Levi Woodbury

“ 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? ”

“ 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 opposed to, and inconsistent with, the subject-matter, terms, and provisions of such constitutions, treaties, or laws, so that they cannot both stand together. ”

“ There must be an act of solemnity and importance, such as a statute, and that statute must be by a State, a member of the Union and a public body, owing obedience and conformity to its constitution and laws. ”

“ 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 admits the truth not only of what prim a 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. ”

“ No other point is decided by us, though others of much interest are involved in the merits respecting the due organization of States, under our political system, and the effect which their admission into the Union by Congress has on the validity of their previous proceedings.
Some contend, that when these matters properly arise in a cause, they are mere political questions,-to be settled by the action of the other departments of the government, and not to be re examined here. ”

“ It is pretty strong evidence that this view of the Judiciary Act, and our duties under it, must be the correct one, when, on full examination of the precedents, no case can be found where an objection of this character to a statute of a State has ever been sustained, or deemed even a proper ground for exception below, and afterwards brought under the revision of this court by a writ of error. ”

“ The act of incorporation is the hinge upon which the whole controversy turns. It will be considered as properly before this court for examination, and the objections to its admission as evidence will be reserved for discussion hereafter. At present, I am getting rid of superfluous matter.
2. The deed from the judges was also objected to in the State court. But that objection can find no place here. The Judiciary Act is very explicit in conferring upon this court an appellate power only where a State court decides against the validity of an authority exercised under the United States. ”

“ The State boundaries, as the same are prescribed 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. ”

“ And after such bodies are recognized as having been duly organized, and are admitted into the Union, if they ever be, the judicial tribunals of the general government, which acquiesces in the political organization that has been professing to pass statutes, and which admits it as a legal and competent State, must treat its statutes passed under that organization as they would the statutes of any other State, within the meaning and spirit of the Judiciary Act. ”

“ If the act to be done be a public act, and merely ministerial, a majority, as a general rule, may be competent to perform it.
If it be a public act, but yet one requiring the exercise of discretion, deliberation, and judgment, and not merely ministerial, all the trustees should be present, that they may respectively 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. ”

“ 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 provided for in the first section-can be of any validity, unless concurred in and executed by all the members of the board. ”

“ Now, the lot in dispute is not a part of the 10,000, but is in nearly the middle of the 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. ”

“ 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. ”

“ 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 ”

“ Plaintiffs 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. ”

“ 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 domiciles rest upon the action of this government. Besides, the public domain, too, constitutes one of the sources of the revenue of the nation, and its uniform construction should not be less rigorously enforced. I have not been able to discover that the decision in Mathews v. ”

“ In these acts of Congress, and especially that of June 23, 1836, the proceedings of the people of Michigan are spoken of as valid. The constitution is mentioned as one 'which the people have formed,' and propositions are submitted to the 'legislature of the State of Michigan,' &c., &c. ”

“ The act has subserved its purpose, and has become extinct; and whatsoever has followed in no wise rests on a foundation so frail. The delegates invoked assembled in May, 1835. They devised the form of a constitution and State government. They defined the boundaries within which it should extend. They demanded of Congress, in proper and set phrase, that their proceedings should be sanctioned and confirmed; and that Michigan, thus constituted, should take her place as a recognized member of the Union. ”

“ Those which are cognizable by this court are only a repetition, in different phraseology, of the same question, viz. whether or not there was in Michigan, at the time of passing the act of incorporation, a legislature capable of enacting valid laws. ”

“ It follows, then, that a statute, passed by a political body before its admission into the Union, seems either not to be one, under the cognizance of the Union or its judicial tribunals, by means of § 25 of the Judiciary Act, unless re enacted or adopted after becoming a State (3 How., 482) ; then it is treated like the statute of any State ”