in 1807, to "Tod & McGill," inhabitants, merchants, and proprietors of lots in the old town of Detroit before its destruction by fire. That, having thus become the property of individual proprietors, it became subject to be assessed and taxed, and, the tax remaining unpaid, to be sold for the payment of it. That it was so taxed, and according to the law of the land offered at public auction; and

that plaintiffs in error became the purchasers, and stores were holden in Detroit, when the and received a deed for it executed by the officer to that end appointed by the law.

sovereignty of the country passed successively from the French to the British government, and from that to the United States; and it continued unchanged until the Act of April, 1806; upon which act both the parties rest their respective claims of title.

In order to establish the important fact, that the title of the lot had passed out of the United States, plaintiffs in error offered and moved to introduce the journals and records of the governor and judges as a board of commissioners From the time General Wayne (in 1796) reor trustees (under the Act of 21st April, 1806).ceived possession of the military post at DeWhich journals and records purported to show troit, Michigan became a component part of that the "claims of Tod & McGill" had been the old Northwest Territory. When that terduly “adjusted," and the lot in question (with ritory was divided in 1800, it was made to conothers) confirmed to them as proprietors of lots stitute a part of the western division, or Inin "the old town." And, also, plaintiffs moved diana Territory. 2 Stat. at Large, 58. And and tendered to introduce proof of the declara- | in January, 1805, it was erected into a separate tions of the board (the governor and judges), territory, and its seat of government estabformally and officially made in 1828, in an- lished at Detroit. 2 Stat. at Large, 309. A swer to the official application of the asses- few days before the new government provided sor of taxes for that year (made with the by Congress for the territory was to go into view of obtaining that information which was operation, the town was totally destroyed by necessary to enable him to perform his duty as fire. This event, together with the peculiar and assessor); that the lot in question had been unsettled condition of its land titles, led to the conveyed by them, had become individual prop-enactment of the Act alluded to, of April 21, erty, and was therefore liable to taxation. Plaintiffs in error also moved and tendered to introduce the deed from the officer appointed by the law to conduct the sales of lands for unpaid taxes; the territorial law providing that the deed itself should be evidence of the regularity of the assessment and sale (Laws of Michigan, 1827, p. 378). All the above mentioned evidence as from time to time during the trial it was offered, was objected to by the defendants in error, overruled by the court, and those several decisions excepted to. Plaintiff's in error then moved the court to instruct the jury on the law as is set out in the record, which motion was in like manner overruled; | and the court then proceeded to instruct the jury to the effect stated in the record, to which decisions and charge plaintiffs in error excepted; and upon these exceptions, and in this aspect, the case comes before this court for revision and judgment.

1806, ch. 43. 2 Stat. at Large, 398.

Reversing the order in which the decisions objected to were made in the State court, it is proposed, first, to consider the titles of the plaintiffs in error to the lot in question, and the correctness of the decision by which our proof was excluded. 2d. The validity of the deed read in evidence by defendants in error, in support of their claim of title, and the correctness of the decision by which it was admitted as evidence. And, 3d. The validity of that legislative act, in virtue of which the defendants in error claim to have been incorporated, rendered competent to sue, and to acquire and hold real estate in their corporate capacity.

The character of the title of plaintiffs in error has already been alluded to. It is "set up" under the Act of Congress of 1806. 2 Stat. at Large, 398. The decision of the State court, in effect, is against it.

Having shown the identity of the lot, the Before commenting more specifically upon plaintiffs in error tendered in evidence their the points made in this case, it may be proper deed for the premises, executed by the officer to advert briefly to the history and general appointed by the law, and in respect to which character of the land titles at Detroit, as they the territorial *statute provides, that [*352 existed prior to the passing of the Act of 1806. the deed itself shall not only be evidence of the It was about the year 1720, that the French sale, but of the regularity of the proceedings constructed રી permanent fortification at which terminated in that sale. Terr. L. of 1827, Detroit. It was made to constitute one of a p. 378. This testimony was rejected until plainline of military posts extending from Quebec, tiffs in error should first have shown, by comthrough the country of the lakes, to New Or-petent evidence, that the title had passed out leans. The population had already become of the United States. Plaintiffs in error then 351*] *considerable, but no grants of land had yet been issued there. After it became a garrison town, other considerations prevented the issue of such grants. The general policy of the government was to retain the proprietary title to lands in the immediate vicinity of their forts. It was customary, however, for the commanding officers of the garrison to grant possessory rights to occupants of houses and lots; subject always, in any pressing exigency, to be revoked. These permits ultimately came to be considered as substitutes, practically as equivalents, for actual grants. They were bought and sold, and passed by descent. And the instances were rare, if any such ever occurred, in which the occupants were disturbed in their possessions.

Such was the tenure by which lots, houses,

offered in evidence the journals and records of the board (the governor and judges), for the purpose of proving the confirmation and conveyance of the premises to "Tod & McGill," according to the provisions of the first section of the Act of the 21st April, 1806.

They further tendered to prove, by the oral testimony of the assessor by whom the tax (in 1828) was assessed, for the nonpayment of which the lot was sold, that, in his character of assessor, he had applied himself to the governor and judges for a designation of the lots they had conveyed, for the purpose of enabling him to execute his sworn duties; that the board. without qualification, declared to him that the lot in question, among others, had been by them so conveyed, and that the lot was accordingly assessed for taxation.

The whole of this testimony, being objected | utes of a surrender and admittance (of copyto by the defendants in error, was rejected and hold estate) are evidence to prove transfer, excluded by the court. The State court prob- without producing original conveyance, etc. ably considered that the deed to "Tod & Mc- 16 East, 208. Gill" was of a higher grade of testimony; and, it is presumed, rested their decision upon that cardinal maxim, that "the best evidence must be given of which the nature of the thing is capable.'

But it is the reason of the rule which constitutes the rule. And I have seen that reason nowhere better stated than by this court in the case of Tayloe v. Riggs, 1 Pet. 596. After stating the rule as above, the court proceeds to say, "That is, no evidence shall be received which presupposes greater evidence behind in the party's possession or power. The withholding of that better evidence raises a presumption that, if produced, it might not operate in his favor. For this reason, a party who is in possession of an original paper, or who has it in his power, is not permitted to give a copy in evidence, or to prove its contents." 1 Pet. 596.

But a far more authoritative exposition of the law on this point is to be found in 5 Wheat. 424; 4 Cond. R. 714. The Bardstown trustees were appointed to lay out a town, dispose of lots, etc. The journals of their proceedings were offered in evidence. The court says, "The trustees were established by the Legislature for public purposes. The books of such a body are the best evidence of their acts, and ought to be admitted whenever those acts are to be proved." So in 4 Pet. 342; 16 Pet. 55, 56. This doctrine seems abundantly sustained by other authorities. 3 Dane, 510; Swift on Ev. 23; Esp. 423; Bull. N. P. 249; 4 Burr. 2057.

And even as between individuals, where there is no public trust, nor official oath, proof of an agreement to convey, united with long possession, will authorize a jury to presume a conveyance. 7 Johns. 5.

the United States; it is immaterial to whom; and no question could be made as to the terms of the deed. By passing out of the United States it became private property, and as such subject to tax, and to sale if the tax was not paid.

Our whole testimony was excluded by the State court; and that decision, we insist, is equivalent to a decision against the title we set *up under the act of Congress; for it [*354 admits the truth not only of what prima facie appears on the proofs like a demurrer to evidence, but also of all that the jury might justly infer from them. Consequently it is insisted, that the question upon this point is brought clearly within the scope of the 25th section of the Judiciary Act, and therefore within the jurisdiction of this court upon error.

In England all title deeds, upon alienation, And in this connection it may be proper to pass into the hands of the purchaser. This is remark, that all that it was incumbent upon the long established, and, it is believed, the plaintiffs in error to establish was the abstract universal custom, especially in the non-register-fact that the title to the lot had passed out of ing counties. Upon descent they go also to the heir, who may coerce their delivery if withholden. The law presumes, therefore, in England, that all title deeds are in the hands of the proprietor; and if a question occur as to their contents, he, being a party, must produce them, unless he show that they are no longer in his possession or power. In such a case the rule is legitimately applied. But it will be perceived, that the reason of that rule does not ap- | ply to this case. There may be something like privity of estate, but there is no privity of contract, between plaintiffs in error and "Tod & McGill." Their estate may be our estate, but 353*] it passed from them, *in invitum, by mere operation of law; and the law cannot presume that those gentlemen should voluntarily have given to us their title deeds. The deed, then, not being presumed to be in our possession nor power, we will be permitted by the rules, as well as by the philosophy of the law, to produce secondary evidence of the fact, which the deeds would verify. Thus, in a suit by a widow for her dower, it was holden by Kent that she need not produce the title deeds, for the law presumes it not to be in her power. Bancroft v. White, 1 Caines' Rep. 190. Nor in such a case is it necessary for her to coerce their production. 5 Cowen, 299; Adams on Ejectment, 68, note.

But it is not admitted that the journals and records of the governor and judges, in reference to the public trust confided to them by the Act of 1806, ch. 43, can be justly deemed as secondary evidence of their public acts. On the contrary, it is respectfully insisted, that they should be deemed primary, and of the highest grade of evidence as to those acts.

Thus, the original book of acts of a surrogate, containing an order or "fiat" for administration to be granted, is evidence of the issue of letters of administration. 8 East, 188; 13 East, 234-237; so in a note, Day's edition,

238.

Books of the steward, containing brief min

L

were

It

2d point. The defendants in error plaintiffs in ejectment in the State court. Did they, by legal evidence, show their right to possession? It is insisted that they did not; that the deed introduced by them was not sanctioned by the act of Congress, under color of which it was obtained; that the act of Congress was misconstrued, and the deed itself a nullity; and that any gross misconstruction of the land laws of the United States it is competent for this court upon error to correct. has been deemed very necessary that a uniform construction should be put upon the revenue laws. It can hardly be deemed less important, that the same uniformity should prevail in regard to your system of land laws. Nothing, perhaps, more nearly affects the peace, happiness, and prosperity of any country, than that its land titles should be placed upon a footing of permanency, certainty, and simplicity. There is a strong moral obligation resting upon Congress, and upon those who administer the land laws, that they should cause to be preserved the permanency and the certainty of a system which forms the basis of the titles of the millions of people whose rights to their own domicil rest upon the action of this gov

ernment. Besides, the public domain, too, [ unless the instrument conferring the power proconstitutes one of the sources of the revenue of vide otherwise, as in the case of awards. the nation, and its uniform construction should If the act to be done be a public act, and not be less rigorously enforced. I have not merely ministerial, a majority, as a general rule, been able to discover that the decision in may be competent to perform it. Matthews v. Zane, 4 Cranch, 382, has been over- If it be a public act, but yet one requiring ruled or shaken. In that case the court say, the exercise of discretion, deliberation, and ""Tis supposed that its object (i. e., of the Ju- | judgment, and not merely ministerial, all the diciary Act) is to give a uniform construction trustees should be present, that they may reto all the acts of Congress," etc. spectively interchange their views, reasons, and opinions; and, all being present, though a majority may decide, yet all should join in the execution of the act.

What is said in Buel v. Van Ness, 8 Wheat. 319, strongly corroborates the doctrine advanced in Matthews v. Zane; and the principle which forms the basis of the decision in Durousseau v. The United States, seems fully to justify and amply to establish it. 6 Cranch,

318.

*

I do not propose to consume time by commenting upon the principles and the authorities which illustrate these distinctions. Such is supposed to be their general spirit, where no In Willcox v. Jackson, 13 Pet. 516, 517, etc., variant course is prescribed by the law or inBeaubien's case, the defendant in error, being strument conferring the power. 4 Dane, 805, plaintiff in the State court, had set up a title 806; 1 Bac. Wilson's ed. 319; 3 T. R. 40, 380; under the acts of Congress, and the decision 8 East, 326-328; 2 East, 244-247; 1 Bos. & was in favor of that title; the law of the court Pull. 229, 241, note; 8 T. R. 454. The difauthorizing the admission as prima facie evi-ference of construction put upon grants of dence of the final certificate of purchase. The power in these different classes of cases [*356 court says, that this rule of evidence, rightly can hardly be sought for in any difference of construed, is not repugnant to the laws of the terms, because the same terms are construed United States; but that the decision of the differently, according to the character of the State court was founded in a manifest miscon- power. A literal interpretation of the words struction of the land laws. This court then sus- used would seem to require the universal contained its jurisdiction upon error; and, although currence of all the trustees. In cases of public the defendant set up no title in himself, pro-trusts, considerations having reference to pub355*] ceeded to correct the misconstruction lic convenience probably induced a relaxation of the State court, and reversed its judgment. of the more literally exact interpretation. But If this case do not, in direct_terms, re-affirm if, in particular cases, from any peculiarity in the doctrine of Matthews v. Zane, it at least the terms used to confer the power, or from strongly illustrates its correctness and wisdom. other considerations suggested by the nature But in the case before the court, both parties and objects of the power, an intent may be inclaim title under the same act; the decision | ferred to require such unanimity, the courts must necessarily be in favor of the one, and would, no doubt, fall back upon the literal against the other; and, as in the analogous construction. cases of Ross v. Barland, 1 Pet. 655, 662, and of Pollard's Heirs v. Kibbe, 14 Pet. 353, the plaintiff in error, against whose title the State court decided, having brought the case here, the whole case may properly become the subject of cognizance; the more especially as it seems to be the law of this court, "that a plaintiff in ejectment must show the right of possession to be in himself positively, and it is immaterial as to his right of recovery whether it be out of the tenant or not, if it be not in himself." 9 Wheat. 524. Assuming, then, that "a case consists of rights and claims of both parties," and that the whole case is here, it is proposed next to show that the instrument in writing, purporting to be a deed, and given in evidence against our objection, was not competent to be introduced as evidence of title.

First. Because it was not executed by the governor of the territory.

Second. Because, on the face of it, it does not purport to convey the lot to any of the persons provided for in the first section of the Act of 1806; nor to convey any of that land which the governor and judges were authorized by the second section of the act to sell and convey. As to the first point: whether any power or trust can be properly executed by a bare majority of those upon whom such power is conferred, is sometimes a complicated question not readily solved.

The Act of 1806 exhibits, it is believed, a case for the application of these remarks, and prescribes on the face of it its own rule of construction.

The first section of that act points to three distinct objects. 1st. The laying out of the new town. 2d. The adjustment of the claims and possessory rights of resident proprietors, and the execution of deeds to them; and, 3d. The grant of donation lots to that class of resident citizens designated in the section. The proper execution of these powers implied the necessity of vigilance and patient examination, of discretion, and of judgment. But it held out no temptations to avarice, nor called into action any peculiarly elevated sense of moral integrity; and therefore the law says, that "the governor and the judges, or any three of them, may execute those trusts."

But the trust specified in the second section is of a very different character. That section authorizes those gentlemen to sell for money a very valuable property, and to apply the proceeds of those sales, in their discretion, to the purpose of constructing a court-house and jail for the county, in the place of those which had been destroyed by the fire; and all this without the probability of being called to any, or to a very strict account. The proper exercise of such a trust implied the necessity of the firmest integrity of moral attributes so pure

If the power relate to an individual and as to elevate them above all imputation of sorprivate act merely, all must concur in the act, did or unworthy influences; it implied, too, the

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