An objection to the validity of a statute founded upon the
ground that the legislature which passed it was not competent or
duly organized under acts of Congress and the Constitution so as to
pass valid statutes is not within the cases enumerated in the
twenty-fifth section of the Judiciary Act, and therefore this Court
has no jurisdiction over the subject.
In order to give this Court jurisdiction, the statute the
validity of which is drawn in question must be passed by a state, a
member of the Union, and a public body owing obedience and
conformity to its constitution and laws.
If public bodies not duly organized or admitted into the Union
undertake, as states, to pass laws which might encroach on the
Union or its granted powers, such conduct would have to be reached
either by the power Of the Union to put down insurrections or by
the ordinary penal laws of the states or territories within which
these bodies are situated and acting.
But their measures are not examinable by this Court on a writ of
error. They are not a state, and cannot pass statutes within the
meaning of the Judiciary Act.
This was an ejectment brought in the Circuit Court for the
County of Wayne, State of Michigan (state court) by the Detroit
Young Men's Society against the plaintiffs in error to recover lot
No. 56, in section one, in the City of Detroit.
On the trial of the cause in December, 1841, the plaintiffs
below offered in evidence:
Page 46 U. S. 344
1. An act of incorporation by the Legislature of the State of
Michigan, passed 26 March, 1836, entitled "An act to incorporate
the members of the Detroit Young Men's Society." To the admission
of this act in evidence the defendants objected, but the court
overruled the objection and allowed it to be read to the jury,
whereupon the defendants excepted.
2. A deed bearing date 1 July, 1836, executed by Solomon Sibley,
judge, George Morell, and Ross Wilkins, judge, purporting to convey
lot No. 56 to the Detroit Young Men's Society, the plaintiffs
having first proved, by the witnesses to the deed, that on or
before that day, the said Sibley, Morell, and Wilkins were reputed
to be, and acted as, judges of the Territory of Michigan appointed
by the authority of the United States.
The Act of Congress under which they acted was that of 21 April,
1806, ch. 43, 2 Stat. 398.
To the admission of this deed as evidence the defendants
objected upon five grounds. But the court overruled the objections
and allowed the instrument to be read to the jury, whereupon the
defendants excepted.
The defendants then offered in evidence the following:
1. A deed from the Treasurer of the County of Wayne to John
Scott dated 10 October, 1833, conveying the title for taxes, which
deed the court refused to permit to be read in evidence unless it
were first shown that the title had passed out of the United States
and that the same had been regularly assessed and returned, to
which refusal of the court the defendants excepted.
2. A resolution of the Governor and judges of the Territory of
Michigan dated 8 September, 1806, that the basis of the town should
be an equilateral triangle having every angle bisected by a
perpendicular line on the opposite side, and then proved, by a
mathematical calculation, that lot No. 56 was the same as that
which was known as lot No. 52 prior to 27 April, 1807, and then
offered a resolution of the governor and judges dated 13 March,
1807, conveying said lot No. 52 to Elijah Brush.
To all which evidence the plaintiff objected, and the court
sustained the objection, whereupon the defendants excepted.
The defendants then offered a witness to prove that he had
applied to the governor and judges for information as to what lots
were taxable, and that they had informed him that the lot in
question was taxable in 1828, to the admission of which evidence
the plaintiff objected, and the court sustained the objection,
whereupon the defendants excepted.
The defendants further offered parol evidence relative to the
conduct and declarations of the governor and judges, to which the
plaintiff objected, and the court sustained the objection,
whereupon the defendants excepted.
And on the trial of said issue, it further appeared in
evidence
Page 46 U. S. 345
from the records of the Secretary of State that a Legislature of
the State of Michigan, duly elected and returned, was organized and
duly qualified under the Constitution of said state on the third
day of November, A.D., 1835, and that Stevens T. Mason, having been
duly elected and returned, was on the same day duly qualified and
took upon himself the execution of the office of governor under the
Constitution of the said State of Michigan; that the aforesaid act,
entitled "An act to incorporate the members of the Detroit Young
Men's Society," was approved by the said Stevens T. Mason on 26
March in the year 1836, and who was at that time governor, acting
under the Constitution of the State of Michigan; that John S.
Horner was Secretary of the late Territory of Michigan, and in the
month of July, 1835, acted as governor of said territory; that he
was the last person who exercised the functions of Territorial
Governor of the Territory of Michigan; that the last official act
of said Horner, as Governor of the Territory of Michigan, in the
office of the Secretary of State is a proclamation, dated in the
month of July in the year 1835, but by reputation it appeared that
the said Horner purported to act as Territorial Governor of
Michigan until some time in the year 1836. It further appeared by
the records produced by the late Clerk of the late Supreme Court of
the Territory of Michigan that a session of said court purported to
have been holden by George Morell and Ross Wilkins, as territorial
judges, in the month of June, 1836, and adjourned the 30th of said
month. And it further appeared on the trial of said issue that
Solomon Sibley, George Morell, and Ross Wilkins purported to act as
judges of the Territory of Michigan on 1 July in the year 1836. And
on the trial of said issue, the defendants offered a witness, who
was present at the time, to prove to the jury that Solomon Sibley
and Ross Wilkins, acting as judges of the Territory of Michigan,
held a session of the supreme court of said territory on the first
Monday of January in the year 1837, and of which the clerk of said
supreme court made no record, to the admission of which the
plaintiff, by his attorney, objected, and the court sustained the
objection and rejected said evidence, and the defendants, by their
attorney, duly excepted thereto.
And the testimony on both sides being closed and commented upon,
and the said court being about to charge the said jury and to
commit to them the said cause, the said defendants, by their
attorney, moved the said court and requested it to charge the said
jury in the words or effect following, to-wit:
"First. That the act herein before mentioned, entitled, 'An act
to incorporate the members of the Detroit Young Men's Society,' was
not of force, or in any wise sufficient in the law to create and
constitute of the lessors of the plaintiff a corporation or body
politic, in the law, capable to take or hold said lot or premises,
nor the title thereof, nor to exercise any corporate rights or
powers in virtue
Page 46 U. S. 346
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 after 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 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 and 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 21, 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 26 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 government cannot coexist
in any of their respective departments; that if the lessors of the
plaintiff were well incorporated, and competent in virtue of said
act of incorporation of the Legislature of the State of Michigan to
take and hold the lot or premises in question, then the territorial
government of the Territory of Michigan was, at the date of said
paper, writing, or deed, under which the lessors of the plaintiff
claim title,
Page 46 U. S. 347
abrogated and at an end, and the governor and judges of said
territory had no legal existence, and said deed is therefore void,
and can convey no title in any event; therefore the plaintiff
cannot recover."
"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 1 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
charge of the court the defendants excepted."
The supreme court of Michigan, in March, 1843, affirmed the
judgment of the court below, 1 Doug. 119, and the cause was brought
before this Court by a writ of error issued under the twenty-fifth
section of the Judiciary Act.
Page 46 U. S. 374
MR. JUSTICE WOODBURY delivered the opinion of the Court.
I am instructed by the court to say its opinion in this case is
that it possesses to jurisdiction over the questions submitted. 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 reexamined
here.
Barclay v. Russel, 3 Ves. 429;
The Nabob of
Arcot's Case, 2 Bro.Ch. 6;
Foster
v. Neilson, 2 Pet. 309;
The
Cherokee Nation v. Georgia, 5 Pet. 20;
Rhode Island v.
Massachusetts, 12 Pet. 730,
37 U. S. 736,
37 U. S. 738;
Garcia v.
Lee, 12 Pet. 517-518.
And it is argued that the acknowledgment of a domestic state is
like the recognition of the independence or existence of a foreign
state, and the latter is well known to preclude any further inquiry
by the judicial tribunals into the fact of their due organization.
See on this
30 U. S. 5 Pet.
50,
30 U. S. 59;
6 U. S. 2 Cranch
241;
16 U. S. 3
Wheat. 634;
17 U. S. 4 Wheat.
64.
It is further contended, that if a state be recognized or
admitted into the Union under a particular form of government or
Constitution, this, of necessity, implies that such organic
arrangement is to be treated as valid from its creation, and the
previous legislation under it is to be considered as done or
performed by a competent authority.
But we do not find it a duty to decide any of these delicate and
important questions, considering the situation of the record in
this action and the preliminary points which arise on it, and which
must first be disposed of.
This being a writ of error to a state court, sued out with a
view to reverse its decision in a case of ejectment between these
parties, the only authority and the only ground for our
interference with the decisions of the state tribunals is, in
substance, that they have overruled some right or defense set up
under an act of Congress, or treaty, or Constitution of the United
States.
39 U. S. 14 Pet.
46,
39 U. S. 353;
37 U. S. 12 Pet. 66;
Williams v.
Norris, 12 Wheat. 124.
The principle under which the Judiciary Act of 1789 allows this
interference of ours in the relations between the two
governments,
Page 46 U. S. 375
always of so sensitive and responsible a character, is that no
government can be efficient or just without the means of
self-protection, and hence that those who act under it or claim
rights beneath the shield of its laws should, within its own
territory, be able to appeal to its own tribunals for relief
whenever their claims under it are decided against in the courts of
the states. But prejudices here are to be guarded against as well
as there; and hence the paramount rule of construction, in all
cases of this kind, ought to be, not to interfere at all unless the
decision is shown to come clearly within the letter and spirit of
the act of Congress permitting an appeal; and, when interfering,
not to overrule the judgment of the state court unless clearly
erroneous.
Firstly, then, is there a proper case presented here for our
interference at all? Three instances are enumerated in the
Judiciary Act, in which a writ of error lies to a state court,
e.g.,
"(1) Where is drawn in question the validity of a treaty or
statute of, or an authority exercised under, the United States, and
the decision is against their validity; (2) or where is 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, and the
decision is in favor of such their validity; (3) or where is drawn
in question the construction of any clause of the Constitution, or
of a treaty or statute of, or commission held under, the United
States, and the decision is against the title, right, privilege or
exemption specially set up or claimed by either party under such
clause of said Constitution, treaty, statute, or commission."
1 Stat. 85, § 25.
A claim is made to sustain this writ and our jurisdiction under
the first specification because an authority was set up by the
original plaintiffs that the deed to the Young Men's Society was
good under the acts of Congress, and this was excepted to by the
defendant. But that cannot be made the subject of a writ of error,
because the state court decided in favor of its validity.
Gordon v.
Caldcleugh, 3 Cranch 268;
Walker v.
Taylor, 5 How. 64.
Another decision, which was made by the state court against the
right set up by the original defendant under acts of Congress in
respect to his title, is attempted to be made a subject for
reexamination under this writ. But it cannot be, for two reasons.
One is it does not appear what acts of Congress are referred to,
and the other is the probability, on the face of the record, not
that such acts were decided against, but only that the evidence
adduced in relation to the right set up under them was overruled.
Consequently, nothing remains under which to claim jurisdiction,
except the second specification in the Judiciary Act. It is
contended that the objection, which was made in this case to the
validity of a statute of the state, on the ground that the
legislature were not competent or duly organized, under acts of
Congress and the Constitution,
Page 46 U. S. 376
so as to pass valid statutes, and which was overruled, comes
within that specification.
The first difficulty interposed against this point is that the
plaintiffs in error do not in the record specify what parts of the
Constitution or act of Congress they consider to have been
overruled by the state court, nor in terms that any parts of either
were so overruled. The course pursued here is a looser mode of
stating exceptions than is customary, and could hardly be sustained
if it did not appear on the record that the competency of the
Legislature of the State of Michigan to pass certain laws was in
fact called directly in question, and the validity of them
contested, on the ground that, when the laws passed, the
territorial government over Michigan was still in force, and the
new state government had not been duly organized. And it seems to
have been admitted on both sides that this objection was urged --
and it is difficult to conjecture any other ground for such an
objection to the competency and power of the new state government,
unless founded on its nonconformity to the existing acts of
Congress as to the territory, and the clause in the Constitution
for the admission of new states. The argument was a fair one, that,
as the territorial government was still in operation in Michigan
for some purposes, no new political organization could take place
within its limits which was capable of passing valid laws or
charters of incorporation, without a previous sanction by Congress,
under the third article of the Constitution.
There probably is enough in this record to show that such
questions were raised, and that the state court decided against the
validity of the objection, and under this view and the authorities
of the following cases we shall then treat this exception as
sufficiently set out in the record.
Conns v.
Gallager, 15 Pet. 18;
Williams
v. Norris, 12 Wheat. 117;
McBride v.
Hoey, 11 Pet. 167;
Crowell v.
Randell, 10 Pet. 368;
McKinney
v. Carroll, 12 Pet. 70;
30 U. S. 5 Pet.
248.
But the exception, if well stated, applies to nothing except the
validity of the particular statute that incorporated the Young
Men's Society, under which Jones, the original plaintiff, claims.
Nor does it question the validity of that statute on account either
of its terms or subject matter, but the inability or incompetency
of its makers as a political body to pass any statute whatever. Now
to ascertain whether such an objection can come within the true
meaning of the Judiciary Act, it will be necessary to look at the
language as well as obvious design of the latter in conferring this
searching and overshadowing power of revision over the state
tribunals. As before suggested, it was to prevent partiality in
them against the authority and agents of the general government; to
hold the protecting supervision in respect to its own Constitution,
treaties, and acts of Congress, for purposes of self-preservation
and self-defense, and finally to insure uniformity in the
construction and operation of them over the whole Union.
Page 46 U. S. 377
Hence, two things must unite, in order to justify it. 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.
This seems to have been settled by this Court as to the meaning of
the word "state," where empowering one to bring an action. It must
be a member of the Union.
Cherokee Nation v.
Georgia, 5 Pet. 18. And it is not enough for it to
be an organized political body within the limits of the Union.
In conformity with this, where it is required that a party
should be a citizen of a different "state" in order to give a
circuit court jurisdiction, it has been held it is not sufficient
to be a citizen of the District of Columbia,
Hartshorn v.
Wright, Pet.C.C. 64;
Hepburn v.
Ellzey, 2 Cranch 445, or citizen of a territory,
New Orleans v.
Winter, 1 Wheat. 90, but the party must belong to a
state in the Union, one of the members of the confederacy. Chief
Justice Marshall, in
Hepburn v. Ellzey.
Indeed, it has been settled also, that a law passed by Virginia,
before the government of the Union took effect, cannot be examined
and decided upon under this clause of the Judiciary Act.
Owings v.
Speed, 5 Wheat. 420.
The words of this clause also appear to be such, as to admit of
no other construction than that the statute is a measure by a body
confessedly a state. They are -- "where is drawn in question the
validity of a statute of, or authority exercised under, any state,"
&c.
Besides this apparent recognition, that nothing is to be
examined which does not apply to what is contained in a statute,
and that passed by a state, the evil to be remedied and guarded
against was connected merely with the subject matter of statutes,
and not with the political competency of their makers.
The fears were, from the reasons just enumerated, that through
some inadvertence, if not design, a state might legislate against
some part of the Constitution, or a treaty, or an act of Congress,
and might trench upon matters not within its province nor belonging
to its internal concerns, but belonging to Congress, and which, by
express terms or necessary implication, were forbidden to be acted
on by the state governments.
Such being the evil or danger, it precludes the idea that this
clause in the Judiciary Act had any reference to the fact, that
public bodies which had not been duly organized, and not been
admitted into the Union, would, as states, undertake to pass laws,
without being empowered to do it, which might encroach on the Union
or its granted powers, and hence should be thus guarded against.
Such conduct by such bodies, if not situated within the Territory
of the Union, would be a foreign affair, and not within the
cognizance of any of the departments of this government, unless so
interfering
Page 46 U. S. 378
with its rights as to call for the political exercise of the
executive and legislative authority over our foreign relations.
Again, such conduct by bodies situated within our limits, unless
by states duly admitted into the Union, would have to be reached
either by the power of the Union to put down insurrections, or by
the ordinary penal laws of the states or territories within which
these bodies unlawfully organized are situated and acting. While in
that condition, their measures are not examinable at all by a writ
of error to this Court, as not being statutes by a state, or a
member of the Union. 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. And if so, we must inquire only into
the validity of their subject matter, and not as to the new, any
more than the old, states, ever suppose that the question of their
political competency or power to pass statutes at all was an
inquiry intended to be placed under our consideration and decision
by the twenty-fifth section of the Judiciary Act.
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 reenacted or
adopted after becoming a state,
44 U. S. 3 How.
482; then it is treated like the statute of any state; or the
admission of the state into the Union by Congress, subsequently
with the Constitution and political organization under which the
statute was passed, must bring it under our consideration as a
statute passed by the state -- a competent state -- leaving, an in
other cases, merely its subject matter to be examined in order to
see if it violates or not any acts or provisions of the general
government.
The question of their competency is not, however, thus made a
closed one, but may be discussed before the proper political
tribunals. And where, under particular laws, their competency is
not conceded, it may come under the consideration and decision of
the state courts, and probably of those of the United States. All
we decide in this instance is that it is not one of the grounds for
our reexamination of decisions on it, under the Judiciary Act. And
it is no more objectionable to shut out such a question from
revision in that way, than numerous others which are not included
either in the words or objects of that act. Indeed there were, and
still are, some of the highest motives of expediency and sound
public policy not to entangle this Court with the reconsideration
in this way of a matter so purely political and often so full of
party agitation. It is pretty
Page 46 U. S. 379
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
case of
Owings v.
Speed, 5 Wheat. 421, before cited, comes nearest to
this. Taking it for granted, then, we have shown that the revision
in a case like this must be of a "statute" and a statute of a
"state," and not of a territory, or corporation, college, or
unacknowledged political body, and considering these as
concessions, or admitted data, before the jurisdiction arises to
issue a writ of error, and look into the subject matter of such
statute in order to ascertain whether in its terms or operation it
runs counter to the powers of the general government, and that it
is acknowledged on both sides there is nothing exceptionable in the
subject matter of this statute, it follows that there is nothing to
revise or correct, which is within the purview of the judicial
functions of the general government under the Judiciary Act.
Let the writ of error be
Dismissed for want of jurisdiction.
MR. JUSTICE McLEAN.
I think there is jurisdiction in this case. The Detroit Young
Men's Society, in their corporate capacity, brought an action of
ejectment against Scott and Boland to recover possession of the lot
in question.
The deed under which the lessors of the plaintiff claimed was
dated 1 July, 1836, and was signed by three judges of the Territory
of Michigan. In making the conveyance, the judges acted under a law
of Congress of 21 April, 1806. As regards this question, it is not
important to examine the execution of this trust.
On the trial it was proved
"that a Legislature of the State of Michigan, duly elected and
returned, was organized and duly qualified under the Constitution
of the State of Michigan on 3 November, 1835; and that Stevens T.
Mason having been duly elected and returned, was on the same day
qualified as governor &c. That the act entitled 'An act to
incorporate the members of the Detroit Young Men's Society' was
approved 26 March, 1836."
It was proved by reputation that John S. Horner purported to act
as Territorial Governor of Michigan until some time in the year
1836, and that George Morell and Ross Wilkins acted as judges until
June of that year. That a session of the territorial court was held
on the first Monday of January, 1837.
The State of Michigan was admitted into the Union by the act of
26 January, 1837.
On the trial, the counsel moved the court to instruct the jury,
that the act "to incorporate the members of the Detroit Young
Page 46 U. S. 380
Men's Society" was not of binding force,
"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."
The twenty-fifth section of the Judiciary Act of 1789
provides
"That a final judgment or decree in any suit, in the highest
court of law or equity of a state in which a decision in the suit
could be had, where is drawn in question . . . the validity of a
statute of, or an authority exercised under, any state, on the
ground of their being repugnant to the Constitution, treaties, or
laws of the United States, and the decision is in favor of such
their validity"
may be reexamined in this Court by a writ of error.
This act of incorporation was given in evidence, as a part of
the plaintiff's title, and on the validity of the act his right to
a recovery depended. The deed having been made to the lessors of
the plaintiff as corporators, they could recover only in that
capacity. The validity of this statute was questioned, as appears
from the record, on the ground that it was passed before the state
was admitted into the Union, and the court held that the statute
was valid. By the Constitution, Congress has power to admit into
the Union "new states." The time of admission is a question of law,
and not a political question. At the present term, we have had
occasion to decide the date of the admission into the Union of the
States of Florida and Iowa.
The above facts present the very case provided by the statute
for the exercise of jurisdiction by this Court. A right was set up
under the statute of a state, and that statute was alleged to be
repugnant to the Constitution and laws of the United States, and
the decision of the state court was in favor of the validity of
such statute. No case, it would seem, could arise, more completely
within the letter and spirit of the twenty-fifth section.
It is said that the act upon its face does not purport to be
repugnant to the Constitution or laws of the United States. If this
be admitted, it by no means follows that the act is constitutional.
Whether constitutional or not must be determined by the effect of
the act. But in my judgment this act is repugnant to the
Constitution and laws of the Union.
Michigan was an organized territory of the United States. Its
governor, judges, and all other territorial officers were in the
discharge of their various functions. The sovereignty of the Union
extended to it. Under these circumstances, the people of Michigan
assembled by delegates in convention and adopted a Constitution,
and under it elected members of both branches of their legislature,
governor, and judges, and organized the state government. No
serious objection need be made, in my judgment, to the assemblage
of the people in convention to form a Constitution, although it is
the more regular and customary mode to proceed under the sanction
of
Page 46 U. S. 381
an act of Congress. But until the state shall be admitted into
the Union by act of Congress, the territorial government remains
unimpaired.
No act of the people of a territory, without the sanction of
Congress, can change the territorial into a state government. The
Constitution requires the assent of Congress for the admission of a
state into the Union, and "the United States guarantee to every
state in the Union a republican form of government." Hence the
necessity, in admitting a state, for Congress to examine its
Constitution.
The act "to incorporate the members of the Detroit Young Men's
Society," was the exercise of sovereign power -- a power totally
repugnant to the sovereignty of the Union, in its territorial form.
Until 26 January, 1837, Michigan was not admitted into the Union
and recognized as a state. Whatever effect this admission may have,
by way of relation, on the exercise of the political powers of the
state prior to that time, is not now a question. The question of
jurisdiction relates to the time the act was passed, and its
validity.
This act of incorporation was repugnant to the Constitution of
the United States, under which the territorial government was
organized. It was repugnant to the laws of Congress which formed
that organization. It was an exercise of sovereignty incompatible
with the sovereignty of the Union, in all its legal forms. And this
act was declared by the supreme court of Michigan to be valid. I
cannot conceive of a clearer case for jurisdiction.
In
Holmes v.
Jennison, 14 Pet. 540, the governor, in the
exercise of a supposed power in the state, directed a fugitive from
justice claimed by the Canadian government to be delivered up, and
the supreme court of that state, having brought the accused before
it by a habeas corpus, remanded him to custody. This Court, under
the twenty-fifth section, took jurisdiction of the case on the
ground, in the language of the Chief Justice, "that the exercise of
the power in question by the states is totally contradictory and
repugnant to the power granted to the United States." And again he
says
"All the powers which relate to our foreign intercourse are
confided to the general government. . . . If there was no
prohibition to the states, yet the exercise of such a power on
their part is inconsistent with the power upon the same subject
conferred on the United States."
Now in the case of Holmes, there was no power to surrender the
fugitive in the federal government, as such power was not conferred
by the laws of nations, but must be given by a treaty or by
reciprocal legislation. Still, as the foreign intercourse was
vested in the general government, no part of it could be exercised
by the states without conflicting with the federal power. Now the
conflict of power, in the case under consideration, is clear and
direct.
Page 46 U. S. 382
The two sovereignties of the state and the territorial
government cannot exist at the same time within the same limits.
The territorial government exists in full vigor until it is
abolished by the admission of the state. There was, then, a direct
and irreconcilable repugnance in the exercise of the sovereign
power by the state, so long as the federal authority was exercised
in the territory.
MR. JUSTICE WAYNE concurred that this Court had not jurisdiction
in this case, but did not assent to any conclusions in the opinion
on the merits in this controversy involving the political relations
of Michigan with the United States before Michigan was admitted
into the Union.
MR. JUSTICE NELSON concurred with the opinion of MR. JUSTICE
McLEAN.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Michigan and was argued by
counsel. On consideration whereof it is now here ordered and
adjudged by this Court that this cause be and the same is hereby
dismissed for the want of jurisdiction.
