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1824. contended for. But I cannot persuade myself,

that they have been conceded in the extent which Osborn

" this decision affirms. Whatever might be proper O. S. Bank.

to be done by an amendment of the constitution, this Court is only, at present, expounding its existing provisions.

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

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

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or distributive portions of intestates'estates-juris- 1821.

maribio diction, in fact, over almost every possible case, might be transferred to the Courts of the United States. Wills may be required to be executed on". stamped paper; taxes may be, and have been, imposed upon legacies and distributions; and, in all such cases, there is not only a possibility, but .a probability, that a question may arise, involving the constitutionality, construction, &c. of a law of the United States. If the circumstance, that the questions which the case involves, are to determine its character, whether those questions be made in the case or not, then every case here alluded to, may, as well be transferred to the jurisdiction of the United States, as those to which this Bank is a party. But still farther, as was justly insisted in argument, there is not a tract of land in the United States, acquired under laws of the United States, whatever be the number of mesne transfers that it may have undergone, over which the jurisdiction of the Courts of the United States might not be extended by Congress, upon the very principle on which the right of suit in this Bank is here maintained. Nor is the case of the alien, put in argument, at all inapplicable. The one acquires its character of individual property, as the other does his political existence, under a law of the United States; and there is not a suit which may be instituted to recover the one, nor an action of ejectment to be brought by the other, in which a right acquired under a law of the United States, does not lie as essentially at the basis of the right of action, as in the suits brought by this Bank.

1824. It is no answer to the argument, to say, that the

w Osborn

law of the United States is but ancillary to the

constitution, as to the alien; for the constitution U. S. Bank.

could do nothing for him without the law: and, whether the question be upon law or constitution, still if the possibility of its arising be a sufficient circumstance to bring it within the jurisdiction of the United States Courts, that possibility exists with regard to every suit affected by alien disabilities; to real actions in time of peace-to all actions in time of war.

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

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which is well understood to be, and which this 1824. Court, in the case of Deveauz, has recognised to be, little more than the mere common place or formula

:.U. S. Bank, of such an act. The name of a corporation is the symbol of its personal existence; a misnomer there is fatal to a suit, (and still more fatal as to other transactions.) By the incorporating clause, a name is given it, and, with that name, a place among created beings; then usually follows an enumeration of the ordinary acts in which it may personate a natural man; and among those acts, the right to sue and be sued, of which the Court, in Deveaux's case, very correctly remarks, that it is “ a power which it not incident to a corporation, is conferred by every incorporating act, and is not understood to enlarge the jurisdiction of any particular Court, but to give a capacity to the corporation to appear as a corporation in any Court which would by law have cognizance of the causc if brought by individuals." With this qualification, the clause in question will be construcd, as an enumeration of incidents, instead of a string of enactments; and such a construction is strongly countenanced by the concluding sentence of the section; for, after running through the whole routine of powers, most of which are unquestionably incidental, and needed no enactment to vest them, it concludes thus : “and generally to do and execute all and singular the acts, matters, and things, which to them it shall and may appertain to do." And, in going over the act, it will be found, that whenever it is contemplated to vest a power not incidental, it is done by a specific provision, made

1824. the subject of a distinct clause; such is that power

V to transact the business of the loan-office of the Osborn

United States. And, indeed, there is one section U. S. Bank.

of the act, which strikingly exhibits the light in which the law-makers considered the incorporating clause. I mean the tenth; which, notwithstanding that the same clause in the seventh section, which is supposed to confer this sweeping power to sue, confers also, in terms equally comprehensive, the power to make laws for the institution, and “to do and execute all and singular the matters and things, which to them it shall and may appertain to do,” contains an enactment in the following words: “that they shall have power to appoint such officers, clerks, and servants, under them, for executing the business of the corporation, and to allow them such compensation for their services respectively, as shall be reasonable; and shall be capable of exercising such other powers and authorities for the well governing and ordering the officers of the said corporation, as shall be prescribed by the laws, regulations, and ordinances, of the same;" a section which would have been altogether unnecessary, had the seventh section been considered as enacting, instead of enumerating and limiting. I consider the incorporating clause, then, not as purporting the absolute investment of any power, but as the usual and formal declaration of the extent to which this artificial should personate the natural person, in the transactions incident to ordinary life, or to the peculiar objects of its creation ; and, therefore, not vesting the right to sue in the Courts of the United

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