Scott v. Detroit Young Men's Society's Lessee

1 Doug. 119 | Mich. | 1843

Ransom, J.

delivered the opinion of the Court.

This case presents two very important questions for our determination; — the first, involving the validity of the acts of our state government, and, in fact, the very existence of such government, prior to the admission of the state into the Union by Congress, January 26, 1837; — the second, involving the validity of the acts of the Governor and Judges of the Territory of Michigan, between the time of the organization of the government of the state, and her admission into the Union, while in the exercise of the powers conferred upon them by the “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, 1806. The case also presents several other questions of minor importance, which will receive our consideration.

1. We shall first inquire whether Michigan was a State, with a constitution, and a government organized under it, possessing the sovereign power of state legislation, over the people within her limits, on the 26th day of March, 1836. If not, then the “Act to incorporate the Detroit Young Men’s Society,” passed by a body claiming to be the Legislature of such state, and approved by Stevens T. Mason as governor of such state, on the day last mentioned, was a nullity. It gave no vitality or powers to the defendants, as a corporation. They had no power to take and hold the real estate in question, or to sue for its recovery; and the Court below erred,,in permitting the act to be read in evidence to the jury, and in charging the jury, that the defendants were well incorporated under it.

The people of the former Territory of Michigan, remained subject to the territorial government established by Congress, until after they had acquired and exercised the right to organize a state government. That right was secured to them, on the happening of a certain future contingency, by the “Ordinance of Congress for the government of the Territory of the United States north-west of the River Ohio,” passed.July 13,1787,, . . ~

Article V. of the Ordinance, provides for the division of the territory north-west of the River Ohio into states; and also that, “whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original states, in all respects whatever; and shall be at liberty to form a permanent constitution and state government.” That the people of this division of the north-west territory, when it was found to contain sixty thousand free inhabitants, had a right to form a permanent constitution and state government, is unquestionable. The right, and the power to form such a constitution and government, was as absolutely and irrevocably vested in, and secured to, the inhabitants of Michigan, by the compact contained in the Ordinance of 1787, between the original states, and the people who then did, and who should thereafter inhabit the several divisions of the territory north-west of the River Ohio, as was the right of free government vested in and secured to, the whole people of the American Union, by the constitution of the United States.^That right could in no way be modified or abridged, or its exercise controlled or restrained, by the general government, or by any other power whatever, unless it was done by the consent of the people themselves.

Although, in the wording of this article of the Ordinance, the “liberty to form a permanent constitution and state government,” follows the grant of the right of such state, to “be admitted, by its delegates, into the Congress of the United States,” yet, it is evident that the formation of the state must, of necessity, precede such admission. The state must exist, before it can have delegates.

To gain admission in fact into Congress, the new state must obtain the assent of that body, — not because she does not possess a positive and unqualified right, under the ordinance, to such admission, on an equal footing with the original states, with her boundaries as defined and agreed to in that instrument, — but, for the sole reason, that the older states represented in Congress, who are the other party to the compact, have the physical power to refuse a compliance with the terms of an agreement, which they have deliberately made; and there is no third party, to which the state, the weaker party, can resort to coerce a fulfilment of the agreement.

No such assent, however, was necessary, to enable the people to convene, at such time and place, and in such manner, as they might determine upon, and erect for themselves a frame of government. The only condition necessarily precedent to the formation of such government, was the existence of sixty thousand free inhabitants within the prescribed limits of the state.

In view of their rights, the people, through their representatives in the legislative council of 1834, adopted measures to take an enumeration of the inhabitants. The enumeration was made; and' it demonstrated that Michigan contained a population of over eighty thousand free inhabitants, and was therefore entitled to form a constitution and state government. Provision was then made for a convention of the people. They assembled, by their delegates, in convention, on the second Monday of May, 1835. On the twenty-fourth day of June, of the same year, a constitution for the government of the state was ordained and established; and, in October following, it was fully ratified and confirmed by the people themselves. The constitution thus adopted, and the government which it established, were “republican, and in conformity to the principles contained in the ordinance” of 1787.

That Michigan contained the requisite number of free inhabitants to entitle her to a constitution and state government, — that the people proceeded regularly in the formation of such constitution and government, — and that they were republican, and in conformity to the principles of the Ordinance of 1787, is not questioned by the plaintiffs’ counsel. It is still contended, however, that Michigan was not a state, until admitted into the Union, and recognized as such by Congress ; but that she, in fact, remained subject to the territorial government prescribed by the laws of Congress, until her admission into the Union, and that all her pretended legislation, as a state, under the constitution she had adopted, was utterly null and void.

There is nothing to be found in the original compact, the Ordinance of 1787, which, in our judgment, favors this construction.

The people of the original states, at the termination of the revolutionary contest, found themselves overwhelmed with a debt, which they were unable to discharge. They were unwilling, and perhaps unable, to be taxed for its payment. For the purpose of providing the means to pay this debt, extensive tracts of land were ceded to the confederation, by Virginia and other states. These lands were an unreclaimed wilderness, peopled only by savages, and consequently unproductive and valueless to the treasury. To induce their settlement and sale, was, therefore, an object of the first importance to the states; and, to effect this object, the terras of the compact contained in the Ordinance of 1787, were proposed. The confederation, in that act, in effect said, to those who should emigrate to either division of the north-west territory, — “ If you will buy, reclaim, and settle our waste lands, and thus replenish our empty treasury, and, at the same time, protect our widely extended north-western frontier from the incursions of the Indians, we will provide for your government, until your number shall reach sixty thousand; and then, you shall be at liberty to form a state government for yourselves, and shall be admitted into our union of states, on an equal footing in all respects with ourselves.”

To this compact, the people who settled in the, now, state of Michigan, became a party, and entitled to insist on the fulfilment of its terms by the general government. When, in 1834, therefore, it was ascertained that the event had transpired, on the happening of which, the right of the people of Michigan to form a constitution and state government, was to vest, they were at liberty, at any time, to avail themselves of that right. The general government no where provided in the compact, that the people should obtain their assent, before they proceeded to form such government. If the people had the power to form a permanent constitution and state government, it follows that they possessed the power to put the various departments of such government into operation.'

If it be said that the constitution and government should have been first submitted to Congress, that it might be adjudged by that body whether they were republican and in conformity to the principles contained in the ordinance, it may be answered, that the confederation reserved to Congress, only the right to determine the character of the constitution, when, after its adoption by the people, application should be made for admission into the Union. If the state constitution so formed should be found to be repugnant, in any of its provisions, to the Ordinance of 1787, or to the constitution of the United States, or to the laws of the United States made in pur» suance thereof, it would, so far forth, be utterly null and void, and be so adjudged by the appropriate tribunals, the courts of justice.

The constitution and government, formed by the people of Michigan, was, then, authorized by the Ordinance of 1787, and it was competent for the people to put such government in operation.

A legislature was duly organized in all its branches, and a governor elected, agreeably to the provisions of the constitution. The “ act to incorporate the Detroit Young Men’s Society,” was passed by the legislature, and approved by the governor, according to the forms prescribed by the constitution. It was admissible in evidence on the trial, and it conferred upon the defendants, among other corporate franchises, the right to purchase, hold, and convey the re'al estate in question, and to sue for its recovery. There was, therefore, no error in the decision of the Court admitting this act to be read in evidence to the jury, or in the instruction of the Court to the jury that the defendants were well incorporated under it.

2. The next inquiry is, whether the Governor and Judges of the Territory of Michigan were in esse, and had power to execute a valid conveyance of the premises in question, on the first day of July, 1836, — the date of the execution of the deed from them to the defendants in error. If not, then the deed was void, and the defendants proved no title to the premises. The plaintiffs in error contend, that if the government of the state of Michigan was established prior to the execution of the deed, then the offices of Governor and Judges of the Territory were thereby abrogated, superseded and annulled.

We have before seen that the Territory north-west of the river Ohio, was organized by the Ordinance of 1787. The third clause of the first section, ordained that there should be appointed from time to time, by Congress, a governor, whose commission should continue in force three years, unless sooner revoked, and that he should reside in the district. The fourth clause of the same section, provided for the appointment of a court, to consist of three judges, who should have a common law jurisdiction, and reside in the district, and continue in commission during good behaviour.

The act of Congress of January 11, 1805, (Story’s Laws U. S. 957,) organized the Territory of Michigan, and established for it a government, the same as that of the Indiana Territory, having like officers, with like powers and duties.

By the act of Congress of April 21, 1806, (2 Story’s Laws U. S. 1025,) the Governor and Judges of the Territory, or any three of them, were authorized to lay out a town, including the old town of Detroit, and 10,000 acres adjacent, (except certain reservations;) and were required to hear, determine, and finally adjust, all claims to lots therein, and give deeds for the same. They were required to donate lots of certain dimensions, to persons whose houses had been burned in the old town of Detroit, June 11, 1805. It was further enacted by § 2, that, after satisfying claims provided for by the preceding section, the land remaining of the said 10,000 acres, should be disposed of by the Governor and Judges aforesaid, at their discretion, to the best advantage; and they were authorized to make deeds to purchasers thereof. They were further required to apply the proceeds of the land so disposed of, towards building a court house and jail in the town of Detroit.

This act originated the land board of the Governor and Judges, from whom have proceeded the titles to lands, (except the military reservations,) in the old town of Detroit, and 10,000 acres adjacent. Under the authority conferred by it, the deed to the Detroit Young Men’s Society, was executed.

Was John S. Horner Governor, and were Sibley, Morell, and Wilkins, Judges of the Territory of Michigan, with competent authority to execute this deed, on the day of its date, July 1, 1836 ?

It appears from the bill of exceptions, that it was proved by parol evidence on the trial, that Horner assumed, and was reputed, to be acting as Governor, and that Sibley, Morell and Wilkins, were reputed to be, and were, acting as Judges of the territory at that time.

An act of Congress, approved August 7,1789, (1 Story’s Laws U. S. 32,) provided, that in all cases, where, by the Ordinance of 1787, officers were required to be appointed by Congress, the President should nominate, and by and with the advice and consent of the Senate, appoint such officers, who should be commissioned by him; and that he should have the same power of renovation and removal, as, by the ordinance, was conferred upon Congress. The appointment of Governor, was for three years, as previously established. Under this act, Horner was appointed Secretary, and became the acting governor of the territory in 1835, and assumed to act as such governor, until after the execution of the deed in question. No evidence was offered to show his removal, or a revocation of his commission. He therefore continued in the office, legally exercising its functions, unless it was abolished by Congress, (which is not contended,) or unless its powers were superseded and abrogated, by the formation of a constitution and state government by the people of Michigan. Whether such was the effect of the formation of the state government, we shall by and by consider.

The Judges of the Territory of Michigan were, by the Ordinance of 1787, to hold their offices during good behaviour. An act of Congress approved March 3, 1823, (Story’s Laws U. S. 1915) amongst other things, provides, “ That the powers and duties of the Judges of said Territory,” (Michigan,) “ shall be regulated by such laws asare or may be in force therein; and the said Judges shall possess a chancery, as well as common law jurisdiction. The tenure of office of said Judges shall be limited to four years,” &c., “provided, that nothing in this act contained shall be so construed as to deprive the Judges of the Territory, of the jurisdiction conferred upon them by the laws of the United States.” The same act, § 7, provides that from and after June 1, 1823, “ there shall be but one clerk of the Supreme Court of the Territory of Michigan, who shall perform all the duties of clerk of said Court, whether sitting as a Circuit and District Court, oras Judges of the territorial Courtand the following section provides for the adjustment of the accounts of John J. Deming, for his services as clerk of said District and Circuit Court.

District and Circuit Court powers were expressly conferred on the Judges of the territories, by an act of Congress of March 3, 1805, (2 Story’s Laws U* S. 975;) the first section of which enacts, “ that the Superior Courts of the several territories of the United States, in which a District Court has not been established by law, shall, in all cases in which the United States are concerned, have and exercise, within their respective territories, the same jurisdiction and powers which are by law given to, or may be exercised by, the District Court of Kentucky district; and writs of error and appeals shall be from decisions therein to the Supreme Court,” (of the United States,) “ for the same causes, and under the same regulations, as from the said District Court of Kentucky district.” The following section of the same act, provides a compensation for marshals, clerks, attorneys and jurors, extending, with some exceptions, to such officers of the territorial courts.

An act of Congress of February 19, 1831, (Gord. Dig. § 520,) goes still further, and provides, that the District Court of the United States, for the district of Michigan, (and also the District Courts of several other districts,) “ in addition to the ordinary jurisdiction and powers of a District Court, shall, within the limits of their respective districts, have jurisdiction of all causes, except appeals and writs of error, which now are, or hereafter may, by law, be made cognizable in a Circuit Court, and shall proceed therein in the same manner as a Circuit Court.”

I do not find that these several acts of Congress have been repealed. They were modified in some of their provisions, by the creation of distinct District and Circuit Courts, and the appointment of a District Judge, after the admission of Michigan into the Union, January 26, 1837. It follows, that until that time, the Judges of the Supreme Court of the Territory of Michigan, possessed, as Circuit and District Courts of the United States, the same jurisdiction and powers, in all respects, as the same Courts possessed, in any of the states; and their jurisdiction extended over the whole country then under the territorial government of Michigan, embracing Wisconsin, and a vast country west of it.

To enable the Judges to exercise their powers as District and Circuit Courts, all the usual officers of these tribunals were provided, — a district attorney, marshal, and collector of the revenue.

Under the authority of the act of Congress of March 3, 1823, before cited, (which, it will be recollected, authorized the territorial legislature of Michigan to regulate, by law, the powers and duties of the Judges of the Territory, providing, at the same time, that they should not have power to deprive said Judges of the jurisdiction conferred upon them by the laws of the United States,) the legislative council, at different times, made numerous provisions regulating and modifying the judicial system of the territory, as was thought expedient. The Judges of the territory were, as a Court, denominated the Supreme Court, by an act of the territorial legislature, and not by an act of Congress. So the legislative council created a jurisdiction which was entirely local, styled the Superior Circuit Court, to be holden in the different counties of the territory, but by the same Judges appointed by the President. Indeed, they possessed under the act of Congress the most ample power to regulate all matters of purely local jurisprudence. There was a single limitation only, —that they should not interfere with the jurisdiction conferred upon the Judges by the laws of the United States.

The seventh section of an act of Congress of April 18, 1818, providing for the admission of the state of Illinois into the Union, (3 Story’s Laws U. S. 1676,) was as follows: “All that part of the territory of the United States lying north of the state of Indiana, and which was included in the former Indiana Territory, together with that part of the Illinois Territory which is situated north of, and not included within, the boundaries prescribed by this act, to the state thereby authorized to be formed, shall be, and hereby is, attached to, and made a part of, the Michigan Territory, from and after the formation of the said state; subject, nevertheless, to be hereafter disposed of by Congress, according to the right reserved in the fifth article of the Ordinance aforesaid;” (the Ordinance of 1787,) “and the inhabitants therein shall be entitled to the same privileges and immunities, and subject to the same regulations, in all respects, with the other citizens of the Michigan Territory.” The country thus attached to the Territory of Michigan, continued to form a part of it, until the Territorial Government of Wisconsin was constituted, by an act of Congress, approved April 20,1836, which enacted, that, from and after the third day of July (then) next, all power and authority of the government of Michigan, in and over the Territory thereby constituted, should cease. (4 Story’s Laws U. S. 2426.)

I have thus referred to the Ordinance of 1787, and to the several acts of Congress, which created the offices of governor and judges of the territory of Michigan, prescribed the tenure and defined the powers and duties of each respectively, and the territorial boundaries within which such powers might be exercised ; and I have shown the general nature of the jurisdiction possessed by the Judges, both as a District and Circuit Court of the United States, and as a strictly local tribunal for the administration of the laws of the Territory.

Were the powers and duties of the Governor and Judges, such as we have seen them to be, under these various acts of Congress referred to, superseded by the organization of the State Government ? And were these offices absolutely, and for all purposes, vacated and determined by that event ?

If determined, at what time? The change, from a Territorial to a State Government, was not, and from necessity could not be, instantaneous. Indeed, our constitution itself contemplated that there could be no such sudden transition, for the fifth section of the Schedule, (of just as high authority as the constitution,) declares, that “ all officers, civil and military, now holding their offices- and appointments in this Territory, under the authority of the United . States, or under the authority of this Territory, shall continue to hold and exercise their respective offices and appointments, until superseded under this constitution.” The act of the State Legislature providing for the appointment of Judges of the Supreme Court of the state, did not take effect, nor did such Judges enter upon the term of their offices, until after July 4, 1836. The Judges of the Territory, therefore, continued to hold their offices, and to discharge the duties thereof, until after that time.

But, it may be said that they did so, under and by virtue of the State Constitution. Be it so. They were still within the precise meaning and intent of the fifth section of the Schedule ; — they were civil officers, holding their appointments under the authority of the United States. They had not been removed; their commissions had not been revoked by the President; nor had their powers and duties been superseded, or taken away, by any legislation of Congress ; and the people of Michigan had declared, by their delegates in convention, that they should continue to hold and exercise those very offices and appointments, until superseded by state officers of corresponding powers and duties. There is certainly much plausibility in this view of the case, but I do not rest the decision of this point upon ground merely plausible.

We may admit, that, upon the formation of the state constitution and government, all the powers of the Governor of the Territory were superseded, and could no longer be exercised within the geographical boundaries of the newly organized state; and we may admit further, that all the powers possessed and exercised by the Judges of the Territory, to which the stale Judges, under the constitution and laws of the United States could succeed, were taken from the former and transferred to the latter functionaries: — were the offices of judges of the territory of Michigan, thereby terminated ? To my mind, clearly not. The jurisdiction of the Judges was abridged, but they nevertheless remained the Judges of the same district of country as before the change of government. They still possessed plenary jurisdiction, as Circuit and District Courts of the United States, over the country called the Territory of Michigan, as appears from the positive enactments of Congress. That Congress might confer those powers upon three, instead of one, or two Judges, will not be questioned. Nor, will it be pretended, that any state authorities could, in any way, interfere with those Courts, so as either to enlarge, diminish, or take away their jurisdiction, or confer any of their powers upon state tribunals. Suppose the same Judges had been empowered by Congress to exercise Circuit and District Court powers only ? Would it have been contended by any one, that the change from a territorial to a state government, could have had the effect of determining their offices ? If such would have been the effect of the change, under the circumstances supposed, upon the offices of Judges, it must have had the like effect upon the offices of district attorney, marshal, and collector of the revenue; and why not upon the office of postmaster also? The state government had quite as much power to interfere with the transportation and delivery of the mails, and the collection of duties on imports, as with the offices of circuit and district judges, and the exercise of their powers and duties. Again, suppose there had been one Judge of the Territory of Michigan, instead of three Judges, and he had been authorized to perform the duties of Circuit and District Judge only. Would the change of government have affected the tenure of his office ? If not, does it vary the case, that Congress deemed it expedient to associate three persons to perform those duties. It cannot be seriously pretended.

If it be said that Justices Morell, Sibley, arid Wilkins, were Judges of the Supreme Court of the Territory of Michigan, and not Judges of a district or circuit federal court, it may be answered, that the style of the court in no way affects the question under consideration. It was in the power of Congress, to prescribe what style they chose, for the inferior courts created by them. But, it is to be remembered, no law of Congress enacted that the Judges should be styled Judges of the Supreme Court. That style was given them by a law of the Territory. By the Ordinance of 1787, and the laws of Congress, they were styled Judges of the Territory of Michigan, simply.

It seems to me clear, that these three Judges had full power, at any time prior to the abolishment of their offices by express legislation of Congress, to take effect on our admission into the Union, to have tried and determined offences against the revenue laws, and postoffice laws, infringements of patent rights, and copy rights, or any other matters within the jurisdiction of the Circuit and District Courts of the United States. Suppose it had been provided by our state constitution, that the Circuit Court of the United States for this District should constitute the Supreme Court of this state, and that the Judge of the District Court should be the Chancellor; and suppose the Judges of these Federal Courts had consented to perform the duties of such State Judges and Chancellor; could it be said that the exercise of such jurisdiction would have vacated their offices, or in any way affected their powers and duties as Judges of the Circuit and District Courts of the United States ? Certainly not. And if the conferring of local state jurisdiction and powers upon the Judges of these Federal Courts, could not have affected their jurisdiction and powers as federal judges, certainly, the circumstance that, by the organization of our state government, the jurisdiction which the Judges of the territory previously possessed, as a territorial and local court, was entirely superseded, could not have affected, in any way, the jurisdiction which they possessed as Circuit and District Courts.

But, if neither view which I have yet taken of this question be conclusive, there is still another aspect of it remaining to be examined, which, I think, must place it beyond all -controversy. It will be kept in mind that, in 1818, the country west of Lake Michigan, now constituting the Territory of Wisconsin, was added to, and made a part of, the Territory of Michigan, and so remained until after the third day of July, 1836. Now, if it were true, that the organization of the state government had the effect to divest the Governor and Judges, and all other officers within this peninsula, holding their offices and appointments under the authority of the United States, of all official power and authority, within the boundaries of the state, and if their offices were in so far superseded by that event, would they not still retain their offices, with the same official powers and duties as before, in that portion of the Territory of Michigan, over which the state government did not extend? Was not John S. Horner Governor, and were not Sibley, Morell and Wilkins, Judges, of the entire Territory of Michigan, — as well that part of it which was west of Lake Michigan, and which remained subject to the territorial government until July 3, 1836, as that part which was east of the lake ? Suppose these functionaries had all resided at Green Bay, or elsewhere west of Lake Michigan, at the time the state government went into operation; would it have been urged by any one, that their official existence was terminated by that event, or that it, in the slightest degree, affected their powers or jurisdiction, otherwise than by reducing the geographical limits within which they could be exercised? I apprehend not; and, in my judgment, the Judges would possess the same jurisdiction, over the same territory, as before, as Judges of the Circuit and District Courts of the United States; and they would only be deprived of their jurisdiction over mere matters of local jurisprudence within the limits of the state.

But, suppose the western part of the territory had been erected into a state, instead of this peninsula. Would it have been contended, that the formation of such state government would have dissolved and terminated the territorial government here? Would it have occurred to any one that the offices of our Governor and Judges, and all others held under the General Government, were vacated and superseded by that event? Unquestionably, never. Governor Horner, in such case, might rightfully have continued to perform the duties of Chief Executive officer of the Territory of Michigan, and Judges Sibley, Morell and Wilkins, to have exercised their judicial functions by holding courts, as before.

I am unable to see the slightest distinction between the case last supposed, and the one under consideration. That the Governor and Judges usually resided at Detroit, instead of residing west of Lake Michigan, does not make any material distinction in the cases; because the Ordinance of 1787, which contains the only provision I have been able to find on the subject, simply declares, that they shall reside within their district.

That Congress entertained the view we have taken of this subject is certain; for, by the act organizing a government for the Territory of Wisconsin, it was provided, that the Governor and Secretary should, before they entered upon the discharge of the duties of their offices, each take an oath or affirmation, before some Judge or justice of the peace, of the existing. Territory of Michigan; and a subsequent section of the same act declared, that the existing laws of the Territory of Michigan should be extended over the. newly created Territory. This act was approved April 20, 1886 ; long after our state government was organized and in full operation.

From the foregoing considerations we are satisfied that John S. Horner was governor, and that the persons who executed the deed of the premises in controversy, were Judges, of the Territory of Michigan, on the 1st day of July, 1836, — the day of the execution of the deed, — and that they had power to convey the premises.

3. But let us admit that this was not the case. Could the plaintiffs in error question the validity of the deed, on the ground that the grantors were not Judges of the territory, because their offices had been superseded by the organization of the state government. At the time of its execution, the United States held the unqualified fee of the lot conveyed, and possessed the absolute right to dispose of it, as they should deem expedient. They had empowered the Governor and Judges of the Territory, for the time being, to dispose of it, at their discretion, to the best advantage, by the act which we have before so often referred to. They appointed the persons who executed the deed, to those offices, and their terms of office were unexpired at the time of its execution ,* and we think that, by the acts of Congress before referred to, they recognized those persons as incumbents of those offices, and the existence of the offices, at and subsequent to the time of such execution. If so, the plaintiffs in error cannot now be permitted to deny that thei-e were such offices, or that the grantors held them ; for, surely, if the principal i-ecognize and affirm the existence and acts of an agent, a mere stranger cannot be permitted to controvert either.

We shall now briefly consider several questions of minor importance, which were raised at the trial and relied upon in the argument of this case.

4. It is contended, that the deed to the Detz-oit Young Men’s Society is void, because the Governor did not join with the Judges in executing it.

As a genez-al proposition, it is undoubtedly true, that where several persons are appointed to execute a power or trust, and no authority is given to a less number than the whole to act, all must join in its execution. A distinction is drawn, however, between a mere private trust or power, and a power of a public nature, conferred by law, in the execution of which, it is contended, that a majority have a right to act. If all are present to deliberate, although a majority only assent to the act, it is unquestionably sufficient. Grindley v. Barker, 1 B. & P. 229, 236; Rex v. Beeston, 3 T. R. 594; Withnell v. Gartham, 6 T. R. 398; Co. Lit. 181, b; Rex v. Windham, Cowp. 377, ’9. And, in this case, in the absence of proof to the contrary, it will be presumed that the Governor was present and consulted with the Judges, touching the grant and conveyance to the Detroit Young Men’s Society, of the lot in question. Where an act of public duty is enjoined, and has been performed in fact, the law will presume, unless the contrary directly appears, that every thing necessary to give it validity was observed in the performance. Downing v. Rugar, 21 Wend. 184; Math. Pres. Ev. 40.

But it appears to me that the language of the act of Congress of April 21, 1806, (2 Story’s Laws U. S. 1025,) is so explicit as to leave no room to question the validity of the deed, on the ground that it was not executed by the Governor. Section 1. authorized the Governor and Judges, Sec., or any three of them, to lay out the town of Detroit, adjust claims to lots therein, and give deeds for the same. Section 2. provided that the land remaining, after satisfying certain claims provided for in the first section, should be disposed of by the Governor and Judges aforesaid, at their discretion, who -were authorized to malee deeds to purchasers, and to apply the proceeds towards building a courthouse, and jail, &c. Upon the ground of the difference observable between the phraseology of the first and second sections of the act, the former conferring powers upon the Governor and Judges, or any three of them, the latter upon the Governor and Judges aforesaid, the counsel for the plaintiffs in error, argued that there was a distinction between the powers conferred by the two sections ; and that the powers conferred by the second section could not be exercised, without the concurrence of the Governor and all of the Judges. The word aforesaid is used relatively to what precedes it; and, being a collective word, may refer to several matters, according to the intent; it is sometimes very extensively applied. Dwarris on St. 771; 10 Rep. 139. Here, it manifestly refers to the persons described in the first section, just as they are there described ; in other words, it is used to show that Congress intended, by the second section, to confer the same powers upon the same persons in the sale of lands, which the first section conferred in donating them.

It was also insisted that the Land Board created by this act consisted of two integral parts, — the Governor and Judges, — and that no valid act could be done by one part without the concurrence of the other. We think this construction of the act cannot be sustained. The Governor and Judges were four persons designated by their names of office, to perform the duties contemplated by the act; their powers were the same, and might be exercised in the same manner, as though the members of the board had been designated and appointed by their respective names. The act clearly excludes the construction contended for, if we are right in the view we have taken, that the same persons were authorized to act under the second section, as under the first.

5. Another objection taken was, that the deed of the Governor and Judges was inadmissible in evidence, because it was not acknowledged by the Judges who executed it. A sufficient answer to this objection is, that, under the statute in force when the conveyance was made, (Laws 1832, p. 280,) a deed, though not acknowledged, was good as against every body except subsequent purchasers, or mortgagees, for a valuable consideration. It may be said further, that the word deeds, as used in the act conferring power upon the Governor and Judges “to make deeds to purchasers,” must be understood in its common law signification. At common law, a deed is a written instrument under seal. This definition embraces the conveyance in question.

6. Again, it is objected that parol evidence was admitted, to prove the official character of the persons who executed the deed. It is insisted that their commissions, or the record of their appointment, should have been produced, or their absence accounted for, before parol proof could be received. Such is not the rule of evidence. The proof offered, — that they were reputed to be, and were acting Judges of the territory of Michigan, — was sufficient prima facie.

7. It is insisted also, that the Court below erred in refusing to permit the plaintiffs in error to read in evidence the deed from the Treasurer of Wayne County to Scott, executed October 10, 1833, in consummation of a sale of the lot in question, for the taxes of the year 1828. We have no doubt this deed was properly rejected. It was, at most, but evidence of the regularity of the Treasurer’s sale ; and unaccompanied by proof that the taxes, for which the sale was made and the deed given, had been legally assessed and returned, and that all the proceedings anterior to the sale, had been in conformity to the statute, it did not tend to prove a title to the premises in the plaintiffs in error, or to disprove the title of the defendants.

8. The Court below properly rejected, and excluded from the jury, the parol evidence introduced by the plaintiffs in error, to show that the premises in question were known as lot 52, prior to April 27,1807 ; the resolution of the Governor and Judges offered in evidence to show an assignment of lot 52 to Elijah Brush as agent for Todd & McGill; the proof offered of the parol declarations of the Governor and Judges, made to'the assessors of the city of Detroit, in the year 1828, that the lot in question had been conveyed and was subject to taxation ; and also the proof offered that the records of the Governor and Judges had been inaccurately kept, and that many grants had been made and deeds given which did not appear from those records. This evidence was all wholly irrelevant and inadmissible.

The points of error raised upon the refusal of the Court below to instruct the jury as requested by the plaintiffs in error, and, also, upon the instruction given by the Court to the jury, have all been fully considered, in discussing the questions raised in the progress of the trial, as they appear in the bill of exceptions.

We are of opinion that there is no error in the record and proceedings of the Court below, in this case. The judgment below must therefore be affirmed.

Felch, J. did not participate in the decision, the cause having been argued before he took his seat upon the bench.

Judgment affirmed.