entertain jurisdiction of the said declaration, and the matters therein contained, for that the said president, directors and company of the bank of the United States aver themselves to be a body politic and corporate, and that in that capacity these defendants say they cannot sue or be sued, plead or be impleaded in this honourable court, by any thing contained in the constitution or laws of the same United States, and this they are ready to verify; wherefore, for want of jurisdiction in this behalf, they pray judgment, and their costs, &c.

To this plea there was a demurrer and joinder. and judgment in favour of the defendants upon the demurrer.

Binney, for the plaintiffs in error.

In the year 1805 the State of Georgia passed a law to tax the Branch Bank of the United States, at Savannah. The bank having refused to pay the tax, the state officers entered their office of discount and deposit, and took and carried away two thousand dollars, for which the bank of the United States brought their action of trespass in the circuit court of the United States for the district of Georgia. The plea to the jurisdiction does not deny that the plaintiffs were citizens of the State of Pennsylvania, but relies upon the fact that the plaintiffs sue as a body corporate.

The record presents two questions.

1. Whether a body politic, composed exclusively of citizens of one state, can sue a citizen of another state in the circuit court of the United States.

2. Whether the bank of the United States has not a peculiar right to sue in that court.

The objections to this right are two.

1. That the individual character of the member

BANK U.S. is so wholly lost in that of the corporation, that the court cannot take notice of it.

V.

DEVEAUX.

2. That the suit neing in a corporate capacity, it is impossible by the pleadings to bring into quéstion the fact of citizenship of the individual members,

The answer to the first objection embraces three propositions.

1. That in many instances, the character, situation and attributes of the members of a corporation, are brought into notice in judicial proceedings against the corporate body.

2. That even if it were otherwise, still the spirit of the federal constitution and laws demands, that the citizenship of the members should be noticed, as well to affect the question of jurisdiction, as for other purposes.

3. That the constant practice in the circuit courts, and the tacit approbation of this court, have sanctioned their jurisdiction in such cases.

1. What is a corporation aggregate? It is a collection of many individuals united into one body, under a special name, having perpetual succession under an artificial form, and vested, by the policy of the law, with the capacity of acting in several respects as an individual. 1 Kud. on Corp. 13. To say that it is an "ens civile, a jus habendi et agendi, an ens rationis, a mere metaphysical being, and that it rests only in consideration and intendment of law," are terms calculated to mislead the understanding.

A corporation is composed of natural persons; it is a visible, tangible body; and although the whole collectively have faculties in law which the individuals have not, yet it does not follow that the whole body may not be seen, examined, sifted, and contemplated, as any other body of individuals having

V. DEVEAUX.

collectively a particular faculty. 11 Co. 98. b. The BANK U.S. individuals hold their rights as members in their natural, and not in a politic capacity. A corporation is a mere collection of men having collectively certain faculties.

When the president, directors and company of a bank are assembled, the corporation is visible. If all the members should die, or surrender their charter to the king, the corporation would be extinct. A corporation must exist by means of natural persons; and the law will examine whether the natural persons claiming to be members have all the necessary qualifications according to their charter. If any individual member does not possess them, he is to be disfranchised.

If a suit were brought against a corporation it would be a decisive bar that all the members were dead.

A corporation as a "faculty" has no "local habitation," though it has a "name." If it is an ens rationis only, it cannot be said to reside anywhere; and it certainly occupies nothing; yet habitancy, residence, and occupation may be predicated of a corporation aggregate. The residence and inhabitancy of the particular members have been taken into consideration, and have been deemed to impart these characters to the corporation.

"Eve

Lord Coke, in his exposition of the statute of 22 Hen. VIII. c. 5. concerning the repairing of decayed bridges in highways, (2 Inst. 697. 703.) says, "the persons to be charged by this act are comprehended under this only word “inhabitants.” ry corporation and body politic residing in any county," &c. "or having any lands or tenements in any shire," &c. "quæ propriis manibus et sumptibus possident et habent, are said to be inhabitants there within the purview of this statute." In the case of Rex v. Gardner, Corp. 83. it was decided that a corporation aggregate was an inhabitant or occupier of

Vol. V.

I

BANK U. S. certain lands, and therefore liable to be taxed for them under the act of 43 Eliz. c. 2.

V..

DEVEAUX.

It must be an inhabitant or resident where its members or officers inhabit or reside. If an action be brought against the corporation in respect of its residence or occupation, it must be competent to the corporation to show that it does not so reside or occupy, which can only be done by showing that this is not true of its members or officers.

But the characters of individual members are in many cases examined for the purpose of settling the very question of jurisdiction.

The division of corporations into ecclesiastical and lay, is familiar. There is nothing in the name or patent to distinguish them. 1 Bla. Com. 470. An ecclesiastical corporation is subject to the ordinary alone. His court alone has jurisdiction of proceedings by or against the corporation. 1 Bla. Com. 480. A lay corporation is visited by the founder. The king is the founder of all civil corporations, and he visits them in the king's bench.

By ascertaining the characters of the members of the corporation alone can it be decided whether the corporation be lay or ecclesiastical; and, consequently, whether the king's bench or the ordinary has jurisdiction. Blackstone says, that an ecclesiastical corporation is where the members that compose it are entirely spiritual persons; and that the universities of Oxford and Cambridge are not ecclesiastical corporations, "being composed of more laymen than clergy." In this question of jurisdiction, therefore, is always involved the character of the individual members who compose the body.

The members of a corporation are further noticed in chancery, and are compelled as individuals to execute a trust, which at common law they were not bound to do. Gilb. Uses, 5. 174. 1 Kyd, 73. 2 Leon. 122. A corporation trustee is the same in chancery

V

as an individual, or number of individuals. 2 Ves. BANK U.S. jun. 46. Attorney-General v. Foundling Hospital.

The rule seems to be, not that the individuals confer their private privileges upon the body corporate, but that as often as justice or convenience require that the corporation should be considered as composed of natural persons, the individuals are disclosed, and their character becomes the subject of legal contemplation.

2. The spirit of the constitution and laws of the United States, demands that the citizenship of the members of a corporation should be noticed in order to decide the question of jurisdiction, as well as for other purposes.

The constitution has conferred on the courts of the United States jurisdiction in two classes of cases.

1. Where the peace of the confederacy might be involved.

2. Where the state tribunals could not be supposed to be impartial.

The one upon the ground that the union was answerable for the misconduct of its members, who, by unjust decisions against aliens, might furnish a just ground of war.

The other to preserve the real equality of citizens throughout the union, by guarding against fraudulent laws and local prejudices, in particular states.

The design of the constitution was to retain jurisdiction in those cases where substantially these great interests were to be affected. It cannot be supposed that it was to be retained only where there was a nominal character, alien or citizen, and abandoned where substantially aliens or citizens were concerned, but whose names did not appear. It is unimportant by what name citizens are by the laws

DEVEAUX.