Marshall, John (1755-1835) Supreme Court Opinion, Osborn et al. v. the Bank of the U.S.

Osborne [sic] & al
v
The Bank of the U.S.

[struck: On the illegible of] [inserted: In] September 1819, a bill was [struck: filed in] presented to the circuit court of the United States for the District of Ohio [inserted: in name of the Bank of the U.S., signed by] gentlemen who were practising [sic] attornies [sic] at that bar, praying an injunction to restrain Ralph Osborne auditor of the state of Ohio, from [struck: levying on the property of the] [inserted: proceeding against the complainants] under an act passed [inserted: the proceeding February] by the [struck: state] legislature of the state, [struck: passed the preceding February,] entitled "an act to levy and collect a tax from all banks and individuals, and companies and associations of individuals that may transact banking business in this state without being authorized to do so by the laws thereof."
This act after reciting that the Bank pursued its operations contrary to a law of the state, enacted that if, after the first day of the following September, the said Bank or any other should continue to transact business within the state, it should be liable to an annual tax of $50000 on each office. And that, on the 15th day of [struck: Dec] [inserted: Sept]ember, the Auditor should charge such tax to the Bank, and should make out his warrant under his seal of office, directed to any person, commanding him to collect the said tax, who should enter the banking house and demand the same; and if payment be not made, should levy the amount on the money or other goods of the Bank; --the money to be retained; and the goods sold as if taken on a fi. fa. If no effects should be found in the Banking room, the person having the warrant was authorized to go into every room, vault, &c. and to open every chest &c. in search of what might satisfy his warrant.
The bill [struck: this] [inserted: after reciting this act] states that Ralph Osborne is the Auditor, and gives out in speeches that he will execute the law. It was exhibited in open court on the 14th. of September; and, notice of the application having been given to the defendant Osborne, an order was made awarding the injunction [inserted: on the execution of bond & security in the penalty of $100,000;] after which a subpo[e]na was issued, on which [struck: was indorsed] [inserted: the order] that had been made for the injunction was indorsed by the attorneys for the plaintiff; and a memorandum that bond with security had been given by the plaintiff was indorsed by the clerk; and a power to James MDowell to save the same was indorsed by the Marshal. It appears [2] from the affidavit of MDowell that both the subpo[e]na and indorsement were served on Ralph Osborne early in the morning of the 15th. On the 18th of the same month of September a writ of [struck: subpo[e]na] [inserted: injunction] was issued on the same bill which was served on the same day on Ralph Osborne, and on John L. Harper. The affidavit of MDougal states that he served the writ on Harper while on his way to Columbus with the money and funds which were the subject matter on which the same were to operate as he understood; and that the writ was served on Osborne before Harper reached Columbus.
In September 1820 leave was given to file a supplemental and amended bill, and to make new parties.
This bill charges that subsequent to the service of the subpo[e]na and injunction [inserted: to wit] on the 17th of Sept. 1819, John L. Harper, who was employed by Osborne to collect the tax [inserted: and well knew that an injunction had been allowed,] proceeded by violence to the office of the Bank at Chilicothe, and took therefrom $100000 in specie and bank notes belonging to or in deposite [sic] with the complainants. That this money was delivered either to H.M Curry, who was then Treasurer of the state, or to the defendant Osborne, both of whom had notice of illegal seizure, and paid no consideration for the amount, but received it to keep on safe deposit. That Curry did keep the same until he delivered it over to one Samuel Sullivan, --his successor as Treasurer. That neither Curry nor Sullivan held the said money in their character as Treasurer, but as individuals. The bill prays that the said H.M. Curry late Treasurer, Samuel Sullivan the present Treasurer and Ralph Osborne in their official and private characters, and the said John L. Harper may be made defendants, that they may make discovery, and may be [struck: illegible to return] [inserted: enjoined from using or paying away] the coin and notes taken from the bank, [inserted: may be decreed to restore the same] and may be enjoined from proceeding further under the the [sic] said act.
The defendant Curry filed his answer admitting that the defendant Harper delivered to him about the 20th. of September 1819 the sum of $98000 which he was informed and believed was a tax levied of the Branch Bank of the United States. He passed this sum to the credit of the state as revenue; but kept it separate in fact from other money, until January or February 1820 when the monies in the treasury were seized upon by a committee of the House of Representatives, soon after which he [3] resigned his office and the monies and bank notes in the bill mentioned, still separate from other monies in the Treasury, came to the hands of S. Sullivan, the present Treasurer, who gave a receipt for the same.
The defendant Sullivan failing to answer an attachment for contempt was issued on which he was taken into custody. He then filed his answer and was discharged.
This answer denies all personal knowledge of the levying collecting and paying over the money in the bill mentioned. It admits that he was appointed Treasurer as successor of Curry, on the 17th. of Feb. 1820, and that he entered the Treasury on the 23d and began examining the funds, among which he found the sum of $98000 which he understood was the same that is charged in the bill, but this he does not know of his own knowledge. He gave a receipt as Treasurer, and the money has remained in his hands as Treasurer and not otherwise. The sum of $98000 remained untouched out of respect for an injunction said to have been allowed [struck: illegible] [inserted: by the circuit court on a] bill since dismissed. He admits the sum in his hands to correspond with the description in the bill so far as that description goes, and annexes a schedule of the residue to his answer. He has no individual interest in the money and holds it only as state Treasurer. Admits notice from general report and from the late Treasurer that the said sum of $98000 was [struck: collected] [inserted: levied] as a tax from the Bank, and that the Bank alleged it to be illegal and violent.
The cause came on [inserted: to be heard] upon these answers and upon the decrees nisi against Osborne and Harper; [struck: when a decree was] [inserted: and the court] pronounced [inserted: a decree] directing them to restore to the Bank the sum of $100000, with interest on $19830, the amount of the specie in the hands of Sullivan. From this decree an appeal was prayed to this court.
At the close of the argument a point was suggested of such vital importance as to induce the court to request that it might be particularly spoken to. That point is, the [struck: power of Congress to illegible] [inserted: right of] the Bank to sue in 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. [4]
The appellants contest the jurisdiction of the court on two grounds
1st. That the act of Congress has not given it.
2d. That, under the constitution Congress cannot 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 [struck: enabled] "made able and capable in law" "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all state courts having competent jurisdiction, and in any circuit court of the United States."
These words seem to the court to admit of but one interpretation. They cannot be made plainer by explanation. They give expressly the right "to sue and be sued", "in [struck: the] any circuit court of the United States," and it would be difficult to substitute other terms which would be more direct and appropriate for the purpose. The argument of the appellants is founded on the opinion of this court in the Bank of the United States v Deveaux, Cranch [blank in original] 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 [inserted: federal] courts. [struck: of the United States.] The words of [inserted: the 3d. sec. of] that act [struck: were] [inserted: are] that the Bank [struck: might] [inserted: may] "sue and be sued" &c. "in courts of record, or any other place whatsoever." The court was of opinion that these general words, which are usual in all acts of incorporation, gave only a general [struck: right] [inserted: capacity] to sue, not a particular privilege to sue in the courts of the United States; and this opinion was strengthened by the circumstance that the 9th. rule of the 7th. Sec. [inserted: of the same act,] subjects the Directors, in case of excess in contracting debt, to be sued in their private capacity "in any court of record of the United States, or either of them." The express grant of jurisdiction to the federal courts in this case was considered as having some influence on the construction of the general words of the 3d. Sec. which does not mention those courts. Whether this decision [struck: was] [inserted: be] right or wrong, it amounts only to [struck: their] [inserted: a declaration] that a general [struck: power] [inserted: capacity in the Bank] to sue, without mentioning the courts of the Union, [struck: does] [inserted: may] not give a right to sue in those courts; To infer from [struck: it] [inserted: this] that words expressly conferring a right to sue in those courts does not give the right, is surely a conclusion which the premisses [sic] do not warrant.
The act of incorporation then confers jurisdiction on the circuit courts of the United States, if Congress can confer it.
2d. We will now consider the constitutionality of the clause in the act [inserted: of] incorporat[inserted: ion] [struck: -ing the Bank] which authorizes the Bank to sue in the [5][struck: circuit] [inserted: federal] courts [struck: of the United States].
In support to this clause it is said that the [struck: act being within the legislative powers of the] [inserted: Legislative, Executive and Judicial powers of every well constructed] government, [inserted: are] coextensive with [struck: its legislative. That] each other. That is, they are potentially coextensive. [struck: As] 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. [struck: Every] [inserted: All] governments which [struck: is] [inserted: are] not extremely defective in [struck: its] [inserted: their] organization, must possess within themselves the means of expounding as well as enforcing their own laws. If we examine the constitution of the United States we find that its framers kept this great [inserted: political] principle in view. The 2d. art. vests the whole executive power in the President; and the 3d. declares that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the Unites States, and treaties made or which shall be made under this authority."
This clause enables judicial department to receive jurisdiction to the full extent of the constitution, laws, & treaties, of the United States, when any question respecting them [inserted: 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 [struck: in the form prescribed] by a party who asserts [struck: their respective] [inserted: his] rights in the [struck: forms] 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 United States.
The suit of the Bank of the United States v Osborne and others is a case, 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 law, not on any act of Congress.
If this were sufficient to [struck: exclude] [inserted: withdraw a case from] the jurisdiction of the federal courts, [struck: scarcely any cases] [inserted: almost every case though involving the construction of a law] would be withdrawn; and a clause in the constitution relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be construed to mean almost nothing. There is scarcely any case, every part of which depends on [inserted: the constitution, laws, or treaties] [struck: a law]of the United States. The questions whether the fact alleged as the foundation of the action be real [6] or fictitious, whether the conduct of the plaintiff has been such as to entitle him to maintain his action, whether his right is barred, whether he has received satisfaction, or has in any manner released his claim, are questions some or all of which may occur in almost every case; and if this existence be sufficient to arrest the jurisdiction of the court, words which seem intended to be as extensive as the constitution [struck: and] laws, and treaties of the union, which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals would be reduced to almost nothing.
In those cases [struck: to] [inserted: in] which [struck: the] original jurisdiction [inserted: is given to] [struck: of] 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 [inserted: or both] as the wisdom of Congress may direct. With the exception of those cases in which original jurisdiction is given to this court, there is none [struck: case] to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution. Original jurisdiction, so far as the constitution gives a rule, is coextensive with the judicial power. We find in the constitution no prohibition to its exercise [struck: by this court, or by the inferior courts] in every case in which the judicial power can be exercised. It would be a very bold construction to say that this power could be applied in its appellate form [inserted: only,] to the most important class of cases to which it is applicable.
The constitution establishes the supreme court and defines its jurisdiction. It [struck: dis] enumerates cases in which its jurisdiction is original and exclusive; and then defines [struck: it] [inserted: that which is] appellate, [struck: jurisdiction,] but does not insinuate that in any such case the power cannot be exercised in its original form by courts of original jurisdiction. [inserted: 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 controul, 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 [struck: the power of our] [inserted: 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 [struck: de-] [inserted: in-]volves questions depending on general principles? [7] A cause may depend on several questions of fact and law. Some of these may depend on [inserted: the construction of] a Law of the United States, others on principles unconnected with that law. If [inserted: it be a sufficient foundation for jurisdiction] [struck: the circumstance] that the title or right set up by the party may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction provided the facts necessary to support the action be made out, [struck: be a sufficient foundation for jurisdiction] then all the other questions must be decided as incidental to this [struck: question] which gives that jurisdiction. Then other questions cannot [struck: oust the jurisdiction suspend] arrest the proceedings. Under this construction the judicial power of the union extends effectively and beneficially to that [inserted: most] important class of cases which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution, but to those parts of cases only which present the particular question involving the construction of the constitution or the law. We say it never can be extended to the whole case, because, if the circumstance that other points are involved in it shall disable congress from [struck: enabling] [inserted: authorizing] the courts of the Union to take jurisdiction of the original cause, it equally disables congress from [struck: enabling] [inserted: authorizing] those courts to take jurisdiction of the whole cause on an appeal; and thus words which in this plain sense apply to a [inserted: whole] cause, will be restricted to a single question in [struck: a] [inserted: that] cause, [struck: of securing to those who claim rights under the constitution, laws, {struck: and} {inserted: or} treaties of the United States] and words obviously intended to secure to those who claim rights under the constitution laws or treaties of the United states a trial in the federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal into which he is forced against his will.
We think then that where a question to which the judicial power of the Union [inserted: 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 [8] being can [struck: have] [inserted: 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 meer [sic] creature of [inserted: a] law, but all its actions and all its rights are dependent on the same law. Can a being thus constituted have a case which does not arise literally as well as substantially under the 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 law of the United States. The next question is, has this being a right to make this particular contract? If this question be decided in the negative, the cause is determined against the plaintiff; and this question to[o] depends entirely on a law of the United States. These are important questions and they exist in every possible case. The right to sue, if decided once is decided forever; but the power of Congress was exercised antecedently to [struck: its] [inserted: the] first decision on that right, and if it was constitutional then it cannot cease to be so, because the particular question is decided. It may be revived at the will of the party and most probably would be renewed were the tribunal to be changed. But the question respecting the right to make a particular contract, or to acquire a particular [struck: right] property, or to sue [struck: for] [inserted: on account of] a particular injury, [struck: may] belongs to every particular case, and may be renewed in every case. The question forms an [struck: ingredient original] original ingredient in every cause. Whether it be in fact relied on or not in the defence, it is still a part of the cause and may be relied on. The right of the plaintiff to sue cannot depend on the defence which the defendant may chuse [sic] to set up. His right to sue is anterior to that defence, and must depend on the state of things when the action is brought. The questions which the case involves then, must determine its character, whether those question be made in the cause or not.
The appellants say that the case arises in the contract, but the validity of the contract depends on a law of the United States and the plaintiff is compelled in every case to show its validity. The case arises emphatically under the law. The act of Congress is its foundation. The contract could never have been made but under the authority of that act. The act itself is the first ingredient in the case, is its origin, [9] is that from which every other part arises. That other questions may also arise, as the execution of the contract, or its performance, cannot change the case or give it any other origin than the charter of incorporation. The action [inserted: still] originates in and is sustained by that charter.
The clause giving the Bank a right to sue in the circuit courts of the United Sates stands on the same principle with [struck: such][inserted: this] act authorizing officers of the United States who sue in their own names, to sue in the courts of the United States. The Post Master General for example, cannot sue under that part of the constitution which gives jurisdiction to the federal courts in consequence of the character of the party, nor is he authorized to sue by the judicial 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 [struck: suit] [inserted: case], because that suit too is [inserted: itself authorized, and is] brought on a contract authorized, by a law of the United States. It depends absolutely on that law, and cannot exist a moment [struck: independent of] [inserted: without] its authority.
If it be said that [struck: the cause] [inserted: a suit brought by the Bank] may 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 Post Master General. The plea in bar may be payment, if the suit be brought on a bond, or nonassumpsit if it be brought on an open account, and no other question may arise than what respects the complete discharge of the demand. Yet the constitutionality of the act authorizing the Post Master General to sue in the courts of the United States, has never been drawn into question. It is sustained singly by an act of congress standing on that construction of the constitution which [struck: says] asserts the right of [struck: congress] [inserted: the legislature] to give original jurisdiction to the circuit courts in cases arising under a law of the United States.
The clause in the patent law authorizing suits in the circuit courts stands we think on the same principle. Such a suit is a case arising [10] 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 not violated the right of the plaintiff. That this fast 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 a law of the United States.
It is said that a clear distinction exists between the party and the cause; that the party may originate under a law with which the cause has no connexion [sic], and the Congress may with the same propriety give a naturalized citizen who is the new creature of law a right to sue in the courts of the United States as give that right to the Bank.
This distinction is not denied; and if the act of Congress was a simple act of incorporation, and contained nothing more, [struck: the distinction] [inserted: it] might be entitled to great consideration. But the act does not stop with incorporating the Bank. It proceeds to bestow upon the [inserted: being it has made] all the faculties and capacities which [struck: it] [inserted: 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 act does not proceed to give, to regulate or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, [struck: under] [inserted: in the view of] the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The 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 takes 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 which a native might sue. He is distinguishable in nothing from a native citizen except so far as the constitution makes the distinction. The law makes none.
There is then no resemblance between the act incorporating the Bank, and the general naturalization law.
Upon the best consideration we have been enable to bestow on this [11] subject we are of opinion that the clause in the act of incorporation enabling the Bank to sue in the [inserted: courts of the] United States is consistent with the constitution and to be [struck: respected] [inserted: obeyed] in all courts.
We will now proceed to consider the merits of the cause.
The appellants contend that the decree of the circuit court is erroneous, [struck: because]
1st. Because no authority is shown in the record from the Bank, authorizing the institution or prosecution of the suit.
2d. Because as against the defendant Sullivan, there are neither proofs nor admissions sufficient to sustain the decree.
3d. Because upon equitable principles the case made in the bill does not warrant a decree against either Osborne or Harper for the amount of coin and notes in the bill specified to have passed through their hands.
4th. Because the defendants are decreed to pay interest upon the coin when it was not in the power of Osborne or Harper, and was stayed in the hands of Sullivan by injunction.
5th. Because the case made in the bill does not warrant the interference of a court of chancery by injunction or otherwise.
6th. Because if any case is made in the bill proper for the interference of a court of chancery, it is against the state of Ohio, in which case the circuit court could not exercise jurisdiction.
7th. Because the decree assumes that the Bank of the United States is not subject to the taxing power of the State of Ohio, and decides that the law of Ohio, the execution of which is injoined [sic], is unconstitutional.
These points will be considered in the order in which they are made.
1st. It is admitted that a corporation can only appear by attorney, and it is also admitted 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 Paterson and [blank in original] is supposed to apply to this case and to show that the seal may be dispensed with. It is however [12] 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 might appear in court either by themselves or by their attorney; but no man has the 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 of things no prima facie evidence that one man is in fact the attorney of another. The case of an attorney at law, an attorney for the purpose of representing another in court, and prosecuting or defending a suit in his name is somewhat different. The power must indeed exist, but its production has not been considered as indispensable. Certain gentlemen, first licensed by government are admitted by order of court to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in the cause, has always been [struck: consider] [inserted: received] as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice we believe has existed from the first establishment of our courts and no departure from it has been made in [struck: the courts] [inserted: those] of any state or of the union.
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. [struck: The] [inserted: 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 [struck: person] [inserted: individual] professing to represent him has authority to do so, which would be required if he were incapable of appearing in person. [struck: If any distinction could be drawn between the cases, it would be founded on the suppo-] 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 as for a natural person. Were it even other wise; the practice is as uniform and as ancient with regard to corporations as to natural persons. No case has ever occurred, so far as we are informed, in which the production of a warrant of attorney has been supposed a necessary preliminary to the appearance of a corporation [13] [inserted: either as plaintiff or defendant,] by a gentleman admitted to the bar of the court. The usage then is as full authority for the case of a corporation as of an individual. If this usage ought to be altered it should be by a rule to operate prospectively, not by the reversal of a decree pronounced [inserted: in conformity with the general course of the court] in a case in which no doubt of the legality of the appearance had ever been suggested.
In the statutes of jeofails and amendment which respect this subject, the [struck: want] [inserted: non] appearance of a warrant of attorney in the record has generally been treated as matter of form, and the 32d. sec. of the judicial act may [struck: be] very well be construed to comprehend this formal defect in its general terms, in a case at law. [struck: In this respect] No reason is perceived why the courts of chancery should be more rigid in exacting the exhibition of a warrant of attorney than a court of law; and, since the practice has, in fact, been the same in both courts, an appellate ought, we think, to be governed in both by the same rule.
2d. The second point is one on which the productiveness of any decree in favor of the plaintiffs most probably depends; for, if the claim be not satisfied with the money found in possession of Sullivan, it is at best uncertain whether a fund out of which it can be satisfied is to be found elsewhere.
In inquiring whether the proofs or admissions in the cause be sufficient to charge Sullivan, the court will [struck: consider] [inserted: look into] the answer of Currie as well as into that of Sullivan. [struck: As] 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 one defendant succeeds to another, 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 exr. or admr., 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 fortiori he would, if made a party, be bound by the testimony [struck: in which] [inserted: taken against] the [struck: decree was pronounced] [inserted: vendor].
In this case, if Currie received the money taken out of the Bank and passed it over to Sullivan, the establishment of this fact in a suit against Currie would seem to bind his successor Sullivan both as a privy in estate and as a person getting possession [14] 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 the Bank, the fast seems to bind all those coming in under him as completely as it binds himself. This therefore appears to the court to be a case in which, upon principle, the answer of Currie may be read.
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 $98000, which he was informed and believed to be the money levied on the Bank [inserted: as a tax,] in pursuance of the law of the state of Ohio. After consulting council on the question whether he ought to retain this sum within his individual controul, or pass it to the credit of the state on the books of the treasury, he adopted the latter course, but retained it carefully 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 and 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 $98000 delivered by Harper to Currie were taken out of the Bank. Currie understood & believed it to be 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 [struck: strong and plain] [insert: irresistible] that he derived it from his own knowledge of circumstances, for they were all 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 business, brings with him to the Treasurer of the state a sum of money which by [inserted: the] law was to be taken out of the bank, pays him $98000 thereof, which the treasurer receives and keeps as being [struck: the] money [struck: to] taken from the Bank, and so enters it on the books of the Treasury. In a suit brought against W. Currie for this money by the state of Ohio, [struck: for this money] if he had failed to account for it, could any person [struck: have] doubt [struck: -ed] the competency of the testimony to charge him? We think no mind could hesitate [struck: respecting] [inserted: in such a] case.
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.
[15] Sullivan denies all personal knowledge of the transaction. [inserted: That is, he] [struck: the] was not in office when it took place, and was not present when the money was taken out of the Bank, [struck: and] [inserted: or] when it was delivered to Currie. But when he entered the Treasury office he received this sum of $98000, 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?
W. Currie as Treasurer of the state of Ohio received $98000 as being the amount of a tax imposed by the legislature of that state on the Bank of the United States, enters the same on the books of the Treasury, and, the legality of the act by which the money was levied being questioned, puts it in a trunk & keeps it apart from the other money belonging to the public. He resigns his office and is succeeded by Mr. Sullivan to whom he delivers the money informing him at the same time that it is the money raised from the Bank, and Mr. Sullivan continues to keep it apart, and abstains from the use of it out of respect to an injunction forbidding him to pay it away or in any manner to dispose of it. Is it possible to doubt the identity of the money?
[struck: 3d. The next objection respects the decree against Osborne and Harper against whom the bill was taken for confessed.]
[struck: The bill charges that the defendant Osborne employed the defendant Harper to collect the tax, who entered the office of discount and deposit at Chilicothe, and forcibly took therefrom $60000 though he knew at the time that an injunction had been allowed; which money was delivered either to Currie or Osborne.] Even admitting that the answer of Currie, though establishing his [struck: own] liability as to himself, could not prove even that fact as to Sullivan, the answer of Sullivan is itself sufficient we think to charge him. He admits that the [struck: money was] [inserted: $98000 were] delivered [inserted: to him] as being the money which was taken out of the Bank, and that he so received it; [struck: Third] for he says that 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 [16] 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 $98000, but that he received $98000 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 be sufficient to throw on the defendant the burthen of proving that the money which he acknowledges himself to have received and kept as the money of the plaintiff, was not that which it was declared to be on its delivery. [struck: The] [inserted: A] declaration accompanying the delivery, and constituting a part of it, gives a character to the transaction, and is not to be placed on the same footing with a declaration made by the same person at a different time. The answer of Sullivan [struck: is suff-] then is, in the opinion of the court sufficient to show that these [struck: sum of money] $98000 were the specific dollars for which this suit was brought. This sum having come to his possession with full knowledge of the fact, in a separate trunk, unmixed with other money, and with notice that an injunction had been awarded respecting it, he would seem to be responsible to the plaintiff for it, unless he can show sufficient matter to discharge himself.
3d. The next objection is to the decree against, Osgood [sic] and Harper, [struck: respecting] [inserted: as to] whom the bill was taken for confessed.
The bill charges that Osborne employed John L. Harper to collect the tax who proceeded by violence to enter the office of discount and deposite at Chilicothe and forcibly took therefrom $100000 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 Osborne.
So far as respects Harper and Osborne these allegations are to be considered as true. If the act of the legislature of Ohio, and the official character of Osborne, constitute defence, neither of these defendants are liable, and the whole decree is erroneous; but if the act be unconstitutional and void, it can be no justification, and both these defendants are to be considered as individuals who are answer- [17] able to the laws. Considering them, for the present, in this character, the fact as made out in the bill is that Osborne employed Harper to do an illegal act, and that Harper has done that act. That they are jointly responsible for it is supposed to be as well settled as any principle of law whatever.
We think it unnecessary in this part of the case to enter into the enquiry 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.
4th. The next objection is to the allowance of interest on the coin which constituted a part of the sum [struck: which] [inserted: decreed to] the complainants.
[struck: claimed] 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 controul of the party [inserted: in possession] while the right was in litigation. But the subject was not let under the controul of the party. The court itself interfered, and forbad 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 situation, so far as respects in[te]rest, as if the court had taken the money into [struck: his] [inserted: its] own custody. The defendant, in obeying the mandate of the court, becomes its instrument as entirely as the Clerk of the court would have been, had the money been placed in his hands. It does not appear reasonable that a decree which proceeds upon the idea that the injunction of the court was valid ought to direct interest to be paid on the money which that injunction restrained the defendant from using [18]
5th. The 5th. objection to the decree is that the case made in the bill does not warrant the interference of a court of chancery.
In examining this question, it is proper that the court should consider the real case, and its actual circumstances. The [struck: injunction is prayed] [inserted: original bill prays for an injunction] against Ralph Osborne 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 enquiry is whether an injunction can be issued to restrain a person who is a state officer from performing any official act enjoined by statute [inserted: and whether a court of equity can decree {struck: the} restitution if the act be performed]. In pursuing this enquiry it must be assumed, for the present, that the act is unconstitutional, and furnishes no authority or protection to the officer who is about to proceed under it. This must be assumed [struck: for the present] because in the arrangement of his argument, the counsel who opened the cause has chosen to reserve that point for the last, and to continue that, though the law be void, no one case is made out against the defendants. We [struck: dismiss] [inserted: suspend] also the consideration of the question whether the interest of the state [struck: of] [inserted: of] Ohio as disclosed in the bill [inserted: shows a want of jurisdiction in the circuit court which] ought to have arrested its proceedings. That question too is reserved by the [struck: plain] appellants, and will be subsequently considered. The [inserted: sole] [struck: present] enquiry [inserted: for the present, is,] whether, stripping the case of these objections, the plaintiffs below were entitled to relief in a court of equity against the defendants and to the protection of an injunction. The appellants expressly waive the extravagant proposition that a void act can afford protection to the person who executes it, and admits the liability of the defendants to the plaintiffs to the extent of the injury sustained, in an action at law. The question then is reduced to the single enquiry whether the case is cognizable in a court of equity. If it is, the decree must be [struck: sustained] [inserted: affirmed] so far as it is supported by the evidence in the cause.
The appellants allege that the original bill contains no allegation which can justify the application for an injunction, and that the declarations of Ralph Osborne, the auditor, that he should execute the law, as the light and frivolous threats of an individual that he would commit an ordinary [19] 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 a law for the avowed purpose of expelling the Bank from the state, [struck: of Ohio] and had made it the duty of the Auditor to execute it, as a ministerial officer. He had declared that he would perform this duty. The law, if executed, would unquestionably effect its object, and would deprive the Bank of its chartered privileges, so far as they were to be exercised in that state. It must expel the Bank from the state; and this is we think, a conclusion which the court might rightfully draw from the law itself. That the declaration of the Auditor would be fulfilled, did not admit of reasonable doubt. It was to be expected that a person continuing to hold an office would perform a duty injoined by his government which was completely within his power. This duty was to be repeated until the Bank should abandon the excercise of its chartered rights.
To treat this as a common casual trespass would [struck: in the opinion of the court,] be to disregard entirely [struck: the] [inserted: its true character and] substantial merits [struck: of the cause]. The application to the court was, [struck: not] 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 [struck: from in the enjoyment] [inserted: from the total destruction] of its franchise, of its chartered privileges [struck: from total destruction] so far as respects 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 expulsion of the bank from the state [struck: of Ohio]. An annual charge of $100000 would [struck: render the privilege] more than absorb all the advantages of the privilege, and would [struck: completely] [inserted: consequently] annul it.
The appellants admit that injunctions are often awarded for the protection of parties in the enjoyment of a franchise; but deny that one has ever been granted in such a case as this. But, although the precise case may never have occurred, if the same principle applies, the same remedy ought to be afforded. The [struck: cases which have most frequently occurred are those in which an attempt has been made to] [inserted: interference of the court in this class of cases has {struck: been} most frequently been to restrain a person from] violating an exclusive privilege by participating in it. But if, instead of a continued participation in the privilege, the attempts be to disable the party from using it, is not the reason for the interference of the court rather strengthened than weakened? Had the [20] privilege of the Bank been exclusive, the argument admits that any other person or company might have been injoined, according to the regular course of a court of chancery, from using or exercising the same business. Why would [struck: to] [inserted: such person or company] have been enjoined? [struck: Because illegible] [inserted: To prevent] a permanent injury [inserted: from being done] to the party entitled to the franchise or privilege, which injury, the appellants say, cannot be estimated in damages. It requires no argument to prove that the injury is greater if the whole privilege be destroyed than if it be divided; and, so far as respects [struck: his] [inserted: the] estimate of damages, although precise accuracy may not be attained, yet a reasonable calculation may be made of the amount of the injury so as to satisfy the court and jury. It will not be pretended that, in such a case, an action at law could not be maintained, or that the materials do not exist on which a verdict might be found, and a judgement rendered. But in this, and many other cases of continuing injuries, as in the case of repeated ejectments, a court of chancery will interpose. The injury done by denying to the Bank the exercise of its franchise in the state of Ohio is as [struck: little] difficult to calculate as the injury done by participating in an exclusive privilege. The single act [inserted: of levying the tax in the first instance] is the cause of an action at law, but that affords a remedy only for the single act, and is not equal to the remedy in chancery which prevents its repetition, and protects the privilege. The same conservative principle which induces the court to interpose its authority for the protection of exclusive privileges, to prevent the commission of waste, even in some cases of trespass, and in [struck: almost all] [inserted: many] cases of destruction, will, we think, apply to this. Indeed trespass is destruction where there is no privity of estate.
If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the [struck: proper] [inserted: real] party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not [inserted: make a] decree unless all those [struck: parties] who are substantially interested be [struck: brought] [inserted: made] parties 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 above [21] the law, be exempt from all judicial process, it would be subversion of the best established principles to say that the laws could not afford the same remedies against the agents employed in doing the wrong which they would afford against him could his principal be joined in the suit. It is admitted that the privilege of the principal is not communicated to the agent, for the appellants acknowledge that an action at law would lie against the agent in which full compensation ought to be made for the injury. It being admitted then that the agent is not privileged by his connexion [sic] with his principal, that he is responsible for his own act to the full extent of the injury, why should not the preventive power of the court also be applied to him? [inserted: Why may it not restrain him from the commission of a wrong which it would punish him for committing?] [struck: We put out of view] We put out of view the character of the principal as a sovereign state because that is made a distinct point, and consider the question singly as respects the want of parties. Now if the party before the court would be responsible for the whole injury, why may he not be restrained from its commission if no other party can be brought before the court.[?] The appellants found this distinction on the legal principle that all trespasses are several as well as joint. [inserted: Without enquiring into the validity of this reason if true, we ask if it be true?] [struck: But] Will it be said that the action of trespass is the only remedy given for this injury? Can it be denied that an action on the case for money had and received to the plaintiffs use might be maintained? We think it cannot: [struck: there no] and if such an action might be maintained, no [struck: possible] [inserted: plausible] reason suggests itself to us for the opinion that an injunction may not be awarded to restrain the agent, with as much propriety as it might be awarded to restrain the principal, could the principal be made a party.
[struck: But, {struck: could}{inserted: were} it ever to be {struck: maintained} {inserted: admitted that} the injunction 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 has been pronounced. The question is whether upon that bill and the proceedings which have]
We think the reason for an injunction is much stronger in the [22] 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 [struck: as] [inserted: 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 real in it. It would be a remedy in name only, not in substance. This alone would in our opinion be a sufficient reason for the interference of 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 [struck: original] injunction [inserted: 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 they make is that the money and notes of the plaintiff [inserted: in the circuit court,] have been taken from them without authority, and are in possession of one of the defendants, who keeps them separate and apart from all other money and notes. It is admitted that this defendant would be liable for the whole amount in an action at law; but it is denied that he is liable in a court of equity.
We think it a case in which a court of equity ought to interpose, and that there are moral grounds on which its jurisdiction may be placed.
One which appears to us 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 be lost to the owner. Thus [inserted: the holder of] negotiable securities indorsed [struck: according to the] [inserted: in the usual manner,] if he has acquired them fraudulently, will be injoined from negotiating them, because if negotiated, the maker or indorser must pay thema. [a1st. Maddock 154.5] Thus [inserted: too] a transfer of stock will be restrained in favor of a person having the real property in the article. In these cases the injured party would have his [23] remedy at law, and the probability 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 [struck: to] in such cases, to avert 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 money in the treasury and put into circulation would be totally lost to the owner, and the reason for an injunction is at least as strong in such a case as in the case of a negotiable note.
6 We proceed now to the 6th. point made by the appellants which is, that if any case is made in the bill proper for [inserted: the interference of] a court of chancery, it is against the state of Ohio, in which case the circuit court could not exercise jurisdiction.
The bill is brought, it is said, for the purpose of protecting the bank in the exercise of a franchise granted by [struck: the] [inserted: 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 a controversy between the Bank & the state of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court [inserted: though not directed against the state by name] acts directly upon it by restraining its officers. The process therefore is substantially [struck: against] 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 presence of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the state [inserted: in the suit as brought] is admitted, and, had it been in the power of the Bank to make [inserted: it] [struck: the state] a party, [inserted: perhaps] no decree [struck: could] [inserted: ought to] have been pronounced in the cause until the state was before the court. But this was not in the power of the Bank. [inserted: The 11th. amendment of the constitution has exempted a state from the suits of citizens from other states, or aliens,] and the very difficult question is to be decided whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands.
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 [24] objection prevail.
A denial of jurisdiction forbids all enquiry 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 in itself because repugnant to the constitution, may avert the execution of any law of the United States. It maintains that if a state shall [struck: maintain] impose a fine or penalty on any person employed in the execution of any law of he United States, it may levy that fine 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 collecter of the revenue, the marshal of a district, the recruiting officer, [struck: may] may all be inhibited under ruinous penalties from the performance of their respective duties; the warrant of a ministerial officer may authorize the collection of these penalties; and the person thus obstructed in the performance of his duty may indeed resort to his action for damages after the infliction of the injury, but cannot avail himself of the preventive justice of the nation, to protect him in the performance of his duties. Each member of the union is capable, at its will, of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs; while the nation stands naked, stripped of [struck: the] [inserted: its] defensive armour, and incapable of shielding its agents or executing its laws otherwise than by proceedings which are to take place after the mischief is perpetrated, [inserted: and] which must often be ineffectual, from the inability of the agents to make compensation.
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 be 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; [25] but, [struck: the] in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one [strike out] as in the other.
The [struck: diff] 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 States cannot rightfully protect the agents who execute every law authorized by the constitution from the direct action of state agents in the collection of penalties, they cannot rightfully protect 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 [inserted: whatever,] or proceedings against the very property which may have been seized by the agent of a state, can be sustained against such agent, [struck: can be sustained] because they would be substantially against the state itself, in violation of the 11th. amendment of the constitution.
That the [struck: circuit] 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 any individual for any cause whatever, a suit against a state in the sense of the constitution?
The 11th. amendment is the limitation of a power supposed to be granted in the original instrument; and to understand accurately the extent of the limitation, it seems proper to define the power that is limited.
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 ano[26]ther state" "and between a state and foreign states citizens 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 to be made, but is to be considered as a party where the decision acts directly and immediately upon the state through its officers.
If this question were to be determined on the authority of English decisions, it is believed that no case can be adduced where any person has been considered as a party who is not made so in the record. But the court will not review those decisions because it is thought that a question growing out of the constitution of the United States requires rather an attentive consideration of the words of that instrument, than of the decisions of analogous questions by the courts of any other country.
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 a state would be supposed to take a deeper or more immediate interest than in those which [struck: respect boundary] [inserted: decide on the extent] of her territory. Yet the constitution, not considering the state as a party to such controversies [struck: unless made] [inserted: if not plain]tiff or defendant on the record, has [inserted: expressly] given jurisdiction, in those between citizens claiming lands under grants of different states. If each state [27] 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 constitution does not consider the state as a party in such a case.
Jurisdiction is expressly granted in those cases only where citizens of the same 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 [inserted: cognizance of] [struck: jurisdiction over] 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 cases may be denied, because the [struck: interest] [inserted: title] of the state comes on incidentally, and the appellants admit the jurisdiction of the court where its judgement does not act directly upon the property or interests of the state; but we deemed 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 makes no provision for a case of interest with [inserted: out] 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 the interest of the state, what rule has the constitution given by which this interest is to be measured? If no rule be given is it to be settled by the court? If so, the curious anomaly is presented of a court examining the whole testimony of a cause, enquiring into and deciding on the extent of a state's interest, without having a right to exercise any jurisdiction in the case. Can this enquiry be made without the exercise of jurisdiction?
The next in 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 [struck: admitted] [inserted: sufficient] to change the parties, and arrest the proceeding against the individual? Controversies respecting boundary have lately existed between Virginia and Tenessee [sic], between Kentucky & Tenessee [sic] and now exist between New-York & New Jersey. Suppose, while such a controver[28]sy is pending the collecting officer of one state should seize property for taxes belonging to a man 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 it is admitted that in such a case the action would lie, because the officer might be treated as a trespasser and the [struck: damages] [inserted: verdict and] judgement 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 [inserted: the amount of the taxes] in his hands, and on the proceedings of the state against him may [struck: defend himself by] [inserted: plead in bar] the judgement of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain that it ought not, the judgement so pleaded would have acted directly on the [struck: content] [inserted: revenue] of the state in the hands of its officer, and yet the argument admits that the action in such a case would be sustained. But suppose, in such a case, the party [struck in pencil: supposing] [inserted in pencil: conceiving] himself to be injured, instead of bringing an action sounding in damages, should sue of the specific thing while yet in possession of the seizing officer. It being admitted in argument that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the [inserted: latter] action would claim the specific article seized for the tax, and would obtain it should the seizure be deemed unlawful.
It would be tedious to pursue this fact of the enquiry farther, and it would be useless, because every [struck: gentleman] [inserted: person] will perceive that the same reasoning is applicable to all the other enumerated controversies to which a state may be a party. The principle may be illustrated by a reference to those other controversies when jurisdiction depends on the party. But before we review them, we will notice one where the nature of the controversy is in some degree blended with the character of the party.
If a suit be brought against a foreign minister the supreme court alone has original jurisdiction, and this is shown on the record. But suppose a suit be brought which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant is arrested. The minister does not by the meer [sic] arrest of his secretary or his servant become a party to this suit, but the actual defendant [29 blank] [30]
A To be inserted in the 3d. page of he 8th. sheet
The first in the enumeration is "controversies to which the United Sates shall be a party.["]
Does this provision extend to 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 for money due to the United States. The nominal plaintiff has no interest in the controversy, and the United States are the only real party. Yet these suits could not be instituted in the courts of the Union under that clause which gives jurisdiction in all cases to which the United States are a party, and it was found necessary to give the court jurisdiction over them as being cases arising under a law of the United States.
The judicial power of the union is also extended to [struck: controversies between citizens of different states]
[31] pleads to the jurisdiction of the Court and asserts his privilege. If the suit affects a foreign minister it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different. This court can take cognizance of all cases "affecting" foreign ministers, and therefore jurisdiction does not depend on the party named in the record; but this language changes when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign Ministers, it was intended [inserted: for reasons, which all comprehend,] to give the [struck: federal] [inserted: national] courts jurisdiction over all cases by which they were in any manner affected. In the case of states, whose immediate or remote interest were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties.
In proceeding with the cases in which jurisdiction depends on the character of the party, [inserted: A insert separate paper] [struck: the first in the enumeration is "controversies to which the United States shall be a party"]
[struck: Does this provision extend to cases where the United States are not named on the record, and may be concerned in interest? Let us examine this question.]
[struck: It is admitted that the United States cannot at present be sued. As the law now stands no suit can be sustained against the United States. we find it may be used exercised in] 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 [struck: the] [inserted: his] testator are the persons really concerned in interest; but it has never been suspected that, if the executor be a resident of another state, the jurisdiction of the federal court 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 [32] 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 out 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 no manner affects the jurisdiction of the court? The plain and obvious answer is because the jurisdiction of the court depends, not upon this interest, but upon the actual party in the record.
Were a state to be the sole legatee It will not we presume be alleged that the jurisdiction of the court [struck: would] [inserted: 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. Sec. of the 3d. art. the supreme court could never take original jurisdiction in consequence of an interest in a party not named in the record.
But the principle seems [struck: to be] too well established [struck: that we will not devote more] [inserted: 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 jurisdictions 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 would have been construed had the jurisdiction of the court never been extended to [struck: cases] suits brought [struck: by] against a state by the citizens of another state, or by aliens.
[struck: The true question then,] The state not being a party on the record, and the court having jurisdiction over those who [33] are parties on the record, the true question is not one of jurisdiction, but [struck: is] whether in the exercise of its jurisdiction, the court ought to make a decree against the defendants: [inserted: Whether they are to be considered as having a real interest or as being only nominal parties.]
In pursing the arrangement which the applicants have made for the argument of the cause, this [struck: form] 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 be maintained for that article, if the Bank had possessed the means of describing it, and that the interest of the state would not have been an obstacle to the suit of the Bank against the individual in possession of it. The judgement in such a suit might have been enforced had the article been found 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 court of equity alone that the relief would be real, substantial, and effective. [inserted: The parties must certainly have a real interest in the case since their personal responsibility is acknowledged, and if denied, could be demonstrated.] [struck: 7th. If then the law of the state of Ohio be repugnant to the constitution, or to a law of the United Sate made in pursuance thereof,]
It was [struck: then] proper then to make a decree against the defendants in the circuit court, if the law of the state of Ohio be repugnant to the constitution, or [inserted: 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.
7th. Is that law unconstitutional?
This point was argued with great ability, and decided by this [struck: state] [inserted: court,] after mature and deliberate consideration, in the case of McCulloch vs. The State of Maryland. A revision of that opinion has been requested; and many considerations combine to induce a re- [struck: -consideration] [inserted: -view] of it.
The foundation of the argument in favour of the right of a state to tax the bank is laid in the supposed [34] 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 private profit for its great end and principal object.
If these premises were true, the conclusion drawn from them would be inevitable. This meer [sic] private corporation, engaged in its own business, with its own views, would certainly be subject [struck:ed] to the taxing power of the state, as any individual would be, and the casual circumstance of its being employed by the government in the transaction of its fiscal affairs would no more exempt its [inserted: private business] from the operation of that power, than it would exempt [inserted: the private business of] any individual employed in the same manner. But the premisses [sic] are not true. The Bank is not considered as a private corporation, whose principal object is [struck: private trade and private] [inserted: individual trade and individual] profit; but as a public corporation created for public and national purposes. That the meer [sic] business of banking is in its own nature a private business, and may be carried on by individuals or companies having no political connexion [sic] with the government, is admitted; but the Bank is not such an individual or company. It was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation. The whole opinion [inserted: of the court] in the case of MCulloch v. The state of Maryland is founded on, and sustained by, the idea that the Bank is an instrument which is "necessary and proper" for carry [inserted: ing] into effect the powers vested in the government of the United States. It is not an instrument which the government has found ready made, and has supposed to be adapted to its purposes, but one which was created [inserted: in the form in which it now appears,] for national purposes only. It is undoubtedly capable of transacting private as well as public business. While it is the great instrument by which the fiscal operations of the government are effected, it is also trading with individuals for its own advantage. The appellants endeavour to distinguish between this trade, and its agency for the public, between its Banking operations and those qualities [35] which it possesses in common with every corporation, such as individuality, immortality, &c. While they seem to admit the right to preserve this corporate existence, they deny the right to protect it in its trade and business.
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 depositary of, and vehicle for, the convey [inserted in pencil: ance] 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 MCullogh 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 be endowed with that faculty of lending and dealing in money which is conferred by its character? 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 [inserted in pencil: & rightfully] engrafted on the institution. It is [inserted: in that view of the subject,] the vital part of the corporation, it is its soul, and the right to preserve it [struck: stands on the same ground] [inserted: originates in the same principle] with the right to preserve the skeleton or body which it animates. The distinction between destroying what is denominated the corporate franchise, and destroying its vivifying principle, is precisely as incapable of being maintained, as a distinction between the right to sentence a human being to death, and a right to sentence him to total privation of sustenance during life. Deprive a Bank of its trade and business which is its sustenance, and its immortality, if it have that property, will be a very useless attribute.
This distinction then has no real existence. To [36] 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 [struck: the] 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 conducted 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. [struck: We maintain that] If an individual were to be endowed with the same faculties for the same purposes, he would be equally protected in the exercise of those faculties. The operations of the Bank are believed not only to yield the compensation for its services to the government, but to be essential to the performance of those services. Those operations give its value to the currency in which all the transactions of the government are conducted. They are therefore inseparably connected with those transactions. They enable the bank to render those services to the nation for which it was created, and are therefore of the very essence of its character as a [struck: s] [inserted: national] instrument. [struck: of the nation.] The business of the Bank constitutes its capacity to perform its functions as a machine for the money transactions of the government. Its corporate character is [inserted: meerly {sic}] an incident which enables it to transact that business more beneficially.
Were the Secretary of the Treasury to be authorized by law to appoint agencies throughout the union to perform the [inserted: public] functions of [inserted: the] Bank, and to be endowed with [struck: their] its faculties as a necessary auxiliary to those functions, the operations of those agents would be as exempt from the controul of the states as the Bank, and not more so. If instead of the [37] Secretary of the Treasury, a distinct office were to be created for the purpose, filled by a person who should receive as a compensation for his time, labor, and expense, the profits of the [struck: banking] [inserted: banking] business [struck: which was essential to the performance of his duties,] instead of other emoluments to be drawn from the Treasury, which banking business was essential to the operations of the government, would each state in the union possess a right to controul these operations? The question on which this right would depend must always be, are these faculties [inserted: so] essential to the fiscal operations of the government as to authorize Congress to confer them. Let this be admitted, and the question does the right to preserve them exist must always be answered in the affirmative?
Congress was of opinion that these faculties were necessary to enable the Bank 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 [struck: this faculty] [inserted: 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 [sic] 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 trade is a faculty indispensable to the character and objects of the institution.
The [struck: argument of th] appellants [struck: insist that] [inserted: admit that, if] this faculty be necessary to make the bank [inserted: an] a fit instrument for the purposes of the government, Congress possesses the same power to protect [struck: it as to protect] the machine [inserted: in this as in] [struck: itself in] its direct fiscal operations; but they deny that it is necessary to those purposes, and insist that it is granted solely for the benefit of the members of the corporation. Were this proposition to be admitted all the consequences which are drawn from it might follow. But it is not admitted. The court has already stated its convic[38]tion that without this capacity to trade with individuals the Bank would be a very [struck: imperfect] [inserted: defective] instrument when considered with a single view to its fitness for the purposes of government. On this point the whole argument rests.
It is contended that, admitting Congress [struck: to possess] to possess this power [struck: it] [inserted: the 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 controul which is said to be so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature are example 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 incidental to [inserted: and is implied in] the several acts by which these institutions are created, and is secured to the individuals employed in them by the judicial power alone. That is, the judicial power is the instrument employed by the government in administering this security.
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 controul of the states, courts are as much bound to give it that construction as if the exemption had been established in express terms. Judicial powers as contradistinguished from the power of the laws has no existence. Courts are the meer [sic] instruments of the law and can will nothing. When they are said to exercise a discretion it is a meer [sic] 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. [39]
The appellants rely greatly on the distinction between the Bank and a public institution, 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 [sic] of the government with the Bank is likened to that with contracters [sic].
It will not be contended that the Directors or other officers of the Bank are officers of government. But it is contended that, were their resemblance [struck: of] to contractors more perfect than it is, the right of the state to controul its operations, if those operations be necessary to its character as a machine employed by the government cannot be maintained. Can a [struck: mail carrier be] [inserted: contracter {sic} for supplying] a military post with provisions be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed, or could he be fined or taxed for doing so? We have not yet heard [inserted: these questions answered in] the affirmative.
It is true that the property of the contracter [sic] may be taxed as the property of other citizens; [brackets inserted in pencil] and so may the property of the Bank. [close brackets] But we do not admit that the act of purchasing or of conveying the articles purchased can be under state controul.
If the trade of the Bank be essential to its character as a machine for the fiscal operations of the government [struck: that] that trade must be as exempt from state controul 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 individuals. No distinction is taken between them.
Considering the capacity of carrying on the trade of banking as an important feature in the character of this corporation, which was necessary [struck: necessary] to make it a fit instrument for the objects for which it was created, the court adheres to its decision in the case of MCullough against The state of Maryland, and is of opinion that the act of the state of Ohio, which is certainly much more objectionable than that of the state of Maryland, is repugnant to a law of the United States made in pursuance of the Constitution, and therefore void. The counsel for the appellants are too intelligent, and have too much self respect, to pretend that [struck: such an] [inserted: a void] act can afford any protection to the officers who execute it. [40] They expressly admit that it cannot.
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 pronouncing a decree against the defendants. That this question is attended with great difficulty, has not been concealed or denied. But when we reflect that the defendant [inserted: Oswold {sic} and Harper] are incontestably liable for the full amount of the money taken out of the bank; that the 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 the event of the pending suit respecting it: we may lay it down as a proposition safely to be affirmed that all the defendants in the cause were liable in an action at law for the amount of this decree. If the original injunction was [struck: justifiable] [inserted: properly awarded] for the reasons stated in the preceding part of this opinion, the money [struck: and the notes, they] having reached the hands of all those to whom it afterwards came [struck: in violation] [inserted: with notice] of that injunction, might be pursued so long as it remained a distinct deposit, [struck: un-]] [inserted: neither] mixed with the money of the treasury [struck: and not] [inserted: nor] put into circulation. Were it to be admitted that the original [inserted: injunction] was not properly awarded, still the amended and the supplemental bill which brings before the court all the parties who had been concerned in the transaction, was [struck: brou] filed after the cause of action had completely accrued. The money of the bank had been taken without authority by some of the defen[d]ants, and was detained by the only person who was not an original wrong doer, in a specific form, so that detinue might have been maintained for it had been in the power of the bank to prove the facts which were necessary to establish the identity property sued for. Under such circumstances, we think a court of equity may afford its aid on the ground that a [41] discovery is necessary, and also on the same principle that an injunction issues to restrain a person who has fraudulently obtained possession of negotiable notes from putting them into circulation, or a person having the apparent ownership of stock really belonging to another, from transferring it. The suit then [struck: was] might be as well [struck: to be] sustained in a court of equity as in a court of law, and the objection that the interests of the state are committed to subordinate agents, if true, is the unavoidable consequence of exemption from being sued--of sovereignty. The interests of the United States are sometimes committed to subordinate agents. It was the case in Hoyt & Gelston, in the case of Clarke and Edon, and in many others. An independent foreign sovereign [inserted: cannot be sued, and] does not appear in court. But a friend of the court comes in, and, by suggestion, gives it to understand, that his interests are involved in the controversy. The interests of the sovereign in such a case, and in every other where he chuses to assert them under the name of the real party to the cause, are as well defended as if he were a party to the record. But his pretensions, where they are not well founded, cannot arrest the suit of a party having a right to the thing for which he sues. Where the right is in the plaintiff and the possession in the defendant, the enquiry cannot be stopped by the meer [sic] assertion of the title in [struck: the] [inserted: a] sovereign. The court must proceed to investigate the [struck: past] [inserted: assertion] & examine the title. In the case at bar, the tribunal established by the constitution for the purpose of deciding ultimately in all cases of this description had solemnly determined that a state law imposing a tax on the Bank of the United States was unconstitutional and void, before the wrong was committed for which this suit was brought.
We think then that there is no error in the decree of the circuit court for the district of Ohio so far as it directs [inserted: restitution of] the specific sum of $98000 which was taken out of the Bank unlawfully, and was in the possession of the defendant Samuel Sullivan when the injunction was awarded in September 1820 to restrain him from paying it away or in any manner using it, [struck: but that the decree is erroneous so far as respects] [inserted: and so far as it directs the payment of] the remaining sum of 2000$ [struck: thus not being sufficient proof {insert: the record} that that sum was taken from the bank;] [inserted: by the defendants Ralph Osborne and John L. Harper; but that the same is erroneous [41] [struck: and also] so far as respects the [struck: coin] interest on the coin, part of the said $98000, it being the opinion of this court, that while the parties were restrained by the authority of the [inserted: circuit ] court from using it, they ought not to be charged with interest.
[struck: It is therefore] The decree of the circuit court for the district of Ohio is affirmed as to the said sums of $98000 [inserted: and $2000] and reversed as to the residue.
[43] Osborne & al
The [struck: Bank of] President Directors & company of the Bank of the United States
This cause came on to be heard on the transcript of the record of the circuit court of the United States for the District of Ohio and was argued by counsel on consideration whereof this court is of opinion that there is no error in so much of the decree of the circuit court as directs the restitution of the specific sum of $98000 which was taken out of the bank of the United States by violence, and contrary to law, and [struck: remained with] [inserted: was retained in his] possession [struck: of] [inserted: by] the defendant Samuel Sullivan in the nature of a special deposit, which he was restrained by the writ of injunction awarded by the said circuit court from paying away and using in any manner whatever, nor in so much of the said decree as directs the payment of the remaining sum of $2000 as to the defendant Ralph Osborne and John L Harper, but that there is error in so much of the said decree as directs interest to be paid on part of the said sum of money, and as subjects the defendants [blank in original] Currie and Samuel Sullivan to the payment of the said sum of $2000 which never came to their hands.