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controlled the state laws of estates of deceased | here? *Making a person, makes a case; [*898 persons and of insolvents' estates; in the dis- and thus, a government which cannot exercise tributions and the powers of individuals them- jurisdiction unless an alien or citizen of another selves, when insolvent, in the assignment of state be a party, makes a party which is neither 896*] their own estates; in the exercise of alien nor citizen, and then claims jurisdiction various powers, they have taken jurisdiction because it has made a case. . If this be true, over crimes which the state laws took cognizance why not make every citizen a corporation sole, of; and all this, being within the range of their and thus bring them all into the courts of the discretion, is aloof from judicial control, while United States quo minus? Nay, it is still worse, unaffectedly exercised for the purposes of the for there is not only an evasion of the constituconstitution. Nor, indeed, is there much to be tion implied in this doctrine, but a positive alarmed at in it, while the same people who power to violate it. Suppose every individual govern the states, can, where they will, control of this corporation were citizens of Ohio, or, as the legislature of the United States.

applicable to the other case, were citizens of Yet, certainly, there is one limit to this chain Georgia, the United States could not give any of implied powers, which must lie beyond the one of them, individually, the right to sue à reach of legislative discretion. No one branch citizen of the same state in the courts of the of the general government can new-model the United States; then, on what principle could constitutional structure of the other.

that right be communicated to them in a body? Much stress was laid, in the argument, upon But the question is equally unanswerable, if the necessity of giving co-ordinate extent to the any single member of the corporation is of the several departments of a government; but it same state with the defendant, as has been was altogether unnecessary to bring this con- repeatedly adjudged. sideration into the present case. As a ground One of the counsel who argued this cause in of policy, this is not its proper place; and as a behalf of the bank, has denominated it a bunground of construction, it must be needless, dle of faculties. This is very true; but those when applied to a constitution in which the faculties are substituted for the organization of judicial power so very far transcends both the a natural person; and it is perfectly certain, others, in its acknowledged limits.

that when it comes into this court, it must be The principle is that every government treated as a person. It is altogether inadmissishould possess the means of protecting itself;, ble, to retine a way the principles of jurispru. that is, of construing and enforcing its own dence, so as to consider it in any other light laws. But this is not the half of the extent of than that of a person. As such, it sues out a the judicial power of the Union. Its most writ, declares, pleads, takes judgment, and levies interesting province is to enforce the equal an execution. If it is not a *person, [*899 administration of laws, and systems of laws, it has no standing in this court; it must, there. over which the legislative power can exercise fore, abandon this suit, or be subjected to perno control. And thus, the judicial power is sonal disabilities. Gentlemen have a right to 897*] distributed into the two *classes: (1) take what ground here they please, to sustain That which is defined by the circumstances of this action; but it is perfecily clear to me that the case; and (2) that which depends upon the the act of Congress was intended to vest this circumstances of the person. On the first, I right as a personal right, or not at all. Let anyone have endeavored to show, that the end is look through this act, and notice the unrestricted adequately effected by the provisions of the latitude that has been assumed in vesting the 25th section of the judiciary act, and, practi- right to sue both by and against this bank, and cally, can be exercised in no other way. But he will see that either there is no general right with regard to the second class, the argument to sue given in the seventh section, now relied turns against the United States; and every rea- on, or that it is given under the general power son that may be urged in favor of eking out the granted to pass all laws necessary to carry the jurisdiction in the first class of cases, reacts powers of the general government into execuforcibly to confine the jurisdiction strictly lion. The proviso to the 17th section is a rewithin its constitutional limits, as to the second markable proof of this. It puts the limits of class. When the alien, or the citizen of another judicial power altogether out of view. If Constate, or the grants of another state, are impli- gress, in legislating on this subject, did intend cated, the state courts open their tribunals to such a grant as is here contended for, it must the judiciary of the United States, and recognize be presumed that they did not advert to the their power as co-ordinate. Their citizens, their consideration that granting to an individual a territory, their laws, all are subjected to a right to sue was enlarging the jurisdiction of power quite foreign to the states, and judicial the court. It never can be supposed that they power is literally poured out upon the courts of meant to assume the power of adding to the the Union, without stint.

number of persons who might constitutionally How interesting, then, is it to the states, that become suitors in the courts of the United the number of those persons who claim the States. But every difficulty vanishes when we privilege of coming into the courts of the United limit the meaning of the language of the act, States should be strictly limited. Cases, since by a reference to the context. In fact, a genthey arise out of laws, &c., of the United States, eral power to bring actions in the courts of the must be very limited in number; but persons United States, is so peculiarly and explicitly may bring into the courts of the United States personal on the face of the constitution, that it any question and every question, and, if this is hard to perceive how Congress could have law be correctly construed, for any, the very for a moment lost sight of the restrictions smallest possible amount.

*imposed, in this respect, upon the ju- [*900 But if the plain dictates of our senses be re- dicial power. lied on, what state of facts have we exhibited Nor had the bank any idea that this power was vested in it, upon the ground that every in point; though I will still dispute the principossible case in which it might be involved in ple, that a repetition of error can convert an litigation, came within the constitutional defini- act into law or truth. The distinction is a clear tion of cases arising under laws, &c., of the one between all these cases and the bank. The United States. In its averments, those on which latter is a mere agent or attorney, in some init claims jurisdiction, it simply takes two stances; in others, and especially in the cases grounds: (1) That it was incorporated by an now before the court, it is a private person, actact of Congress. (2) That the right to sue was ing on its own account, not clothed with an given it by an act of Congress. But there is no official character at all. But the acts of public averment that the cause of action was a case officers are the acts of government; and emarising under a law of the United States. It phatically so, in suits by the Postmaster-Genwell knew that it was a case emphatically eral; the money to be recovered being the arising out of an act of the state of Ohio, op- property of the United States, it may be conerating upon the domicile of the bank, which, sidered that they are parties to the suit, just as although purchased in right of an existence those states are to the suits by or against their metaphysically given it by Congress, was ac- Attorney-General, where he is by law author: quired and held according io the laws of Ohio, ized to bring and defend suits in his own name acting upon its own territory. Technically, these officially. When the United States are parties, averments cover only two grounds; they affirm, the grant of jurisdiction is general. But there (1) that the bank, being incorporated by Con is express law also for every contract that the gress, had, therefore, a right to sue; (3) that postmaster enters into, or it will be in vain for being incorporated, and having the right to sue him to bring his suit in his own name or otherconferred upon it by an act of Congress, there wise. It would be in vain for him to rely simfore it could maintain this action. But yet ply on his being made postmaster under an act neither, nor both of these, could give the right, of Congress; in which point alone, there would unless in one of the cases defined in the consti- seem to exist any analogy between his case tution, which case is not the subject of an aver- and that of the bank. ment. I would not willingly place the case on As to the instance of the action given under the ground of mere technicality; and, there the patent law, it has been before remarked, fore, only make the observation to show that that so *entirely is its existence blend. [*903 the ground assumed in argument is an after- ed with an act of Congress, that to prosecute it, thought. I believe that, until this argument, the it is indispensable that the act should be set 901*] *ground now made was never thought forth as the ground of action. I rather think of; and I am at a loss to conceive how it is pos- it an unfortunate quotation, since it presents a sible to maintain the position that all possible happy illustration of what we are to understand cases in which this bank shall sue or be sued, by those cases arising under a law of Congress, come within the description now contended for. which in their nature admit of an exercise of Take, for instance, a trespass or a fraud com- original jurisdiction. The plaintiff must remitted by the bank, and suit brought by the cover, must count upon the act of Congress; injured party, in what sense could they be said the constitutional characteristic appears on the to be cases arising under a law of the United record before the defendant is called to answer; States? Or, take the case of ejectment, sup- and the repeal of the statute before judgment, pose to recover part of the premises of the bank- puts an end to his right altogether. Various ing-house in Philadelphia, and not a question such cases may be cited. But how the act of raised in the suit, but what arises under the Congress is to be introduced into an action of territorial laws of the country, and what cir- trespass, ejectment, or slander, before the decumstances characterize that as a case of the fendant is called to plead, I cannot imagine. proper description to give this court jurisdic- Upon the whole, I feel compelled to dissent tion? If this cause of action arises under a from the court, on the point of jurisdiction ; statute, why is not the statute referred to, and and this renders it unnecessary for me to exthe provision particularly relied on, if there is press my sentiments on the residue of the points any other than what the averments specify? in the cause.

Various instances have been cited and relied on, in which this right of suit in the courts of

Decree affirmed, ercept as to interest on the the United States has been given to particular amount of the specie in the hands of the defendofficers of the United States. But on these I

ant, Sullivan, would remark, that it is not logical to cite as proofs the exercise of this right, in instances Aff'g-16 Wall. 203. which may themselves be the subject of consti- Doubted-Taney, 4. tutional questions. It cannot be intended to Cited-9 Wheat. 905, 910; 12 Wheat. 149; 4 Pet. 563, surprise this court into the recognition of the 564; 5 Pet. 69, 78, 200, 202, 204 ; 7 Pet. 263 ; 10 Pet. 613; constitutionality of the laws so cited. But there 11 Pet. 397,572, 585; 12 Pet. 615; 2 How. 22, 25, 551; }

How. 538, 571; 9 How. 27, 29; 14 How. 119; 16 How. is a stronger objection; no such instance is in 409; 17 How. 140, 141, 499, 500; 18 How. 345; 21 How. point, until it be shown that Congress has au- 592; 2 Black, 632; 3 Wall

. 591 6 Wall. 2, 53, 285, 607; thorized such officers to bring their private con

8 Wall. 551; 11 Wall. 175; 13 Wall. 67; 16 Wall. 220;

18 Wall. 34, 38, 42; 1 Otto, 33;2 Otto, 541;3 Otto, 135 ; tracts and private controversies into the courts of 6 Otto. 201; 10 Otto, 284, 513, 560; 12 Otto, 140; Bald. 902*) the United States. In all the *cases cited, 217, 218, 231, 232, 406, 408, 409, 416, 561; Taney, 4: 1 the individual is acting distinctly as the organ Wood. & M. 16, 434; 2 Paine, 119; 1 Dill, 256, 320; 2 of government; but let them take the character 282, 296; 1 Abb. U. s. 25, 33; 2 Abb. U. S. 241 of a mere contractor, a factor, a broker, a com- 5 Blatchf. 145, 248; 11 Blatchf. 113; 5 Bank. Reg. 248, mon carrier, and then let laws authorizing them 468, 171,;. 7 Bank. Reg. 264, 426; 2 Sawy. 449; 1 Mcto sue in the courts of the United States be Lean, 355; 4 McLean, 28; 5 McLean, 618; 6 McLean,

146; 5 Cranch C. C. 251, 276; 1 Sumn. 584; 3 Sumn. passed, and I will acknowledge the cases to be 77;'1 Biss. 269; Deady, 328; 1 Woods, 426.

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904*] [*CONSTITUTIONAL LAW.]

corporator, bring this cause within the clause

in the constitution which gives jurisdiction to. THE BANK OF THE UNITED STATES the Supreme Court where a state is a party, or

bring it within the 11th amendment? THE PLANTERS' BANK OF GEORGIA. able to a citizen of the state of Georgia, or

2. Does the fact that the note is made pay. The circuit courts of the United States have ju- bearer, oust the jurisdiction of the court? risdiction of suits brought by the Bank of the

1. Is the state of Georgia a party defendant United States against another bank, incorporated in this case? If it is, then the suit, had the under a law of a state, and of which the state it- | 11th amendment never been adopted, must viduals, who are citizens of the same state with have been brought in the Supreme Court of some of the stockholders of the Bank of the United the United States. Could this court have enStates.

tertained jurisdiction in the case ? The Bank of the United States may sue in the circuit courts, as indorsee or bearer of a promis

We think it could not. To have given the sory note, although the original payee or indorser Supreme Court original jurisdiction, the state could not sue in the same courts, being a citizen of must be plaintiff or defendant as a state, and

The circumstance that a state is a member of a must, as a state, be a party on the record. A private corporation, will not give this court orig- suit against the Planters' Bank of Georgia is inal jurisdiction of suits where the corporation is a no more a suit against the state of Georgia party, or oust the circuit courts of the jurisdiction than against any other individual corporator. vested in them by law.

The state is not a party, that is, an entire parTHIS cause was brought up on a certificate ty, in the cause.

If this suit could not have been brought of the Circuit Court of Georgia, upon the ques originally in the Supreme Court, it would be tions arising in it, and was argued by the same difficult to show that it is within the 11th counsel with the preceding case of Osborn v. amendment. That amendment does not purThe Bank of the United States.

port to do more than to restrain the construc

tion which might otherwise be given to the Mr. Chief Justice MARSHALL delivered the constitution; and if this case be not one of opinion of the court:

which the Supreme Court could have taken In this case, the petition of the plaintiffs, original jurisdiction, it is not within the amendwhich, according to the practice of the state of ment. *This is not, we think, a case [*907 Georgia, is substituted for a declaration, is in which the character of the defendant gives founded on promissory notes, payable to a per- jurisdiction to the court. If it did, the suit son named in the note, “or bearer," and states could be instituted only in the Supreme Court. 905*] that the notes were duly transferred, This suit is not to be sustained because the assigned and delivered” to the plaintiffs, “who Planters' Bank is suable in the federal courts, thereby became the lawful bearer thereof, and but because the plaintiff has a right to sue any entitled to payment of the sums therein speci- defendant in that court, who is not withdrawn fied; and that the defendants, in consideration from its jurisdiction by the constitution, or by of their liability, assumed,” &c.

law. The suit is against a corporation, and The Planters' Bank pleads to the jurisdiction the judgment is to be satisfied by the property of the court, and alleges that it is a corporation, of the corporation, not by that of the individu of which the state of Georgia, and certain in- al corporators. The state does not, by becomdividuals, who are citizens of the same state ing a corporator, identify itself with the corpowith some of the plaintiffs, are members. The ration. The Planters' Bank of Georgia is not plea also alleges that the persons to whom the the state of Georgia, although the state holds notes mentioned in the petition were made an interest in it. payable, were citizens of the state of Georgia, It is, we think, a sound principle, that when and, therefore, incapable of suing the said bank a government becomes a partner in any tradin a circuit court of the United States; and being company, it devests itself, so far as coning so incapable, could not, by transferring cerns the transactions of that company, of its the notes to the plaintiffs, enable them to sue sovereign character, and takes that of a private in that court.

citizen. Instead of communicating to the comTo this plea the plaintiffs demurred, and the pany its privileges and its prerogatives, it dedefendants joined in demurrer.

scends to a level with those with whom it asOn the argument of the demurrer, the judges sociates itself, and takes the character which were divided on two questions:

belongs to its associates, and to the business 1. Whether the averments in the declaration which is to be transacted. Thus, many states be sufficient in law to give this court jurisdic. of this Union who have an interest in banks, tion of the cause.

are not suable even in their own courts; yet 2. Whether, on the pleadings in the same, they never exempt the corporation from being the plaintiffs be entitled to judgment. sued. The state of Georgia, by giving to the

The first question was fully considered by bank the capacity to sue and be sued, voluntarithe court in the case of Osborn v. The Bank of ly strips itself of its sovereign character, so far the United States, and it is unnecessary to re- as respects the transactions of the bank, and peat the reasoning used in that case. We are waives all *the privileges of that char. (*908 of opinion that the averments in the declara- acter. As a member of a corporation, a gov. tion are sufficient to give the court jurisdiction crnment never exercises its sovereignty. It of the cause.

acts merely as a corporator, and exercises no 906*] *2d. The second point is understood other power in the management of the affairs to involve two questions:

of the corporation, than are expressly given by 1. Does the circumstance that the state is the incorporating act.

The government of the Union held shares in case. Such a construction cannot be the corthe old Bank of the United States; but the rect one. privileges of the government were not imparted We think, then, that the charter gives to the by that circumstance to the bank. The United bank a right to sue in the circuit courts of the States was not a party to suits brought by or United States, without regard to citizenship; against the bank in the sense of the constitution. and that the certificate on both questions must So with respect to the present bank. Suits be in favor of the plaintiff. brought by or against it are not understood to be brought by or against the United States. Mr. Justice JOHNSON. This cause is one in The government, by becoming a corporator. which, from the great importance of the queslays down its sovereignty, so far as respects the tions it gave rise to. was certified to this court, transactions of the corporation, and exercises on a pro forma difference of opinion, that it no power or privilege which is not derived from might undergo the fullest investigation, and the charter.

give time for the maturest reflection. We think, then, that the Planters' Bank of The first of the points certified involved the Georgia is not exempted from being sued in the question of jurisdiction; for my opinion on federal courts, by the circumstance that the which, I must refer to the case of Osborn et al. state is a corporator.

v. The Bank of the United States, argued in 2. We proceed next to inquire, whether the conjunction with this, and decided this term. jurisdiction of the court is ousted by the cir- That opinion is final on the judgment which cumstance that the notes on which the suit was I must give in the cause; but there were other instituted, were made payable to citizens of the questions, which, although not tonched upon in state of Georgia.

the argument here, were very ably argued in Without examing whether, in this case, the the court below, and on which, having formed original proinise is not to the bearer, the court an opinion, I will make some remarks. will proceed to the more general question. *The case of The Bank v. Dereavir, [*911 whether the bank, as indorsee, may maintain a having decided that this court will look into suit against the maker of a note payable to a the individual characters of the corporators 909*) citizen of *the state. The words of the plaintiffs, in order to give jurisdiction, where judiciary act, section 11, are, “nor shall any it depends on circumstances of the person, it district or circuit court have cognizance of any was contended in the court below, that this suil, to recover the contents of any promissory court was bound, in justice. to look behind note, or other chose in action, in favor of an the charter of the bank defendant, in order to assignee, unless a suit might have been prose- determine the individual characters of the corcuted in such court to recover the said contents, porators defendants also. And the pleas were if no assignment had been made, except in so drafted as to exhibit to the court two cases of foreign bills of exchange.'

grounds on which to decide against the jurisThis is a limitation on the jurisdiction con- diction of the Circuit Court, as depending on ferred by the judiciary act. . It was apprehend- , individual character. The one was, that a citied that bouds and notes, given in the usual zen of one state was suing a citizen of the course of business, by citizens of the same same state; the other, that the state of Georstate, to cach other, might be assigned to the gia was a defendant, being a member of the corcitizens of another state, and thus render the poration defendant, and was exempt from suit maker liable to a suit in the federal courts. To under the 11th amendment. And on both remove this inconvenience, the act which gives these grounds, I see not how I can refuse my jurisdiction to the courts of the Union over assent to the doctrine of the pleas. The case suits brought by the citizen of one state against of Deceaux forms, I presume, one of the canthe citizen of another, restrains that jurisdic-ons of this court. On no other ground can tion, where the suit is brought by an assignee, that decision be law, but that the individual to cases where the suit might have been sus corporators were the real parties plaintiffs. The tained, had no assignment been made. But same principle, when applied to the corporation the bank does not sue in virtue of any right defendant, will make the individual corporators conferred by the judiciary act, but in virtue of here the real defendants to the suit. if, then, the right conferred by its charter. It does not the real plaintiffs and the real defendants are so sue because the defendant is a citizen of a dif- related in personal character, as to preclude ferent state from any of its members, but be this court from taking jurisdiction, I see no cause its charter confers upon it the right of ground on which we can sustain the demurrer, suing its debtors in a circuit court of the Unit- unless we reverse the decision in Dereaux's case. ed States.

So, also, with regard to the state of Georgia. If the Bank could not sue a person who was a An original suit against that state for the recitizen of the same state with any one of its mem-covery *of a debt, could not be main. (*912 bers, in the Circuit Court, this disability would tained. Yet, if an original suit against a cordefeat the power. There is, probably, not a poration be an original suit against each corcommercial state in the Union, some of whose porator, I see not wherein the case differs from 910*) citizens *are not members of the Bank that of a direct suit against the state. Suppose of the United States. There is, consequently, the case of a joint bond, given by a state and scarcely a debt due to the bank, for which a individuals, to an individual contractor, citizen suit could be maintained in a federal court, did of another state, what would except a suit on the jurisdiction of the court depend on citizen- such a bond from the operation of the 11th ship. A general power to sue in any circuit amendment of the constitution? If it be said court of the United States, expressed in terms that the amendment alluded to has regard only obviously intended to comprehend every case, to suits instituted against states in their soverwould thus be construed to comprehend no leign capacity, I would ask, in what other capacity can a state appear, or even exist? In the judiciary act on this subject. Whatever every possible form and shape, it is a sovereign difficulties may be suggested, on the technical state, or it is nothing. And this very stock, meaning of the term assignment, it is very held in this bank, is the property of the people clear that he who acquires a chose in action, of Georgia, held by them in the name and ca- by mere delivery, has been recognized in the pacity of the state of Georgia. If any dispute laws of the United States as an assignee. If were to arise on the title to the stock, in 'what any considerations could be introduced into the capacity could they sue or be sued for the in case, besides what the pleadings bring out, terest held by them in the stock, unless in their there might be *much reason to doubt, [*914 sovereign capacity? It is not because it im whether the case of bank bills, properly so parts its own immunities to the other stock called, and particularly so declared on, came holders, that this action cannot be maintained, within the general law applicable to promissory but because that the judicial power must reach notes; but here, non conxlat, that the notes de each and every defendant, in order to bring a clared upon were ever thrown into circulation, case within the prescribed limits of the consti. as the representative of property, as a currency, tution. Each defendant occupies his own pecul- a substitute for gold and silver. iar rank, claims his own peculiar immunities; But the case does not rest here. This ground but they are not suable in the courts of the Unit of defense depends not on a constitutional proed States, as long as any one of them is exempted vision, but on an act of Congress; and if it be from suit in those courts.

true that the unrestricted right to sue on all its I am here expressing a technical opinion, contracts be vested in the Bank of the United founded on the authority of the case of the States, whatever their origin, or whatever their 913*] The Bank v. * Deveaur. That decision amount, it follows that such a provision brings it strictly within the letter of the 11th amounts to a repeal of the law here relied on. amendment; although I am ready to admit I rather think that the improbability of such a that, unaffected by that decision, it is not with provision being intended by the legislature, in its purview. Although not responsible for operates against the construction that would that decision, I acknowledge its obligation, sustain it. But if such be the legal construcuntil overruled.

tion of the incorporating act, there can be no The last question which the pleadings in this doubt of its being fatal to this plea. cause present, arises out of the nature of the contract, the form of the declaration, and that CERTIFICATE.--This cause came on to be provision of the judiciary act, which precludes heard on the transcript of the record of the suits by an assignee of choses in action, when Circuit Court of the United States for the Disthe suit could not be brought in the courts of trict of Georgia, and on the questions in said the United States, as between the original cause, on which the judges of the said Circuit parties.

Court were divided in opinion, and was argued The plaintiff counts upon a number of prom- by counsel. On consideration whereof, this issory notes, payable to A, B, or bearer, com- court is of opinion, 1. That the averments in monly called bank notes, delivered to A, B, the declaration in 'said cause, are sufficient in and by him “transferred, assigned, and set law to give the said Circuit Court jurisdiction

to the plaintiffs in this action. The plea in said cause. states, that, as between the original promisor 2. That, on the pleadings in the same, the and promisee, suit could not have been brought plaintiffs are entitled to judgment. in the circuit courts of the United States; and, therefore, it cannot, as between the present Circuit Court.

All which is ordered to be certified to the said parties, the promisor and assignee. As all the facts are admitted by the demurrer, it is diffi. cult to see on what ground this case is to be ex- 551, 555; 15 How. 309; 8 Wall: 551; 9' Wall. 392 : 5

Cited-Pet. 323: 11 Pet. 324, 325-341, 349; ? How. cepted from the operation of the provisions of Bank. Reg. 242 ; 2 Brock. 401. 246

Wheat. 9.

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