board of commissioners; and annexes to the confirmation several conditions, which it is unnecessary to review, because the plaintiff does not claim to come within the provisions of the act. On the 3d of March, 1819, congress passed an act confirming all complete grants to land from the Spanish government, contained in the reports made by the commissioners appointed by the president for the purpose of adjusting titles which had been deemed valid by the commissioners; and also all the claims reported as aforesaid, founded on any order of survey, requete, permission to settle, or any written evidence of claim derived from the Spanish authorities, which ought in the opinion of the commissioners to be confirmed; and which by the said reports appear to be derived from the Spanish government before the 20th day of December, 1803, and the land claimed to have been cultivated or inhabited on or before that day.

Though the order of survey in this case was granted before the 20th of December, 1803, the plaintiff does not bring himself within this act.

Subsequent acts have passed in 1820, 1822, and 1826, but they only

confirm claims approved by the commissioners, among which the plaintiff does not allege his to have been placed.

Congress has reserved to itself the supervision of the titles reported by its commissioners, and has confirmed those which the commissioners have approved, but has passed no law, withdrawing grants generally for lands west of the Perdido from the operation of the 14th section of the act of 1804, or repealing that section.

We are of opinion, then, that the court committed no error in dismissing the petition of the plaintiff, and that the judgment ought to be affirmed with

costs.

This cause caine on to be heard on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, this court is of opinion that the said district court committed no error in dismissing the petition of the plaintiffs; therefore it is considered, ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed with costs.

In this case the question arose, whether the jurisdiction of the United States courts was taken away by the state's being the sole proprietor of the stock of the bank.

Mr. Nicholas, for the plaintiff's, insisted that the state was virtually the party on the record, and that the judgment of the court would operate directly on the state in its sovereign capacity.

Mr. Caswell replied for the defendants.

Mr. Justice Johnson delivered the opinion of the court, from which the following is extracted, as being all which relates to the above question.

The defendants here were plaintiffs

in the court below, in an action for money had and received, instituted to recover the amount of a deposite made in the bank of the commonwealth of Kentucky.

The defendants pleaded to the jurisdiction, on the ground that the state of Kentucky was sole proprietor of the stock of the bank, for which reason it was insisted that the suit was virtually against the sovereign state. To this plea the plaintiffs demurred, and the circuit court of Kentucky having decided in favour of its jurisdiction, that decision is made the first ground of error in the present suit.

But this court is of opinion that the question is no longer open here. The

case of the United States Bank vs. the Planters' Bank of Georgia,9 Wheaton, 904, was a much stronger case for the defendants than the present; for there, the state of Georgia was not only a proprietor but a corporator. Here the state is not a corporator, since by the terms of the act incorporating this bank, Kentucky acts of 1820, page 55, sec. 2, "the president and directors" alone constitute the body corporate, the metaphysical person liable to suit. Hence, by the laws of the state itself, it is excluded from the character of a party in the sense of the law when speaking of a body corporate.

On the subject of an interest in the stock of a bank, the language of this court, in the case cited, is this: "It is, we think, a sound principle, that when a government becomes a partner in any trading company, it devests itself, so far as it concerus the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself,

and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many states of the union which have an interest in banks, are not suable even in their own courts, yet they never exempt the corporation from being sued. The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act."

To which it may be added, that if a state did exercise any other power in or over a bank, or impart to it its sovereign attributes, it would be hardly possible to distinguish the issue of the paper of such banks from a direct issue of bills of credit; which violation of the constitution, no doubt the state here intended to avoid.

Mr. Price, and Mr. Sergeant for the plaintiff, Mr. Sutherland and Mr. Peters for the defendant.

Mr. Justice Washington delivered the opinion of the court.

This is a writ of error to the supreme court of Pennsylvania. An ejectment was commenced by the defendant in error in the court of common pleas against Elisha Satterlee, to recover the land in controversy, and upon the motion of the plaintiff in error, he has admitted as her landlord, a defendant to the suit. The plaintiff, at the trial, set up a title under a warrant dated the 10th, of January, 1812, founded upon an inprovement in the year 1785, which it was admitted was under a Connecticut title, and a patent bearing date the 19th of February,

1813.

The defendant claimed title under a patent issued to Wharton in the year 1781, and a conveyance by him to John F. Satterlee in April, 1812. It was contended on the part of the plaintiff, that admitting the defendant's title to be the oldest and the best, yet he was stopped from setting it up in that suit, as it appeared in evidence that he had come into possession as tenant to the plaintiff some time in the year 1790. The courts of common pleas decided in favour of the plaintiff, upon the ground just stated, and judgment was accordingly rendered for her Upon a writ of error to the supreme court of that state, that court decided, in June, 1825, 13 Serge. & Rawle, 133 that by the settled law of Pennsylvania, the relation of landlord and tenant could not subsist under a Connecticut

title; upon which ground the judgment was reversed, and a venire facias de novo was awarded.

On the 8th of April, 1826, and before the second trial of this cause took place, the legislature of that state passed a law in substance as follows, viz. "that the relation of landlord and tenant shall exist, and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between other citizens of this comnonwealth, on the trial of any cause now pending, or hereafter to be brought, within this commonwealth, any law or usage to the contrary notwithstanding."

Upon the retrial of this cause in the inferior court in May, 1826, evidence was given conducing to prove, that the land in dispute was purchased of Wharton by Elisha Satterlee, the father of John F Satterlee, and that by his direction the conveyance was made to the son. It further appeared in evidence, that the son brought an ejectment against his father in the year 1813, and by some contrivance between those parties, alleged by the plaintiff below to be merely colourable and fraudulent, for the purpose of depriving her of her possession, obtained a judgment and execution thereon, under which the possession was delivered to the plaintiff in that suit, who immediately afterwards leased the premises to the father for two lives, at a rent of one dollar per annum. The fairness of the transactions was made a question on the trial, and it was asserted by the plaintiff that, notwithstanding the eviction of Elisha Satterlee under the above proceedings, he still continued to be her tenant.

The judge, after noticing in his charge the decision of the supreme court in 1825, and the act of assembly before recited, stated to the jury the general principle of law, which prevents a tenant from controverting the title of his landlord by showing it to be defective, the exception to that principle where the landlord claims under a Connecticut title, as laid down by the above decision, and the effect of the act of assembly upon that decision,

which act he pronounced to be binding on the court. He therefore concluded, and so charged the jury, that if they should be satisfied from the evidence, that the transactions between the two Satterlees before mentioned, were bona fide, and that John F. Satterlee was the actual purchaser of the land, then the defendants might set up the eviction as a bar to the plaintiff's recovery as landlord. But that if the jury should be satisfied that those transactions were collusive, and that Elisha Satterlee was in fact the real

purchaser, and the name of his son inserted in the deed for the fraudulent purpose of destroying the right of the plaintiff as landlord; then the merely claiming under a Connecticut title, would not deprive her of her right to recover in that suit.

To this charge, of which the substance only has been stated, an exception was taken, and the whole of it is spread upon the record. The jury found a verdict for the plaintiff; and judgment being rendered for her, the cause was again taken to the supreme court by a writ of error.

The only question which occurs in this cause, which it is competent to this court to decide, is, whether the statute of Pennsylvania which has been mentioned of the 8th of April, 1826, is or is not objectionable, on the ground of its repugnancy to the constitution of the United States? But before this inquiry is gone into, it will be proper to dispose of a preliminary objection made to the jurisdiction of this court, upon the ground that there is nothing apparent on this record to raise that question, or otherwise to bring this case within any of the provisions of the 25th section of the judiciary act of

1789.

Questions of this nature have frequently occurred in this court, and have given occasion for a critical examination of the above section, which has resulted in the adoption of certain principles of construction applicable to it, by which the objection now to be considered may, without much difficulty, be decided. 2 Wheaton, 363. 4 Wheaton, 311. 12 Wheaton,

117. One of those principles is, that if it sufficiently appear from the record itself, that the repugnancy of a statute of a state to the constitution of the United States was drawn into question, or that that question was applicable to the case, this court has jurisdiction of the cause under the section of the act referred to; although the record should not, in terms, state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state to any part of that constitution was drawn into question.

Now it is manifest from this record, not only that the constitutionality of the statute of the 8th of April, 1826, was drawn into question, and was applicable to the case, but that it was so applied by the judge, and formed the basis of his opinion to the jury, that they should find in favour of the plaintiff, if in other respects she was entitled to a verdict. It is equally manifest that the right of the plaintiff to recover in that action depended on that statute; the effect of which was to change the law, as the supreme court had decided it to be in this very case in the year 1825. 13 S. & R. 133.

That the charge of the judge forms a part of this record is unquestionable. It was made so by the bill of exception, and would have been so without it, under the statute of the 24th of February, 1806, of that state; which directs, that in all cases in which the opinion of the court shall be delivered, if either party require it, it is made the duty of the judges to reduce the opinion, with their reasons therefor, to writing, and to file the same of record in the cause. In the case of Downing vs. Baldwin, 1 Serg. &, Rawle, 298, it was decided by the "supreme court of Pennsylvania, that the opinion so filed becomes part of the record, and that any error in it may be taken advantage of on a writ of error without a bill of exceptions.

It will be sufficient to add that this opinion of the court of common pleas was, upon a writ of error, adopted and affirmed by the supreme court; and it is the judgment of that court upon the

point so decided by the inferior court, and not the reasoning of the judges upon it, which this court is now called upon to revise.

We come now to the main question in this cause. Is the act which is objected to, repugnant to any provision of the constitution of the United States? It is alleged to be so by the counsel for the plaintiff in error, for a variety of reasons; and particularly, because it impairs the obligation of the contract between the state of Pennsylvania and the plaintiff, who claims title under her grant to Wharton, as well as of the contract between Satterlee and Matthewson ; because it creates a contract between parties where none previously exist ed, by rendering that a binding contract which the law of the land had declared to be invalid; and because it operates to devest and destroy the vested rights of the plaintiff. Another objection relied upon is, that in passing the act in question, the legislature exercised those functions which belong exclusively to the juidicial branch of the government.

Let these objections be considered. The grant to Wharton bestowed upon him a fee simple estate in the land granted, together with all the rights, privileges and advantages which, by the laws of Pennsylvania, that instrument might legally pass. Were any of those rights, which it is admitted vested in his vendee or alienee, disturbed, or impaired by the act under consideration? It does not appear from the record, or even from the reasoning of the judges of either court, that they were in any instance denied, or even drawn into question. Before Satterlee became entitled to any part of the land in dispute under Wharton, he had voluntarily entered into a contract with Matthewson, by which he became his tenant, under a stipulation that either of the parties might put an end to the tenancy at the termination of any one year. Under this new contract, which, if it was ever valid, was still subsisting and in full force at the time when Satterlee acquired the title of Wharton, he exposed himself to the

operation of a certain principle of the common law, which estopped him from controverting the title of his landlord, by setting up a better title to the land in himself, or one outstanding in some third person.

It is true that the supreme court of the state decided, in the year 1825, that this contract, being entered into with a person claiming under a Connecticut title, was void; so that the principle of law which has been mentioned did not apply to it. But the legislature afterwards declared by the act under examination, that contracts of that nature were valid, and that the relation of landlord and tenant should exist, and be held effectual, as well in contracts of that description, as in those between other citizens of the state.

Now this law may be censured, as it has been, as an unwise and unjust exercise of legislative power; as retrospective in its operation; as the exercise, by the legislature, of a judicial function; and as creating a contract between parties where none previously existed. All this may be admitted; but the question which we are now considering is, does it impair the obligation of the contract between the state and Wharton, or his alienee? Both the decision of the supreme court in 1825, and this act, operate, not upon that contract, but upon the subsequent contract between Satterlee and Matthewson. No question arose, or was decided, to disparage the title of Wharton, or of Satterlee as his vendee. So far from it, that the judge stated in his charge to the jury, that if the transactions between John F. Satterlee and Elisha Satterlee were fair, then the elder title of the defendant inust prevail, and he would be entitled to a verdict.

We are then to inquire, whether the obligation of the contract between Satterlee and Matthewson was impaired by this statute? The objections urged at the bar, and the arguments in support of them, apply to that contract, if to either. It is that contract which the act declared to be

valid, in opposition to the decision of the supreme court; and admitting the correctness of that decision, it is not easy to perceive how a law which gives validity to a void contract, can be said to impair the obligation of that contract. Should a statute declare, contrary to the general principles of law, that contracts founded upon an illegal or immoral consideration, whether in existence at the time of passing the statute, or which might hereafter be entered into, should nevertheless be valid and binding upon the parties; all would admit the retrospective character of such an enactment, and that the effect of it was to create a contract between parties where none had previously existed. But it surely cannot be contended, that to create a contract, and to destroy or impair one, mean the same thing.

If the effect of the statute in question, be not to impair the obligation of either of those contracts, and none other appear upon this record, is there any other part of the constitution of the United States to which it is repugnant? It is said to be retrospective. Be it so; but retrospective laws which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that in

strument.

All the other objections which have been made to this statute, admit of the same answer. There is nothing in the constitution of United States, which forbids the legislature of a state to exercise judicial functions. The case of Ogden vs. Blackledge came into this court from the circuit court of the United States, and not from the supreme court of North Carolina; and the question, whether the act of 1799, which partook of a judicial character, was repugnant to the constitution of the United States, did not arise, and consequently was not decided. It may safely be affirmed, that no case has ever been decided in this court, upon a writ of error to a state court, which affords the slightest countenance to this objection.