Osborn v. President of the Bank of the United States

delivered the opinion, of the Court, and, after stating the case, proceeded' as follows,:

At the close of the argument, a point was suggested, of shch vital importance, as to induce the Court to request that'it might be particularly.spo' ken to. ' That point is1, the right of the Bank to sue jn the Courts of the United-States. It has been argued, and ought to be disposed of, before •we proceed to the actual exercise of jurisdiction, by deciding on the rights of the parties.

The appellants contest the jurisdiction of tne Court on two grounds:

1st. That the act of Congress has not given it

2d. That, under the constitution, Congress can-llOt give it.

1. The first part of the objection depends entirely on the language of the act. The words are, that the Bank shall be “ made able and capable in law,” “ to sue and be sued, plead and be im-pleaded, answer and be answered, defend and be defended, in all State Courts having competent ju^ ^diction, and in any Circuit Court of the Uni-States.”

These words seem to the Court to admit of but one interpretation. They cannot be made plained by explanation. They giye, expressly, the right to sue and be sued,” “ in every Circuit Court of the United States,” and it would be difficult to substitute other terms which would be more direct and appropriate foj' the purpose. The argument of the appellants is founded on the opinion of this Court, in The Bank of the United States v. DeveaUx, ( 5 Cranch, 85 .) In that case it was decided, that the former Bank of the United States was not enabled, by the act which incorporated it, to sue in the federal Courts. The words of the jM. section of that act are, that the Bank may “ sue and be sued,” &c. “ in Courts of record, or any Other piaos whatsoever.” The Court was of opinion, that these general words, which are usual in all aets of incorporation, gave only a general capacity to sue, not a particular privilege to sue in the

; The clause- or the Bank, which authorizes it to sue In the Circuit Court?, is con-i u uma.

The act of incorporation, then, confers jurisdiction on the Circuit Courts pf the United States, if Congress can confer it.

2. We will now consider, the constitutionality of the clause in the act of incorporation, which au- . • . . . 1 thorizes the Bank to sue m the federal Courts.

T . .. . • In support ot this clause, it is said, that the leg¡s]ativej executive, and judicial powers, of every well constructed government, are co-extensive with each other ; that is, they are potentially co-eften-sive. The executive department may constitutionally execute every law which the Legislature may constitutionally make, and the judicial department may receive from the Legislature the power of construing every such law. All govern-

This clause enables the judicial department to receive jurisdiction to the full extent of the consti tution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares; that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.

The suit of The Bank of the United States v. Osborn and others, is a ease, and the question is,, whether it arises under a law of the United States ?

The appellants contend, that it does not, because several questions may arise in it, which depend on the general principles. of the law, not on any act of Congress.

If this were sufficient to withdraw a case from

Tn those cases in which original jurisdiction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form. In every other case, the power is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. With - the exception of these cases, in which original jurisdiction is given to this Court, there is none to which the judicial powder extends, from which the original jurisdiction of the inferior Courts is ex-

The constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates Cases in which its jurisdiction is original and exclusive ; and then defines that which is appellate, but does not insinuate, that in any such case, the power cannot be exercised in its original form by Courts of original jurisdiction. It is not insinuated, that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance, in-the Courts of the Union, but must 'first be exercised in the tribunals of the State.; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law - of the United States.

We perceive, then, no ground on which the proposition can be maintained, that Congress is incapable of giving the Circuit Courts original jurisdiction, in any case to which the appellate jurisdiction extends.

We ask, then, if it can be sufficient to exclude this.jurisdiction, that the case involves questions depending on general principles ? : A' cause may depend on several questions of fact ahd law. Some

We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or Of law may be involved in it.

The case of the Bank is, we think, a very strong case of this description. The charter of incorporation not only creates it, but gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make, no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependant on the same law. Can a being, thus constituted, have a caso which does not arise literally, as well as substantially, under thé law ?

Take the case of a contract, which is put as the. strongest against the Bank.

When a Bank sues, the first question which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue? Has it a right to come, not into this Court particularly, but into any Court ? This depends on a-

The appellants say, that the case'arises on the contract; bat the validity of the contract depends on a law of’the United States, and the plaintiff is

The clause giving the B;ank a right to sue in the Circuit Courts of the United States, stands on the same principle with the acts authorizing officers of the United States who sue in their own names, to sue in the Courts of the United States. The Postmaster General, for example, cannot sue under that part of the constitution which gives jurisdiction to the federal Courts, in conséquence of the character of the party, nor is he authorized to sue by the Judiciary Act. He comes into the Courts of the Union under the authority of an act of Congress, the constitutionality of which can only be sustained by the admission that his suit is a case arising under a law of the United States. If it be said, that it is such a;case, because a law of the United States authorizes the contract, and authorizes the suit, the same reasons exist with respect to a suit brought by the Bank.' That, too, is such. a case; because that suit, too, is itself authorized, and is brought on a contract authorized by. a law of the United States. It depends abso-,

If it be said, that; a suit brought by the Bank maiy depend in fact altogether on questions unconnected with any law of the United States,, it is equally true, with respect, to suits brought by the Postmaster General. The plea in bar may be payment,” ifthe suit be brought on a bond, or non-* assumpsit, if it be brought on an open account, and no other question' may arise than. wbat. respects the complete discharge oí the . demand, üet the constitutionality of the act authorizing the Postmaster General to sue in the Courts .of the United States, has never been drawn into questions It is sustained singly by an act of Congress, stand-* ingon that construction, of the constitution, which asserts the right of the Legislature to give original jurisdiction, to the Circuit Courts, ip. cases arising under a law of the United States;

The clause in the patent lav?, authorising spits in thd Circuit Courts, stands, we think, bn'the same principle. Such a suit is a case arising under a law of the United States. Yet the defendant may not, at the trial, question the validity of the patent* or make any point which requires the construction of an act of Congress;. He may rest his defence exclusively on the fact, that he has hot violated the right of the plaintiff. That this feet becomes the sole question made in the cause, cannot oust the jurisdiction of the Court, or establish the position* that the case does not arise under á law of the United Staves.

Bis said, that a clear distinction exists between

This distinction is not denied ; and, if the act of Congress was a simple act of incorporation, and contained nothing more, it might be entitled to great consideration. But the. act. does not stop with incorporating the Bank: It proceeds to bestow upon the being it has made, all the faculties and capacities, which that being possesses. Every act of the Bank grows out of this law, and is tested by it. To use the language of the constitution, every act of the Bank arises out of this law.

A.naturalized citizen is indeed made a citizen under an act of Congress, but the actdoes not proceed to gi ve, to regulate, or to prescribe his capa-citiés. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congressto enlarge or abridge those rights. 1 he simple power of the national Legislature, is to prescribe a uniform rule, of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution, then tases him up, and, among other rights, extends to him the capacity , of suing in the. Courts of the United States, precisely under the same circumstances under wfaieh a native might sue. He is

There is, then, no resemblance between the act incorporating the Bank, and the general naturalization law.

Upon the best consideration we have been able to bestow on this subject, we are of opinion, that the clause in the act of incorporation, enabling, the Bank to site in the Courts of the United States, is insistent with the constitution, and to be obeyed in all Courts.

Wé will now proceed to consider the merits of the cause.

The appellants contend, that the decree of the Circuit Court is erroneous—

1. Because no authority is shown in the record, from the Bank, authorizing, the institution or prosecution of the suit.

2. Because, as against the defendant, Sullivan, there are neither proofs nor admissions, sufficient to sustain the decree.

3. Because, upon equitable principles, the case made in the bill, does not warrant a decree against either Osborn or Harper, for the amount of coin and . notes in the bill specified to have passed through their hands.

4. Because, the defendants are decreed tcf pay interest upon the coin, when it. was not in the power of Osborn or Harper, and was stayed in the hands of Sullivan by injunction.

5. Because, the case made in the bill does not

How far a warrant of attorney, brother, authority, must be shown, to enable an attorney or solicitor to prosecute a suit.

6. Because, if any case. is made in the bill proper for the interference óf a Court.of Chancery, it is against the State of ?Ohio, in which case the Circuit Court could not exercise, jurisdiction.

7. Because, the decree assumes that the Bank of the United States is not subject to the taxing power óf the State of Ohio, and decides that the law of Ohio, the execution of which is enjoined, is unconstitutional.

These points will be considered in the order in which they are made.

1. It is admitted that a corporation can only appear by attorney, and it is also ¿dmitted, that the attorney must receive the authority of the corporation to enable him to represent it. It is not admitted that, this' authority must be under seal, On the contrary, the principle decided in the cases of the Bank of Columbia v. Patterson, &c. is supposed to applyto this case, and to show that the seal may be dispensed with. It is,' however, unnecessary to pursue, this inquiry, since the real question is, whether, the non-appearance of the power in the record be error, not whether the power was insufficient in itself.

Natural persons may appear in Court, either by themselves, or by their attorney. But no man has a right to appear as the attorney of another, without the authority of that other. In ordinary cases, the. authority must be produced, because there is, in the nature óf things, no prima facie evidence that- one man is in fact the attorney of another.

The argument supposes some distinction, in this particular, between a natural person and a corporation; but the Court can perceive no reason for this distinction. A corporation, it is true, can appear only by attorney, while a natural person, may appear for himself. - But. when he waives this privilege, and elects to' appear by attorney, no reason is perceived why the same evidence should not be required, that the individual professing to represent him has authority to do so, which would be required if he were incapable of appearing in person. The universal and familiar practice, then, Of permitting gentlemen of' the profession to appear without producing a warrant of attorney, forms a rule, which is as applicable in reason, to their appearance for a corporation, asfor a natural person-. Were it even otherwise, the practice is

The answer of one defendant, when evidence.

.. In the statutes of jeofails and amendment, which respect this subject, the non-appearance of a warrant of attorney in the record, has generally been treated as matter of form; and the 32d section of the Judiciary Act may very well be construed to comprehend this formal defect in its general terms, in a case of law. No .reason is perceived why the Courts of Chancery should be more, rigid in .ex-, acting, (ho exhibition of a warrant of attorney than a. Court, of law* and, since the practice has, in fact, hoen the same in. both Courts, an appellate Court ought, we think, to be governed in both by the same rule.

2. The sécond. point' is one. on which tne productiveness of any decree,in favour of the tiffs most probably depends; for, if the claim be hot satisfied with the, money found in the possession of Smlivan. it is, at hest, uncertain whether

In inquiring whether the proofs or admissions in the cause be sufficient to charge Sullivan, the Court will look into the answer of Currie, as well as into that of Sullivan. In objection to this course, it is said, that the answer of one defendant cannot be read against another. This is generally, but not universally, true. Where ne defendant succeeds to anothér, so that the right of the one devolves on the other, and they become privies in estate, the rule is not admitted to apply. Thus, if an ancestor die, pending a suit, and the proceedings be revived against his heir, or if a suit be revived against an executor or administrator, the answer of the deceased person, or any other evidence, establishing any fact against, him, might be read also against the person who succeeds to him. So, a pendente lite purchaser is bound by the decree, without being even made a party to the suit; a for-tiori, ,'he would, if made a party, be bound by the testimony taken against the vendor.

In this casé, if Currie received the money taken out of the Bank, and passed it over to Sullivan, the establishment of this fact, in á suit against Currie, would seem to bind his successor, Sullivan, both as a privy in estate, and. ás a person getting possession pendente lite, if the original suit had been instituted against Currie. , We can perceive no difference, so far as respects the answer of Currie, between the case supposed, and the case as it stands. If Currie, who was the predecessor of Sullivan, admits that he received the money of

His answer states, that on or about the 19th or 20th of September, 1819, the defendant, Harper, delivered to him, in coin and notes, the sum of 98,000 dollars, which he was informed, and believed to be the money levied on the Bank as a tax, in pursuance of the law of the State of Ohio. After consulting counsel on the question, whether he ought to retain this sum within his individual control, or pass it to the credit of the State on the books of the treasury, he adopted the latter course, but retained itcarefully in a trunk, separate from the other funds of the treasury; The money afterwards, came to the hands of Sullivan, the gentleman who succeeded him as treasurer, ánd gave him a receipt for all the money in the treasury, including' this, Which was still kept separate from the rest.

We think no reasonable doubt can be entertained, but that the 98,000 dollars, delivered by Harper to Currie, were taken out of the Bank. Cur-rie understood.and believed it tobe the fact. When did he so understand and believe it? At the time when he received the money. And from whom did he derive his understanding and belief? The inference is irresistible, that he derived it from his own knowledge of circumstances, for they were of public, notoriety, and from the information of Harper. In the necessary course of things, Harper, who was sent, as Currie must have known, on this

Currie, then, being clearly in possession of this money, and clearly liable for it, we are next* to look into Sullivan’s answer, for the purpose of inquiring whether he.admits any facts which show him to be liable also.

Sullivan denies all .personal knowledge of the transaction ; that is, he was not in office when it took place, and was not present when the money was taken out of the Bank, or when it was delivered to Currie. But when he entered the treasury office, he received this sum of 98,000 dollars, separate from the other money of the treasury, which, he understood from report, and was informed by his predecessor, from whom he received it,, was the money taken out of the Bank. This sum has remained untouched ever since, from respect to the injunction awarded by the Court.

We ask, if a rational doubt can remain on this subject.

Mr. Currie, as treasurer of the State of Ohio, receives 98,000 dollars, as being the amount of a tax imposed by the Legislature of. that State on

Even admitting that the answer of Currie, though establishing his liability as to himself, could not prove even that fact as to Sulliyan ; the answer of Sullivan is itself sufficient, we think, to charge him. He admits that these -98,000 dollars were delivered to him, as being the money which was taken out of the Bank, and that he so received it.; for, he says, he understood this sum was the same as charged in the bill; that his information was from report, and from his predecessor; and that the money has remained untouched, from respect to the injunction. This declaration, then, is a part of the fact. The fact,, as admitted in his answer, is not simply that he received 98,000 dollars, but that he. received 98,000 dólíars, as being the money taken out of the Bank — the money to which the writ of injunction applied.

In a. common action between two private individuals, such an admission would, at least, bé sufficient to throw on. the defendant the burthen of

Responsibility of the parties against whom the bill was taken pro confesso.

3. The next objection is, to the decree against > , __ . , . ... ® Osborn and Harper, as to whom -the bill was ta- ¶ ' - j ken iqt confessed*

The bill charges!? that Osborn employed John L. Harper to collect the tax, who proceeded by violence to enter the office of discount and deposit at Chilicothe, and forcibly took therefrom 109,000 dollars in specie and bank notes; and that, at the time of the seizure, Harper well knew, and was duly notified, that an injunction had been allowed, which money was delivered either to Currie or Osborn.

So far as respects Harper and Osborn, these allegations are to be considered as true. If the act of the Legislature of Ohio, and the official

Interest will not be decreed against a party, upon money which he is enjoined from using.

We think it unnecessary, in this part of the case, to enter into the inquiry respecting the effect of the injunction. No injunction is necessary to attach responsibility on those who conspire to do an illegal act, which this is, if not justified by the authority under which it was done.

4. The next objection is, to the allowance of . , .... . , „ , interest on the coin, which constituted a part ot the sum decreed to the complainants. Had the complainants, without the intervention of a Court of equity, resorted to their legal remedy for the injury sustained, their right to principal and interest would have stood on equal ground. The same rule would be adopted in a Court of equity, had the subject been left under the control of the party in possession, while the right wets in litigation. But the subject was not left under the control of the party. The Court itself interposed, and forbade the person, in whose possession the property was, to make any use of it. This order having been obeyed, places the defendant in the same

Case made in the bill, proper for an injunction, and other equitable relief.

5* The fifth objection to the decree is, that the case made in1 the bill does not warrant the irffer- ' ^erenCe °-f & Court of Chancery-

In examining this question, it is proper that the Court should consider the real caso, and its actual circumstances. The original bill' prays for an in-, junction against Ralph- Osborn, Auditor of the State of Ohio, to restrain him from- executing a law of that State, to the great oppression and injury of the complainants, and to the destruction of rights and privileges conferred on them by their charter, and by the constitution of the United States. . The true inquiry is, whether an injunction can be issued to restrain a person, who is a State officer, from performing any official act enjoined by statute; and whether a Court of equity-can decree restitution, if the act be performed-. In pursuing this inquiry, it must be assuméd; for the present, that the act is unconstitutional, and fufj nishes no authority or protection to the officer who is about to proceed under it. This must be assumed, because, in the arrangement of his argil

The appellants.allege, that the original bill’contains, no allegation which can justify the application for an injunction, and treat the declarations of Ralph. Osborn, the Auditor, that he should execute-.the law;, as the light and frivolous threats of an. individual, that he would commit an ordinary trespass; But surely this is not the .point of view in which the application for an injunction is to be considered. The‘Legislature of Ohio had passed

To treat tms as a common casual trespass, would be to disregard entirely its true character and substantial merits. The application to the Court was, to interpose its writ of injunction, to protect the Bank, not from the casual trespass of an individual, who might not perform the act he threatened, but from the total destruction of its franchise, of its chartered privileges, so far as respected the State of Ohio. It was morally certain, that the Auditor would proceed to execute the law, and it was morally certain, that the effect must be the expúlsion of the Bank from the State. An annual charge of 100,Q0G dollars, would, more than absorb all the advantages of the privilege, and would consequently annul it.

If the State of Ohio could have been made a party defendant, it can scarcely be denied, that this would be a strong c&se for an injunction. The objection is, that, as the real party cannot be brought before .the Court, a suit cannot be sustained against the agenda of that party; and cases have been cited, to show that a Court of Chancery will not make a decree, unless all those who are substantially interested, be made patties to the suit. "

This is certainly true, where it is in the power of the plaintiff to make them parties; but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for "whose advantage it is done, be himself

We think the reason for an injunction is much stronger in the actual, than it would be in the supposed case. In the regular course of things, the agent would pay over the money immediately to his principal, and would thus place it beyond the reach of the injured party, since his principal is not amenable to the law. The remedy for the injury, would be against the agent only; and what agent could make compensation for such an injury? The remedy would have nothing reál in it. It would be a remedy in name only* not in substance. This alone would, in our opinion, be a sufficient Reason for a Court of equity The injury would, in fact, be irreparable,; and the cases are innumerable, in which injunctions are awarded on this ground.

But, .were it even to be admitted, that the injunction, in the first instance, was improperly awarded, and that the original bill could not be maintained, that would ,not,. we think,;, materially affect the case- An. amended and supplemental bill,, making new parties, has been filed in the cause, and on that bill, with the proceedings under it, the decree.was pronounced. The question is, whether, that bill and those proceedings support the decree.

The case thev make, is, that the money and

We think it a case in which a Court of equity ought to interpose, and that there are several grounds on which its jurisdiction may be placed.

One, which appears to be ample for the purpose, is, that a Court will always interpose, to prevent the transfer of a specific article, which, if transferred, will bes lost to the owner. Thus, the holder of negotiable securities, indorsed in the usual manner, if he has acquired them fraudulently, will be enjoined from negotiating them; because if negotiated,, the maker or indorser must pay them. Thus, too, a transfer of stock will be restrained in favour of a person having the real property in. the article. In these cases, the_ -injured party would have his remedy at law; and the probabili-. ty that this remedy would be adequate, is stronger in the cases put in the books, than in this, where the sum is so greatly beyond the capacity of an ordinary agent to pay. But it is the province of a Court of equity, in such cases, to arrest the injury, and prevent the wrong. The remedy is.more beneficial and complete, than the law can give. The money of the Bank, if mingled with the other mo

The exemption of the State from sustability, no objection to the proceedings against its officers, for executing an unconstitutional law.

6. YVe proceed now. to the 6th point made by the appellants, which is, that if any case is made . / „ . J in the bill, proper tor the interference of a Court of Chancery, it is against the State of Ohio, in case the Circuit Court could not exercise jurisdiction.

The bill is brought, it is said, for the purpose óf protecting the Bank in the exercise of a franchise granted by a law of the United States, which franchise the. State of Ohio asserts a right to invade, and is about to invade. It prays the aid of the Court to restrain the officers of the State from executing the law. It is, then, ¿ controversy between the Bank and the State of Ohio. The interest of the State is-direct and immediate, not consequential. - The process of the Court, though not directed against the State by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though ’not in form, against the State, and the Court ought not to proceed ’without making the State a party. If this cannot be done, the Court cannot take jurisdiction of the cause.

The full pressure of this argument is felt, and the difficulties it present's are acknowledged. The direct interest of the State in the suit, as brought, is admitted.; and, had it been in the power of the Bank to máke it a party, perhaps no decree otight to have been pronounced in the cause, until the

Before we try this question by the constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail.

A.denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which, may be deemed questionable. It asserts, that the agents of a State, alleging the authority of a law void ih itself, because repugnant to the constitution, may arrest the execution of any law in the United States.. It maintains, that if a State shall impose a fine or penalty on- any person employed in the execution of any law of the United States, it may levy that fihe or penalty by a ministerial officer, without the sanction even of its own Courts; and that the individual, though.he perceives the approaching danger, can obtain no protection from the judicial department of the government. .■ The carrier of the mail, -the collector of the revenue, the marshal of a district, the recruiting officer, may all be inhibited, under ruinous

These are said to be extreme cases; but the case at bar, had-it been put by way of illustration in argument, might have been termed an extreme case ; and, if a penalty on a revenue officer, for performing his duty, bé more obviously wrong than a penalty on the Bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a. public officer for the'performance of his duty, than by the infliction of this penalty on a Bank, which, while carrying on the fiscal operations of the government, is also transacting its own business ; but, in. both cases, the. officer léVyin^ the penalty acts under a void authority, and the power

The distinction between any extreme case; and that which has actually occurred, if, indeed, any difference of principle can be supposed to exist between them, disappears, when considering the question of jurisdiction; for,, if the Courts^ of the United Stales cannot rightfully protect the agents who execute every law authorized by the constitution, frbm the direct action of State agents in the collection of penalties, they cannot rightfully pro-, tect those who execute any law.

The question, then, is, whether the constitution of the United States has provided a tribunal which. can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union, from the attempts of a particular State, to resist, the execution of those laws.

The State of Ohio denies the existence of this power, and contends, that no preventive proceedings whatever, or proceedings ^against the very property which may have been seized by the agent; of a State, can be sustained against such agent, because they would be substantially against the, State itselfj in violation of the 11th amendment of the constitution.

That the Courts of the Union cannot entertain a suit brought against a State, by an alien, or the citizen of another State, is not to be controverted. Is a suit, brought against an individual, for any cause. whatever, a suit against a State, in the sense of the constitution ?

The words of the constitution, so far as they respect this question; are, “ The judicial-power shall extend to controversies between two or more States, between a State and. citizens of another State, and between a State and foreign states, ci-: tize.ns, or subjects.”

A subsequent clause distributes the power previously granted, and assigns to the Supreme Court original jurisdiction in those cases in which “ a State shall be a party.”

The words of The 11th amendment are, “The judicial. power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another. State, or by citizens or subjects of a foreign state.”

The, Bank of. the United States contends, that in all cases in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one who may be interested; but is not shown by the record to be a party.

The appellants admit, that the jurisdiction of the Court is not ousted by any incidental or consequential interest, which a State may. have in the decision tp be made, but is to be considered as a party, where the decision ac.ts directly and immediately upon the State, through its officers.

Do the provisions, then, of the . American constitution, respecting controversies to which a State may be a party, extend, on a fair construction of that instrument, to cases'in which the' State is not a party on the record ?

The first in. the enumeration, is .a controversy between two or more States.

There are not many questions- in which á State would.be supposed, to take a deeper or moreim-. mediate interest, than in those which decide on the extent of her .térritory. - Yet the constitution, not considering the State as a party to such controversies, if not plaintiff or.defendant on the record, has expressly given jurisdiction in thpse between citizens claiming,, lands under grants of different States. If each State, in consequence of the' influence of a decision on her boundary, had. been considered, by the framers of the constitution, as a party to that controversy, the express grant of jurisdiction would have been useless. The grant of it certainly proves, that the cónstitu

Jurisdiction is expressly granted, in those cases only where citizens of the samé State claim lands under grants of different States. If the claimants be citizens of different States, the Court takes jurisdiction for that reason. Still, the right of the State to grant, is the essential point in dispute: and in that "point the State is deeply interested. If that interest converts the State into a party, there is an end of the cause ; and the constitution will be construed to forbid the Circuit Courts to take cognizance of questions to which it was thought necessary expressly to extend their jurisdiction, even when the controversy arose between citizens of the same State.

We are aware, that the application of these ca-. ses may be denied, because the title of the State comes on incidentally, and the appellants admit the jurisdiction of the Court, where its judgment does hot act directly upon the property or interests of the State ; but we deéméd it of some importance to show, that the framers of the constitution contemplated the distinction between cases in which a State was interested, and those in which it was a party, and made no provision for a case of interest, without being a party on the record. ‘

In cases where a State is a party on the, record, the question of jurisdiction is decided, by inspection. ^ If: jurisdiction depend, not on, this plain fact, but on rthe interest, .of the State, what rulé has the' constitution given, by which; this interest

The next ip the enumeration, is a controversy between a State and the citizens of another State.

Can this case arise, if the State be not a party on the. record ? If it can, the question recurs, what degree of interest shall be sufficient to change the parties, and arrest the proceedings against the individual ? Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New-York and New-Jersey. Suppose, while such a controversy is pending,, the collecting officer of one State should seize property for taxes belonging to a» ían who supposes himself to reside in the other State, and who seeks redress in the federal Court of that State in which the officer resides. . The interest of the State is obvious. Yet ii is admitted, that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the State. That it would not so act, may, perhaps,. depend on circumstances. The officer may retain the amount of the.taxes in his hands, and, On the proceedings of the State against him, may plead in bar the judgment of a Court of

It wmuld be tedious to pursue this part of the inquiry farther, and .it would be useless, because every person will perceive that the same reasoning is applicable to all the other enumerated controversies to'which a State maybe a party. The principle may be illustrated by a reference to those other controversies where jurisdiction depends on the party. But, before we review them, we will notice one where the nature of the controversy is, in some degreé, blended with the character of the party.

If a.suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, áiidthis is shown on the record. But, suppose a suit to be brought7 which affects'the interest of a foreign minister, of by which the person of his se

In proceeding with the cases in which jurisdiction depends on the character of the party, the first in the enumeration is, “ controversies to which the United States shall be a party.”

Does this provision extend to. the cases where the United States are not named in the record, but claim, and are actually entitled to, the whole subject in controversy?

Let us examine, this question.

Suits brought by the Postmaster-General are

The judicial power of the Union is also extended to controversies between citizens of different States; and it has been decided, that the character of the parties must be shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest; but it has never been susr pected^ that, if the executor be a resident of another State, the jurisdiction of the federal Courts could be ousted by the fact,' that the creditors. or legatees were citizens of the same State with the opposite party. The universally received construction in this case is, that jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties, named on the record. Why is this construction universal?. No case can be imagined, in which the existence of an interest but of the party on the record is more unequivocal than in that which has been, just stated. Why, then, is it universally admitted, that this interest, in

Were a State to be the sole legatee, it will not, we presume, be alleged, that the jurisdiction of the Court, in a.suit against the executor, would be ■more affected by this fact, than by the fact that any other person, not suable in the Courts of the Union, was the sole legatee. Yet, in such a case, the Court would decide directly and immediately on the interest of the State.

. This principle might be further illustrated by showing that jurisdiction, where it depends on the character of the party, is never conferred in consequence of the existence of an interest in a party' not named; and by showing that, under the distributive clause of the 2d section of the 3d article, the. Supreme Court could never take original jurisdiction, in consequence of an interest in a partv not named in the record.

But the principle seems too well established to require that more time should be devoted to it. It may, we think, be laid down as a rule which admits of no exception, that, in all cases where, jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over .suits against States, is, of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect, if the constitution be construed as it

The State not being a party on the record, and the Court having jurisdiction over those who are parties.on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the Court ought to make a decree, against, the defendants; whether they are to be considered as having a real interest, or as being only nominal parties..

In. pursuing the arrangement which the appellants have made for the argument of the cause, this question has already been considered. The responsibility'of the officers of the State for the money-taken out of the Bank, was admitted, and it was acknowledged that this responsibility might be enforced by the proper action. The objection is, to .its being enforced against the specific article taken, and by the decree of this Court. But,, it has been shown, we think, that an action of detinue might he Maintained for that article, if the Bank had possessed the means of describing it, and that the interest of the State would not havé been an obstacle to the suit of the. Bank against the individual in possession of it. The judgment in such a suit might have been enforced, had the article been foupd in possession of the individual-defendant. It has been shown, that the danger of its being parted with, of its being lost to the plaintiff, and .the necessity of a discovery, justified the application to a Court of equity. It was in a

The decision of the Court in M'Culloch v. Maryland reviewed and confirmed.

It was propér, then, to make a decree against the. defendants in the Circuit Court, if the law of the State of Oliio be repugnant to the constitution, or to a law of the United States made in pursuance thereof, so as to furnish no authority to those who took, or to those who received, the money for which this suit was instituted.

7. Is that law unconstitutional ?

This point was argued with great ability, and decided by this Court, after mature and deliberate consideration, in the case of M‘Culloch v. TState of Maryland. A revision of that has been requested; and many considerations combine to induce a. review of it.

The foundation of the argument in favour of the right of a State to tax the Bank, is laid in the supposed character of that institution. The argument supposes the corporation to have been originated for the management of an individual concern, to be founded upon contract between individuals, having private trade and priyate profit for its great end and principal object.,

If these premises were true, the conclusion drawn from them would be inevitable. This mere private corporation, engaged in its own business, .with its own views, would certainly be subject to the taxing .power of the State, as any individual would be; and the casual circumstance of its being

If there be any thing in this distinction, it would tend to show that so much of the act as incorporates the Bank is constitutional, but so much of it as authorizes its Banking operations is unconstitutional. Congress can make the inanimate body, and employ the machine as a depository of, and vehicle for, the conveyance of the treasure of the nation, if it be capable of being so employed, but cannot breathe into it the vital spirit which alone can bring it into useful existence.

Let this distinction be considered.

Why is it that Congress can incorporate or create a Bank ? This question was answered in the case of M‘Culloch v. The State of Maryland. It is an instrument which is “necessary and proper” for carrying on the fiscal operations of government. Can this instrument, on any rational calculation, effect its object, unless it benndowed with that faculty of lending and dealing in money, which is conferred by its charter? If it can, if it be as competent to the purposes of government without, as with this faculty, there will be much difficulty in sustaining that essential part of the charter. If it cannot, then this faculty is necessary to the .legitimate operations of government, and was constitutionally and rightfully engrafted on the institution. It is, in that view of the subject.

This distinction, then, has no real existence. To tax its faculties, its trade, and occupation, is to tax the Bank itself? To destroy or preserve the one, is to destroy or preserve the other.

It is urged, that Congress' has not, by this act of incorporation, created the faculty of trading in money; that it had anterior existence, and may be carried on by a private individual, or company, as well as by a corporation. As this profession or business may be taxed, regulated, or restrained, when conducted by an individual, it may, likewise, be taxed, regulated, or restrained, when conducts ed by a corporation.

The general correctness of these propositions need not be controverted. Their particular application, to the question before the Court, is alone to be considered. We do not maintain that the corporate character of the Bank exempts its operations from the action of State authority. If an individual were to be endowed with the same fa

Were the Secretary of the Treasury to be authorized, by law, to appoint agencies throughout the Union, to perform the public functions of the Bank, and to be endowed with its faculties, as a necessary auxiliary to those functions, the operations of those agents would.be as exempt from the control of the States as the Bank, and riot more so. If, instead of'the Secretary of the Treasury, a distinct office were to be created for the purpose, filled by a person who should receive, as á compensation for his time, labour, and expense, the profits of the banking business, instead of other emoluments, tó be drawn from the treasury, which banking business was essential to the operations of the government, would each State in the Union Dossess a right to

Congress was of opinion that these faculties were necessary, to enable the Lank to perform the services which are exacted from it, and for which it was created. This was certainly a question proper for the consideration of the national Legislature. But, were it now to undergo revision, who would have the hardihood to say, that, without the employment of a banking capital, those services could be performed ? That the. exercise of these faculties greatly facilitates the fiscal operations of the government, is too obvious for controversy ; and who will venture to affirm, that the suppression of them would not materially .affect those operations, and essentially impair, if not totally destroy, the utility of the machine to the government ? The currency which it circulates., by means of its trade with individuals, is believed to make it a more fit instrument for the purposes of government, than it could otherwise be; and, if this be true, the capacity to carry on this trpde, is a faculty indispensable to the character and objects of the institution.

. The appellants admit, that, if this faculty be necessary, .to make the Bank a fit instrument fear the purposes of the government, Congress possesses the same power to. protect the machine in

It is contended, that, admitting Congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation ; and, not being expressed, ought not to be implied by the Court.

It is not unusual,, for a legislative act to involve consequences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from State cohtrol, which is said to be so objectionable in this instancé. The collectors of the revenue, the. carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted, that all who are employed in them, are protected, while in the line of duty; and yet this protection is not expressed in any act of Congress. It is an*

That department has no will, in any case. If the sound construction of the act be, that it exempts the trade of the Bank, as being essential to the character of a machine necessary to the fiscal operations of the government, from the control of the States, Courts are as much bound to give it that construction, as if the exemption had been established in express terms. Judicial power, as con-tradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to. the will of the Judge '; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.

The appellants rely greatly on the distinction between the Bank and the public institutions, such as the mint or the post office. The agents in those offices are, it is said, officers of government, and are excluded from a seat, in Congress. Not so the directors of the Bank. The connexion of the government with the Bank, is likened to that with contractors.

It will not be Cuntended, that the directors, or .

If the trade of the Bank be essential to its character, as a machine for the fiscal operations of the government, that trade must be as exempt from State control as the actual conveyance of the public money. Indeed, a tax bears upon the whole machine; as well upon the faculty of collecting and transmitting the money of the nation, as on that of discounting the notes of individuate.. No distinction is taken between them.

Considering the capacity of carrying on the trade of banking, as ah important feature in the character of this corporation, which was necessary, to make it a fit instrument for the objects fob which it was created, thé Court adheres to its decision in the case of M'Chlloch against The State

It being then shown, we think conclusively, that the defendants could derive neither authority nor protection from the act which they executed, and that this suit is not against' the State of Ohio within the! view of the constitution, the State being no party on the record, the only real question in the cause is, whether the record contains sufficient matter to justify the Court in pronouncings decree against the defendants ? That this question is attended with great difficulty, has not been concealed or denied. But when we reflect that the defendants, Osborne and Harper,, are incontestably liable for the full amount of the money taken out of the Bank; thatthe defendant, Currie, is also responsible for the .sum received by him, it having come to his hands with full knowledge of the unlawful means by which it was acquired; that the defendant, Sullivan, is also responsible for the sum specifically delivered to him, with notice that it was the property of the Bank, unless the form of having made an entry on the books of the treasury can countervail the fact, that it was, in truth, kept untouched, in a trunk, by itself, as a deposit, to await.

We think, then, that there is no error in the de

The argument in. this cause presents three questions: I. Has Congress granted to the Bank of the United States, an unlimited right of suing in the Courts of the United Sfates ? 2. Could Congress constitutionally grant such a right ? and 3. Has the power of the Court been legally and constitutionally exercised in this suit ?

I have very little doubt that the public mind will’be easily reconciled to the decision of the Court here rendered; for, whether necessary or unnecessary originally, a state of things has now grown up, in some of the States, which renders all

The Bank of the United States, is now identified with the administration of the national government. It is an immense machine, economically and beneficially applied to the fiscal; transactions of the nation. Attempts have been made to dispense with it, and they have failed ; serious and very weighty doubts have been entertained of its constitutionality, but they have been abandoned; and it is now become the functionary that collects, the depository that holds, the vehicle that transports, the guard that protects, and the agent that distributes and pays away, the millions that pass annually through the national treasury; and all this, not only without expense to the government, but .after paying a large bonus, and sustaining actual annual losses to a large amount; furnishing the only possible means of embodying the most ample security for so immense a charge.

Had its effects, however, and the views of its framers, been confined exclusively to its fiscal uses, it is more than probable that this suit, and the- laws in which it originated, would never have had existence. But it is well known, that with that object was combined another, of a very general) and not less important character.

The expiration of the charter of the former Bank; led to State creations of Banks ; each new Bank m-

A specie-paying Bank, with an overwhelming capital, and the whole aid of the government deposits, presented the only resource to which the government could resort, to restore that power over the currency of the country, which the framers of the constitution evidently intended to give to Congress alone. But this necessarily involved a restraint upon individual cupidity, and the exercise of State power ; and, in the nature of things, it was hardly possible for the mighty effort necessary to put.down an evil spread so wideband arrived to such maturity, to be made without embodying against it an immense moneyed combination, which could not fail of making its influence to be felt, wherever its claimances could reach, or its industry and wealth be brought to operate. ,

I believe, that the good sense of a people, who know that they govern themselves, and feel that they have no interests distinct from those of their government, would readily concede to the Bank, thus circumstanced, some, if not all the rights here

In the present instance, I cannot persuade myself, that the constitution sanctions the vesting of the right of action in this Bank, in cases in which the privilege is exclusively personal, or. in any case, merely on the ground that a question might possibly be raised in it, involving the constitution, or, constitutionality , of a law, of the United States.

When law? were heretofore passed for raising a revenue by a duty on stamped paper, the tax was quietly acquiesced in, notwithstanding it entrenched so closely on. the unquestionable power of the States over the law of contracts; but had the same law which declared void contracts not written upon stamped paper, declared, .that every person holding such paper should be entitled to. bring his action ‘‘in any Circuit Court” of the United States, it is confidently beliéved that there could have been but one opinion on the constitutionality of such a provision. The whole jurisdiction over contracts, might thus have been taken from the State Courts, and conferred upon those of the United States. Nor would the evil have rested there; by a similar exercise of power, imposing a stamp on deeds generally, jurisdiction over the territory- of the State, whoever might be parties, even between citizens of the same State — -jurisdiction of. suits instituted for the recovery of legacies

I cannot persuade myself, then, that, with these palpable consequences in view, Congress ever could háve intended to vest in the Bank of the United States, the right of suit to the extent here claimed. And, notwithstanding the confidence with whiqh this point has been argued, an examination of the terms of the act, and a consideration of them with a view to the context;, will be found to leave it by no means a clear case, that such is the legal meaning of the act of incorporation. To be sure, if the act had simply and substantively given the right “ to sue and be sued in the Circuit Courts cf the United States,” there could have been no question made upon the construction of those words. But such is not the fact. The words are, not that the Bank shall be made able and capable in law, to sue, &c., but that it shall, “by a certain name,” be made, able and capable in law to do the various acts therein, enumerated. And these words, under the force of which this suit is instituted, are found in the ordinary incorporating clause of this act, a clause

It has been argued, and I have no objection to admit, that the phraseology of this act has been varied from that incorporating, the former Bank, with a view to'meet the decision in Deveaux’s case. But it is perfectly obvious, that in. the prosecution of that design, the purport of Deveaux’s case has been misapprehended. The Court there decide, that the jurisdiction of the United States depended, (1.) on the character of the cause, (2.) on the character of the parties; that the Judiciary Act confined the jurisdiction of the Circuit-Courts to the second class of cases, and the incorporating act contained no. words that purported to carry it further. Whether the legislative powerof the United States could extend it as far as is here insisted on, or what words \yould be adequate to that'purpose, the case, neither called on the Court to.decide, nor has it proposed to decide. If any thing is to be inferred from that decision on those points, it is unfavourable to the sufficiency of. the words inserted in the present act. For, thé argument of the Court intimates, that where the Legislature propose to give juris* diction to the Courts of the United States, they do

A literal .translation of the words in question, is impossible. Nothing but inconsistencies present themselves, if we attempt to apply it without a reference to the laws and constitution of the United States, forming together the judicial system of the. Union- The vvórds are, “ may sue and be sued, &c„ in any State Court having competent jurisdiction, and in any Circuit Court of the United States.” But why should one. member Of the passage be entitled to an enacting effect, and not the residue ? Yet, who will imputé to the Legislature or the draftsman, and intention to vest a jurisdiction by these words'in a State Court? I do. liot .speak of the positive effect; since the failure of one enactment; because of a want either of power to give or capacity to receive, will notcon-

But why should this supposed enactment go still farther, and confer the ^capacity to be sued, as well as to sjie,, either in the Courts of the one jurisdiction or the other? Did the, lawgivers suppose that this corporation would not be subject to suit, without an express enactment for that purpose also? Or was it guilty of the more unaccountable mistake, of supposing that it could confer upon individuals, indiscriminately, this privilege of bringing suits in the Courts of the Unitsd States against the Bank ? that too, for a cause of action originating, say, in work and labour, or in a special action on the case, or perhaps, ejectment to try title to land mortgaged by a person not having the estate in him, or purchased of a tortious holder for a banking house ? I cannot acquiesce in the supposition ; and yet, if one is an enactment, and

My own conclusion is, that none of tliein are enactments, but all merely declaratory; or, at most, only enacting, in the words of the Court, in the case of Deveamthat the Bank may, by its corporate name and 'metaphysical existence, bring suit, or personate the natural man, in the Courts specified, as though it were in fact a natural person ; that is, in those cases in which, according to existing laws, suits may be. brought in the Courts specified respectively.

Indeed, a more unrestricted sense given to the words of the act,-could .not. be carried into execution ; a literal exercise of the right of suit, supposed to be granted, would be impossible. Can the Bank of the United States, be sued (in the li- - teral language of the act) “in any Circuit Court of the United States?” in that of. Ohio, or Louisiana, for instance? Locality, in this respect, cannot be denied to such an institution; or, at least,, it is only incidentally, by distress infinite, or attachment* for instance, that .such a suit could be maintained;. Nor, on the other hand, could the Bank sue literally in any Circuit Court of the United States. It must, of necessity, be confined to the Circuit Court of that district in which the de-. fondant resides, or is to be found. And thus, at last, we circumscribe these general words, by reference to the judicial system of the United States, as it existed at' the time. And why the same restriction should not have been imposed, as - to amount, which is imposed as to all other suitors,

I will dwell no longer on a point,, which is in fact' secondary and subordinate; for if Congress can vest this jurisdiction, and the people will it, the act may be amended, and the jurisdiction vested. I next proceed to consider, more distinctly,. the Constitutional question, on the right to vest the jurisdiction tó the extent here contended for.

And here I must observe, that J altogether misunderstood the counsel, who argued the cause for the plaintiff in error, if any of them contended against the jurisdiction, on the ground that the cause involved questions depending, on general principles. No one can question, that the Court whicji has jurisdiction of the principal question, must exercise jurisdiction over every question. Neither did 1 understand them as denying, that if Congress could confer , on the Circuit Courts appellate, they could confer original jurisdiction The argument went to deny the right to assume jurisdiction on a more hypothesis. It was one of

And this doctrine has my hearty concurrence in its general application. A very simple case may be stated, io illustrate its bearing on the question of jurisdiction between the two governments. By virtue of treaties with Great.Britain* aliens holding lands were exempted from alien disabilities, and made capable of holding, aliening, and transmitting their estates, in common with riativesi But why should the claimants of such lands, to. all eternity, be vested with the privilege of bringing an original suit in the Courts of the United States? It is true, a qiiestion might be made, upon the effect of the treaty, on the rights- claimed by or through the alien'; but until that question does arise^ nay, until a decision against the right takes, place, what end has the United States to subserve in claiming jurisdiction of the cause ? Such is the present law of the United States, as to all but this one distinguished party \ and that law was

I have never understood any one to question the right of Congress to vest original jurisdiction in its inferior Courts, in cases coming properly within the description of “cases arising under the laws of the United States;” but surely it must first be ascertained, in some proper mode* that the cases are. such as the constitution describes. By possibility, a constitutional question may be raised in

Efforts have been made to fix the precise sense of the constitution, when it vests jurisdiction in the general government, in “ cases arising under the laws of the TJnited States.” To me, the question appears suscéptible of a. very simple solution; that all depends upon the identity of tile case supposed.; according to which idea, a case may be such in its very existence, Or it may become such in its progress. An action mav «live, move, and have

But, dismissing the question of possibility, which, I must think, would embrace every other case as well as those to which this Bank is a party, in what

Not, indeed, in another point of view, is it strictly predicable of this Bank, that its acts arise ,

If this right to sue could be vested at all in the Bank,, it is-obvious that it must have been for one or more of three causes: 1. That a law of the United States incorporated it; 2. Thata.law of the United States vested in it the, power to sue; or, 3. That the power to defend itself from.trespasses as applicable to this, case strictly, or to contract debts as applicable to the Georgia case, was conferred on it by a law of the United States expressly.

The first I have considered. On the second, no one would havé the hardihood to contend, that such a grant has any efficacy, unless the suits, come within the description of cases arising .under a law of the United States, independently of the

.Of the power to repel trespasses, and to enter into contracts, as mere incidents to its creation, I trust I have shown, that néither comes within the description of a case arising .under a law .of the United States. But where will we find, in the law in question, any express grant of power relative to either ? The contracts on which the Georgia case is founded, are declared on as common promissory notes, payable to bearer. Now, as mere incidents, I have no doubt of an action being sustainable in a State Court in both cases, But if an express grant is relied on, as bringing this, .or the case of a contract, within the description of “ a case arising under a law of the-United States,” then I look through the' law in vain for any express grant, either to make the contract, or repel the trespass. It is true, the sweeping terms with which-the incorporating section concludes, import, that “by that name it shall and may be lawful for the Bank to do and execute all and singular the acts, matters, and things, which to them it shall and may appertain to do.” But this contains no grant of either, since the inquiry, at last, must be into the incidents of such an institution, and, as incidents, they needed not these words to sustain them; nor could those words give any more force, to the right. So that, at last, we are referred to the mere fact , of its corporate existence,, for the basis,.of either of the actions, or either of, the powers here insisted on, as bringing this , cause within the constitutional definition. Having a |e-

I will not undertake to define the limits within which the discretion of the Legislature of the Union may range, in the adoption of measures for executing their constitutional powers. It is very possible, that in the choice of means as “ proper and necessary” to carry their powers into effect, they may have assumed a- latitude not foyeseen at the adoption of the constitution. For example, in order to collect a stamp duty, they have exercised a power over the general law of contracts; in order to secure debts due the. United States, they have controlled the State laws of estates of deceased persons and of insolvents’ estates; in the distributions and the powers of individuals themselves, when insolvent, in the assignment of their

Yet, certainly, there is one limit to this chain of implied powers, which must lie beyond the reach of legislative discretion. No one branch . of the general government can new model the constitutional structure of the other.

Much stress was laid, in the argument, upon the necessity of giving co-ordinate extent to the several departments of a government; but it was altogether unnecessary to bring this consideration into the present case. As a ground of policy, this is not its proper place; and as a ground of construction, it must be needless, when applied to a con - stitution in which the judicial power so very far transcends both the others, in its acknowledged limits.

The principle is, that every government should possess the means of protecting itself; that is, of construing and enforcing its own laws. But this is not the half of the extent of the judicial power, of the Union. Ita most interesting province, is to enforce the equal administration of laws, and systems of laws, over which the legislative power can exercise no control. And thus, the judicial power is distributed into the two

How interesting, then, is it to the States, that the number of those persons who claim the privilege of coming into the Courts of the .United States shbuld be strietly limited ! Cases, since tjjrey arise out of laws, See. of the United States, muiff.be very limited in number; but persons may bripg intq the; Courts of the United States any question ,and every question, and, if this law be correctly construed, for any, the very smallest possible amount.

But if the plain dictates of our senses be relied on, what state of facts have we exhibited here ?

One of the counsel who aigued this cause in behalf of the Bank, has denominated it a bundle of faculties. This is very true ; but those faculties are substituted for the organization of a natural person.; and it is perfectly certain, that when it comes into this Court, it must be treated "ás a person! It is altogether inadmissible, to refine away the principles of jurisprudence, so as to consider it in any other light than that of a person. As such, it sues out á writ, declares, pleads,, takes judgment, and levies, an exéoútion. Ifit is not a

Nor had the Bank any idea that this power was vested in it, upon the ground that every possible case in which it might be involved in litigation, came within the constitutional definition of cases arising under laws, &c. of the United States. In its averments, those on which it claims jurisdiction, it simply takes two grounds : 1. That it was incorporated by an act of Congress ; 2. That the right to sue was given it by an act of Congress. But there is no averment, that the cause of action was a case arising under a law of the United States. It well knew, that it was ,a case emphatically arising put of an act of the -State of Ohio, operating upon the domicil of the Bank, which, although purchased in right of an existence metaphysically given it by Congress, was acquired and held according to the laws of Ohio, acting upon its own territory. Technically, these averments cover only two grounds ; they affirm, 1. That the Bank, being incorporated by Congress, had, therefore, a right to sue ; 2. That being incorporated, and having the right to sue conferred upon it by an act of Congress, therefore, it could maintain this action. But yet neither, nor both of these, could give the right, unless in one of the cases defined in the constitution, which case is not the subject' of an averment. I would not willingly place the-case on the ground of mere technicality; and, therefore, only make the observation to show, that the ground assumed in argument, is an afterthought. I believe that, until this argument, .the

Various instances have been cited and relied on, in which this right of suit in the Courts of the United States has been given to particular officers of the United States. But on these I would remark, that it is not logical to cite as proofs, the exercise of this right,, in instances which may themselves be the subject of constitutional questions. It cannot be intended to surprise this Court into the recognition of the constitutionality of the laws So cited. But there is a stronger objection; no such instance is in point, until it be shown that Congress has authorized such officers to bring their private contracts and private controversies into the. Courts of the United States. In all the

As to the instance of the action given under the patent law, it has been before remarked, that s.o

Upon the whole, I feel compelled to dissent from the Court, on the point of jurisdiction ; and this renders it. unnecessary for me to express my sentiments on the residue of the points in the cause.

Decree affirmed, except as to interest on the amount of the specie in the hands of the defendant, Sullivan.