necessity of peculiar caution on the part of those conferring it. In the execution of it, the presence, the deliberation, the concurrence of all were important. It will be observed, accordingly, that this power is made the subject of a separate section, and of distinct provision. It will be observed, that the qualifying expression "or any three of them," twice and emphatically repeated, when providing for the trusts specified in the first section, is altogether and ex industria omitted in the second. And why is this, unless it be that Congress intended to vary the rule, and to adopt the more rigid, literal, and better guarded construction? It is contended, then, that no act of sale-no deed of conveyance, unless it be for some purpose 357*] provided for in the *first section--can be of any validity, unless concurred in and executed by all the members of the board. This view is strengthened by what has always been the practical construction, as is contended, put upon the statute before the period when the deed objected to was executed. Not an instance before can, it is believed, be found, where any deed, granted in execution of any of the powers defined in either section of the statute, ever before emanated without the signature of the governor or of the acting governor of the territory. town (see map of the city of Detroit, in 5th vol. of State Papers, p. 494), and constitutes, beyond a doubt, one of those lots which should have been confirmed to its ancient proprietor; and if not claimed by such proprietor, then it could only have been conveyed as a donation lot, in conformity with the act. And if it be said that these things do not sufficiently appear on the face of the deed, then it may be replied, that that very omission constitutes a defect in the deed, which should be esteemed fatal. The authority conferred upon the governor [*358 and judges was an authority not coupled with an interest. Such an authority must not only be strictly pursued, but it must appear on the very face of the transaction to have been strictly followed. Under the first section no deed is competent, except it be a deed of confirmation or of donation. Under the second section no deed is competent, except it be for a part or the whole of the 10,000 acres; such deed must be executed by the governor and by the judges. It must, in either case, purport to convey the right and title of the United States, and not the title of the governor and judges; or of the judges, as this does. If it be for a part of the 10,000 acres, it should state that fact. The deed is not for a defined tract, but for so much of said lot as had not been previously conveyed by their predecessors. It is not acknowledged; it is not authenticated according to the ordinance of 1787, nor according to the lex temporis. It bears evident marks of imperfection, haste, and crudity. "It lacks substance, and wants form," and ought not to have been read in evidence. But, thirdly, it is most of all and signally defective, in that it purports to convey the lot to such as are not in the law competent to acquire, nor to hold real estate, and to such as have no title to sue. The governor and the judges were the heads, respectively, of two great departments of the territorial government. In the conferring upon those officers, jointly, the power of adopting laws for the territory, the ordinance of 1787 uses words of similar qualification. That high power is granted to the governor and judges, For a majority of them." But it has always been deemed indispensable, that, in order to give validity to such laws, the governor must have concurred in their adoption; the qualification "or a majority of them," having always been construed as having reference to the judges only-the last antecedent. And in the grant of the powers specified in the first section of the Act of 1806, ch. 43, it seems prob-entee) "passes no title," says Mr. Justice Catron able that Congress had reference to the devolution and the limitations of the powers conferred upon the same classes of officers, acting in the same territory, as defined in the ordinance of 1787. But however this may be, it is respectfully insisted, that the deed objected to-being a deed of sale, and not a deed of confirmation nor of donation-is fatally defective, being without the signature of the governor. But, secondly, the deed is objected to because it does not purport to convey said lot to any of the persons provided for in the first section of the Act of April 21, 1806, ch. 43; nor does it purport to sell and convey any of the land which the governor and judges were authorized to sell and convey by the second section of the act. It is manifestly clear, that the defendants in error do not come within the description of either of the classes of persons mentioned and provided for in the first section of the act. The only power conferred by the second section is that of disposing of the lands comprised within the "10,000 acres adjacent to said town," by sale, and of applying the proceeds as in that section is provided. Now, the lot in dispute is not a part of the 10,000, but is in nearly the middle of the | That there must be a grantee, in order to constitute a grant, is a proposition not likely to be contested here. "That a patent thus made" (after the death of the supposed pat (12 Peters, 298), "is true in the nature of things; there must be a grantee before a grant can take effect; and so this court held in Galt v. Galloway," 4 Peters, 345, "and McDonald v. Smalley," 6 Peters, 261. Was there, then, a grantee, capable of taking under the deed read in evidence in the State court? In order to establish the affirmative of this proposition, the defendants in error introduced what purported to be an act of the Legislature of the State of Michigan, of the date of March 26, 1836 (Laws of Mich. for 1836, p. 165), constituting them a body politic and corporate, etc., as stated in the recard. If defendants in error were by that act duly incorporated by the name they assume, they were competent to acquire real estate; if not so incorporated, they were incapable of receiving it, and their deed is void. If they were thus duly incorporated, they were competent to sue; if not so incorporated, they had no title to sue. The validity of that act was therefore necessarily drawn into question. To the introduction of this document, as a private legislative act, to suffer it to be read as the law of the land, it was objected that it was not passed by any competent authority, and It cannot be necessary here to refer specifically to that clause in the Constitution which vests this power in Congress. But it is understood to be assumed, on the part of the defendants in error, that in virtue of the stipulations contained in the fifth of the articles of compact, set out in the ordinance of July 13, 1787 (1 Statutes at Large, 51), Michigan became an admitted member of the Union from the time her population amounted to 60,000, and had formed a permanent constitution and State government. The terms of the ordinance provide, that when these contingencies shall have happened, the new States there spoken of "shall be admitted by their delegates into the Congress of the United States on an equal footing," etc. It will not escape notice, however, that before such admission can be effected, other and preliminary measures must be determined upon by Congress. who might be disposed to remove and buy there. that it was repugnant to the Constitution and laws of the United States. It was, nevertheless, admitted to be read in evidence, and the *But afterwards it pleased the whole [*360 defendants in error were, by the same State people of the United States to abolish their court, declared to have been duly incorporated, government, and to abrogate the old articles of 359*] *etc.;_ to which decisions exceptions | confederation. A new constitution was adoptwere taken. The whole matter resolves itself ed, an entirely new form of government was into the single question, whether, on the 26th established, which took the place of the old of March, 1836, Michigan was an independent one. A literal conformity with the stipulations State, and an admitted member of the Union. alluded to became, therefore, neither desirable If, by her own spontaneous movement; if, by nor possible. The Congress of the confederaassuming that name and character, she were tion consisted of but one chamber. The votes capable of constituting herself such, without taken in it were by States. It possessed little any action on the part of the national govern- power, except that which was merely advisory. ment, then she undoubtedly constituted at that It was rather a hall of ambassadors, than a legperiod one of these United States. But if the islative body. Such was the body into which, action of Congress were necessary in the mat- "by its delegates," the new State was promised ter; if it appertain to Congress; if it be the ex- admittance; and that body has ceased to exist. clusive prerogative of that body to admit new But those who framed the new government States into this Union, then we have a right to were too wise and too just to disregard the insist that she did not become an independent stipulations and engagements the old governState, not an admitted member of the Union, ment had entered into. The provided, thereuntil, by the Act of Congress of the 26th Jan-fore, for meeting those engagements, and fuluary, 1837, she was formally declared to be filling those stipulations, so far as that could such. See 5 Statutes at Large, 144. be properly done, consistently with the plan and with the leading principles of the new constitution. They deemed it expedient and wise to vest in Congress exclusively the power to admit those new States into the Union, whenever, in the exercise of a wise and just discretion, the exigency might seem to demand it; and they imposed upon the Congress the moral obligation of conforming to all the bona fide engagements of the old government, so far as it might be done consistently with the public good, and the paramount obligations of the new constitution. To have gone further might not have been wise. How far the provisions of the ordinance of 1787 would have executed themselves, if the government of the confederation had continued; and, if Congress had determined the number of the new States, and defined their boundaries, how far, by the mere force of the stipulations in question, each new State, as it should successively have acquired the requisite population, would have become a member of the Union without the further action of Congress, it is, perhaps, unnecessary to inquire. It may be remarked, however, that to admit a State into the Union implies the performance of some political act; that political act could be executed by Congress only. The form of expression used imples that at some future time that act shall be done; and can any more conclusive inference be drawn from the whole matter, than that an imperious moral obligation is devolved upon Congress to perform the act? But whatever speculations may be indulged as to the effect of the stipulations, had the government continued unchanged, The leading purpose of these "articles of it would seem most unreasonable to suppose, compact" unquestionably was, to establish on that, under the new constitution, it can by its a permanent footing over those extensive re- own force operate as an actual admission of gions the great principles of freedom and well the State without the further action of Conregulated liberty. How far that purpose will gress. That body, with whom the exclusive have been attained, future ages will decide. power remained, had not yet determined But another and a less disinterested purpose whether there should be one or two States was also had in view; and that was, to induce north of the southern extremity of Lake Michthe more early settlement of the country, and igan. It had not yet acted upon the subject of of course to make it a more ample and imme- the boundaries of such State or States, and diate source of revenue. To that end, the without such previous *action, how is [*361 promises contained in the ordinance were holden it possible, without a gross encroachment upon out as inducing and stimulating motives to all' the acknowledged prerogatives of Congress to The boundaries of three of those new States are defined, but subject to be varied, if Congress should deem it expedient to constitute more than three. In the event of there being more than three, the northern boundaries of the three are defined. But whether north of the three, there shall be established one or two additional States, and what shall be their boundaries respectively, are questions left open for the subsequent and future determination of Congress. The further action of Congress on those points, therefore, seemed not only competent, but indispensable, before it could become possible that Michigan should be admitted. constitute, by the gratuitous movement of the people of the territory, such State or States? Nor is it difficult to suppose that considerations other than those already alluded to might exist, which would render it just and expedient to suspend for a time the exercise of its power to admit a new State, which, having its sixty thousand inhabitants, should apply for admission. There may exist a difficulty with a foreign power in relation to boundary, which prudence may require the previous adjustment of. The Constitution requires that the representation in the House shall be in proportion to the population of the different States, and be regulated by a uniform ratio. [The exception to this rule having reference manifestly to two of the original thirteen.] The ratio of representation being fixed then at a larger number than sixty thousand, how, without violating this most essential and vital principle, and thus doing great injustice to the older States, can Congress admit such new State, while its population falls short of that required to constitute one election district? and habitual legislation by Congress. And insomuch as it would seem manifest that the ordinance of the confederation of July 13, 1787, cannot have the effect, proprio vigore, to constitute of Michigan an independent State of the Union, and as, from the foundation of the government, Congress has habitually exercised a sovereign control over the destinies of its territories, upon what basis can rest the pretension that Michigan could, of her own free will, throw off the colonial government established for her by Congress, erect herself into an independent and sovereign State, and nolens volens force herself into the Union. The Legislative Council of Michigan, as it existed in 1834-1835, was constituted by Congress. All the power it possessed was derived exclusively from the grant of Congress. It was appointed to uphold, and, within the sphere prescribed by Congress, to administer, the colonial government Congress had established; and to that end the official oaths of its members were administered to them. This same Legislative Council, under the lead of the youthful and The true principle would seem to be, that ardent tempered Secretary, who then, in the every ordinance, law, stipulation, and contract absence of a commissioned governor, personated made prior to the Constitution must thencefor- the sovereignty of the Union in the executive ward be construed and taken in subordination branch of our territorial government, comto it. That Constitution is the paramount law, menced a course of measures, with a view to and must prevail over every law or contract subvert and abolish that very government which which conflicts with it. By that Constitution, they had been appointed and sworn to administhe power to admit new States is vested exclu- ter, and on the 26th January, 1835, passed an act sively in Congress. It is altogether a political providing for the election and assembling of power; and for its proper exercise there is no delegates to form a constitution and State govother guaranty than will be found in the honor, ernment; and in the same act prescribed the wisdom, and moral sense of that body. That boundaries within and over which their new State power has been exercised. By the Act above should extend. How far it consisted with good referred to, of 26th January, 1837 (5 Statutes at faith, with their own official power and duty, Large, 144), Congress, by solemn declaration, and their oaths of office, thus to undermine the announced that Michigan was admitted as one very basis of their political power-thus to subof the sovereign and independent States of the vert a government to which alone they could Union. The authority for performing this look for whatsoever political power they pospolitical act--for making this legislative decla- sessed, or could exercise-it would be useless, ration-is to be found in the third section of the perhaps, now to inquire. The act has subserved fourth article of the Constitution. Congress its purpose, and has become extinct; and whatmay “make all needful rules and regulations" soever has followed in no wise rests on a founrespecting the territories, and Congress may dation so frail. The delegates invoked assembled establish and admit into the Union "new in May, 1835. They devised the form of a conStates"; and having thus the power, their exe-stitution and State government. They defined cution of it is beyond the control as well of the the boundaries within which it should extend. territories as of all other departments of the They demanded of Congress, in proper and set government. The history of each of the terri-phrase, that their proceedings should be sanctories, and long continued practical construction, sufficiently sanction this proposition. Michigan was originally a part of the old Northwest Territory. Without its consent, it was severed from that territory, and made to constitute a part of that of Indiana. 2 Statutes at Large, 58. In like manner, and without being consulted, it was, in 1805, erected into a new territory (2 Statutes at Large, 309), and its political organization and government totally changed; being thrown back from the second to the first grade of colonial government under 362*] the ordinance of 1787. Many successive changes in its fundamental law were afterwards, in a spirit of great kindness, but in the exercise of a power unqualifiedly dictatorial, made by Congress. 3 Statutes at Large, 482, 722, 769. Nor is it known that the competency of such arbitrary legislation was ever questioned. Its civil, its criminal, and its political codes were all alike the subjects of frequent tioned and confirmed; and that Michigan, thus constituted, should take her place as a recognized member of the Union. In the mean time, and without waiting for the action of Congress in the matter, a majority of those delegates determined to carry their new *government [*363 into immediate effect. Elections, therefore, were holden, thinly attended, to be sure, but they were holden, and a nominal governor and Legislature were declared to be duly elected. In the month of November, 1835, these functionaries were assembled. If Congress were to accede to the demands of the convention, it was expedient that the Legislature should be ready to act; they therefore continued in session during the winter. In this period of uncertainty and solicitude, they prudently avoided definitive action in all very important matters; but having a due regard to the importance of an outward show of confidence in their position. they busied themselves in passing acts for lay ing out new roads, organizing new townships, | rested alone in Congress, then Michigan, with creating new corporations, and in operations dimensions totally variant, became an independlike those. It was at this period that they amused themselves by settling the details of the law to incorporate the defendants in error, the validity of which is now brought into question. In the mean time, were the demands of the convention acceded to? Far from it! Considering the admission of new States, and by consequence the adjustment of their boundaries as political matters altogether referable to itself, the Congress deemed it proper to exercise its own judgment upon them; and having regard to its own construction of the Constitution of the United States, and of the obligation and meaning of the articles of compact of 1787, rejected, wrongfully, perhaps, but rejected, the demands of the Michigan convention. What remained to be done? Why, if the politicians of Michigan had no right to cast off the government Congress had prescribed for them at pleasure, and erect themselves into an independent and sovereign community, nothing remained for them but to submit, with what grace they might, to the authoritative decision that their movements were not sanctioned, and that their acts were without authority. To continue, in short, as they had continued, under the territorial government of the United States, until, moved by its own sense of right, policy, and justice, Congress should choose to admit the territory into the Union as an independent State, with such dimensions and boundaries as it might prescribe. ent State and member of the Union on the 26th The right of the United States to the "Western posts" accrued from the Treaty of 1783. They were not delivered until 1796. Shall that delivery have relation to the period when the right accrued? What, then, will become of the contracts made, the rights accrued, the descents cast, judgments rendered in the interim? Are all void, and those who exercised authority trespassers by relation? and purposes of that device that it should be so applied. Butler & Baker's case, 3 Co. 29. The explicit declaration of Congress can hardly be carried back by relation. Relation is one of those fictitious devices in the law which never shall be permitted to work a wrong to strangers (3 Caines' Rep. 261; 4 The State boundaries, as the same are pre-Johns. 230); and it illy accords with the nature scribed by the Legislative Council by its act calling the convention (of January 26, 1835), as well as those adopted by convention, comprise a strip of country several miles in breadth, extending along the whole base of the peninsula. It comprehends towns, villages, and cities. It contains a country of unsurpassed beauty. It contains points having commercial advantages unequalled, except by those of Buffalo, by any throughout the whole region of the Northwest. That strip of country Congress has annexed to Ohio and Indiana respectively. On the other side, Congress has deemed it proper to add an extensive region, having an area of land and 364*] water far greater than is contained in the whole of the peninsula! And thus changed in her geographical position, dimensions, and people, too, thousands of those who assisted in forming her organic law having been cut off on one side, and unknown numbers of such as did not so participate added on the other, with her identity gone, but with her name preserved, the new State is declared by Congress, on the 26th of January, 1837, to be admitted as one of the States of the Union. 5 Statutes at Large, 144. * If the people of Michigan, through the means of its convention and the Legislative Council accorded to them by Congress, had the right to throw off the laws of the United States, organizing its government at pleasure, and erect themselves into an independent government, then Michigan, with the dimensions her convention prescribed for her, became an independent State in November, 1835. In the case of Owings v. Speed et al. 5 Wheat. 420; 4 Cond. Rep. 714, it became proper to decide when the present national *gov- [*365 ernment took the place of that of the confederation. This court on that occasion say, that "both governments could not be understood to exist at the same time; the new government did not commence until the old one had expired." Referring, then, to the action of other departments of government-to journals, records, official reports, and to contemporaneous history-the court determines that the old Congress continued until November, 1788; the old government potentially until March 2, 1789; and that the new government then commenced. Although it is not admitted, especially in view of the clauses in the Constitution referred to, that any other than the Legislative Department of the government can control, or in the smallest degree affect, the action of Congress in this matter, yet it is with much satisfaction that reference is made to the clear and admirably expressed views which were taken on this subject by the Executive Department of this government; I allude to a communication from the State Department of the Sth of October, 1835, and to be found in House Doc. No. 7 of the First Sess. 24th Congress, pp. 92, 93. From the views thus presented to the court, it will have appeared very manifestly that the validity of the act incorporating the defendants If the sovereign power of legislating for that in error must necessarily have been brought territory, and of admitting it as a new State,' into question on the score of its repugnancy to the Constitution and laws of the United States. | court below objected, not that this statute of At the threshold of their case it was incumbent the State of Michigan was repugnant to the Conupon them to establish their right to sue by the stitution, laws, or treaties of the United States, name they assumed. This could be done only but that it was not a law of a State. It was by showing a valid act of incorporation. The the existence of the State that passed the law decision of the State court was in favor of the which was denied, and not the authority or validity of that act, and thus the case is brought power of a State to enact such a law. The obwithin the words, and the spirit, too, of the jection was, that the act produced had not the twenty-fifth section of the Judiciary Act. sanction or authority of a law of a State, and not that, being a statute of a State, it was repugnant to the laws, etc., of the United States. Certainly this is not within the second clause of section 25. If the Legislature of a State should pass any act violating the Constitution or the laws of the United States, this court would pronounce such act to be void; and that, in passing it, such Legislature had transcended those limits, which all the States, by the Constitution of the United States, had prescribed for it; that in respect to such excess of authority, the Legislature was as no Legislature, and its proceeding coram non judice. If the positions assumed in this case be warranted by the Constitution of the United States, can the court fail to pronounce a similar judgment? Mr. Hand, for the defendants in error. That part of Mr. Hand's argument which related to the question of jurisdiction was as follows: This cause comes into this court from the Supreme Court of the State of Michigan, to which court it had been carried by a writ of error from the Circuit Court of said State for the County of Wayne. It was an action of ejectment for a lot in the city of Detroit. The defendants pleaded the general issue; verdict and judgment for the plaintiffs, the present defendants in error. 366*] Mark what is explicitly required by the clause to give the court jurisdiction. First, there must be a statute of a State. Second, the authority of such statute must be drawn in question on the ground that it is repugnant to the Constitution, etc., of the United States. To anything but a statute of a State, or to any objection to such statute but that of repugnancy to the Constitution, etc., of the United States, the clause does not apply. The Act of the 26th March, 1836, incorporating The Detroit Young Men's Society, was or was not a statute of a State. If it was not a statute of a State, then by no possibility could the second clause of section 25 have any bearing upon it. If it was a statute of a *State, [*367 then Michigan at the time of its enactment was a State, and the only objection made at the trial, to wit, that Michigan was not at the time of the enactment of said act a State, is summarily disposed of. Again, if said act was a statute of the State of Michigan, then at the trial in the court below its validity was or was not questioned on the ground of its being repugnant to the Constitution, treaties, or laws of the United States. If its validity was not questioned on that ground, then it is not within the provisions of section 25. If its validity was questioned on that ground, then it is within said section. But the validity of said act was not questioned on the ground that said statute was repugnant to the Constitution, treaties, or laws of the United States; therefore this court has no jurisdiction, by virtue of the matters premised. It may be remarked, that the term "repugnant" is a technical term, of a peculiar, ascertained, and known signification, which signification it bears as it occurs in section 25 of the Judiciary Act. A Statute is repugnant to the Constitution, treaties, or laws of the United States, when its subject matter, terms, and provisions are op posed to, and inconsistent with, the subject inatter, terms, and provisions of such constitutions, treaties, or laws, so that they cannot both stand together. Said act (section 1) incorporates the defendants, "for the purpose of moral and intellectual improvement." It confers a *At the trial, numerous exceptions were taken by the defendants, and a bill containing said exceptions, duly sealed, which bill of exceptions is embodied in the record, sent up to this court. The Supreme Court of the State affirmed the judgment of the Circuit Court for the County of Wayne. The defendants in error allege and insist that there is nothing upon the record sent up whereby this court can enter tain jurisdiction in this cause; which it is believed can be conclusively shown. By reference to the abstract of the cause presented by the de- | fendants in error, and the record in this cause, it will appear that at the trial of this cause the lefendants in error, the Detroit Young Men's Society, claimed to have been incorporated by an Act of the Legislature of the State of Michigan, approved March 26th, 1836, entitled, "An Act to incorporate the members of the Detroit Young Men's Society." Session Laws of Mich- | igan, 1836, page 165. To the admission of this act in evidence, the plaintiffs in error (then defendants) objected, denying the existence of the State of Michigan at the date of the law, and thus denying the valid existence of the act of incorporation itself. The court overruled the objection, and the party excepted. The sub-common name, a common seal, perpetual sucject matter of said exception does not come within the provisions of section 25, ch. 20, of the Judiciary Act of 1789. An attempt may be made to bring it under the second clause of said section. Under that clause, there must be "drawn in question the validity of a statute of, or authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States." Here was produced an act of the Legislature of the State of Michigan. The defendants in the cession, capacity to sue and be sued, and the right to acquire and hold property to the amount of $25,000. Section fifth reserves to the Legislature a right to alter, amend, or repeal the said act, by a two thirds vote. Such are the simple and ordinary powers and franchises conferred by said act. The utmost captiousness could find nothing in it in the smallest degree repugnant to the Constitution, treaties, or laws of the United States. The exception taken-that Michigan was not |