V.

BANK U. S. of their own state permitted to sue, they are still citi DEVEAUX. Zens, and entitled to that substantial justice, and the benefit of those independent tribunals, which were intended to be secured by the federal constitution. The constitution does not speak of the name on recod; of the nominal party; it speaks of "controversies" "between citizens of different states." The question is not, what names appear upon the record, but between whom is the controversy; who are the real litigants.

In conformity with the spirit of the constitution, the federal courts have always inquired after the real parties. Although the nominal parties are really persons competent to sue in those courts, yet they will inquire into the cl.aracter of the real litigants, and if they find them unable to sue there, they will dismiss the suit. 4 Dal. 330. Mansfield's Lessee v. Levy. They will allow no fiction to give jurisdiction to the court where the substance is wanting. Can it be adn.itted then that they will allow the jurisdiction to be excluded by a name, if the substance exists which gives jurisdiction?

If a state be substantially a party, is the jurisdiction cut off if her agent brings a suit? The case of Fowler v. Lindsey, 3 Dul. 419. clearly implies the contrary.

It is the privilege of citizens of one state to have their controversies with citizens of another state tried in the federal courts. The constitution guaranties it to them. It cannot be taken away, because they are authorized to bring one joint suit in a particular name, instead of bringing it in the names of each individual. Their corporate name is given them as a benefit, and ought not to be converted into an injury. Besides, if the bank cannot sue, they cannot be sued in the federal courts; nor any other corporation. The consequence is, that if a citizen of Georgia would sue the bank of the United States, at Philadelphia, he must go into the state courts. If he would sue the corporation of Philadelphia, he must

sue in the state courts; nay, even in the county court BANK U. 5. of Philadelphia itself.

But it is not more a question of jurisdiction than of right. If you cannot inquire who are the members of a corporation, whenever a right depends upon the question of citizenship, that right cannot be enjoyed by a corporation.

If citizenship of the members cannot give jurisdiction, neither can their alienage. A corporation composed of aliens cannot sue in the federal courts. Neither the Eust-India Company, the Bank of England, nor even a sole corporation, such as the Chamberlain of London, can sue in those courts; ior in his corporate capacity he is not an alien.

An alien cannot sue a domestic corporation unless in the state courts. Although you permit an obscure alien to sue a citizen in the federal courts, yet you deny that privilege to a corporation consisting of a great number of aliens.

Again: by the constitution, the jurisdiction of the federal courts is to extend to 66 controversies between citizens of the same state, claiming lands under grants of different states;" yet a corporation of Pennsylvania claiming lands under Virginia, against a citizen of Pennsylvania claiming the same lands under Pennsylvania, must go into the courts of Pennsylvania, and cannot get into the federal

courts.

This would be a result clearly contrary to the intention and spirit of the constitution, which meant that no man claiming land by title adverse to a state should be obliged to resort to the courts of that state to try his title.

The argument from inconvenience is very strong. Lord Coke says plurimum valet. When other reasoning is nearly on an equipoise, it ought to turn the

scale.

V.

DEVEAUX.

BANK U. S.

v.

The court cannot consider the individual members DEVEAUX. as citizens for any purpose, if it cannot for that of jurisdiction.

How is it under the act of congress for registering vessels? Laws of the U. S. vol. 2. p 147. A corporation cannot hold an American registered vessel. An insurance company to whom an American vessel is abandoned must forfeit her register, although every member of that corporation be an American citizen. A foreign corporation, although composed entirely of aliens, may yet hold lands in this country, although an alien cannot.

3. The practice of the courts of the United States has been uniform and never questioned. This court has decided a great number of cases in which a corporation has been a party. It is no answer to these to say that there was no plea to the jurisdiction; for none was necessary. Whenever the court sees that it has not jurisdiction, or that its jurisdiction does not appear upon the record, it dismisses the suit. And in every case where a corporation is a party, the title of the suit alone was sufficient to give the court information.

But this point may be considered as almost, if not quite, decided by the case of The Bank of No, th America v. Turner, 4 Dal. 8. where the plaintiffs were described in the same manner as the present plaintiffs, and Ch. F. Ellsworth, in delivering the opinion of the court, says, "the plaintiffs are weld described as citizens of Pennsylvania."

The second objection is, that by no form of pleadings can the citizenship of the members be put in issue.

But if the citizenship be material, it may be averred; and if averred, it may be put in issue. The materiality of the averment is indeed the only question.

2. The second question upon this record is, whether the bank of the United States has not a peculiar right to sue in the federal courts?

This right depends upon two questions;

1. Whether congress could, under the constitution, give such a jurisdiction to the circuit courts? And, 2. Whether congress has given it?

1. The judicial power of the United States is coextensive with the legislative. It extends to all cases arising under the laws of the United States. Every case in which the bank of the United States is a party must be a case arising under those laws; for the only capacity which the bank has to sue or be sued is derived from a law of the United States. No contract can be made with the bank, no trespass can be committed upon its property, without involving the question of its existence as a corporate body, and of its rights, powers and duties, all of which depend upon the laws of the United States.

Congress, therefore, had a right to give to the circuit courts of the United States cognisance of all cases in which the bank should be a party.

2. Have they done it?

The 3d section of the act of congress which incorporated the bank, gave them the power and capacity to sue"" in courts of record, or any other place whatsoever."

If they have a right to sue in courts of record, can it be presumed that congress meant to exclude them from the courts of the United States? the only courts over whom congress could exercise any control, and to whom alone they could imperatively impart jurisdiction. If the bank has a capacity to sue in the circuit courts, the circuit courts are bound to take cognisance of their suits.

BANK U. S

V.

The presumption that congress meant to give DEVEAUX. Such jurisdiction to the circuit courts is fortified by the reasonableness of the jurisdiction, the extensiveness of the institution, and its character as an agent in the fiscal operations of the United States; by the danger of an attack from scme of the states; by the jealousies of state banks; by the inconvenience of discordant decisions upon the construction of their charter, and the certainty that all cases in which the bank is a party must involve questions arising under the laws of the United States.

P. B. Key, contra.

Two questions arise in this case.

1. Whether a body politic, a corporation aggregate, created by a law of the United States, is competent to sue in the circuit courts of the United States.

2. Does the averment of citizenship give jurisdiction to those courts.

1. The first point depends upon the constitution and laws of the United States.

The 2d section of the 3d article of the constitution designates the limits of judicial authority which congress could confer on the several courts of the United States, but it confers no powers on the circuit courts. It defines the limits which neither congress, nor the courts erected by congress, can transcend. It was within the discretion of congress to organize courts, and grant them powers to the whole extent of the constitution; but they were under no obligation to do it.

The question then, is, not what powers might congress give to the circuit courts, but what have they given.

By the judiciary law of 1789, vol. 1. p. 55. § 10. the circuit court has original cognisance of civil