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DEVEAUX.

suits, in three cases only. 1. Where the United BANK U. 8. States is plaintiff; 2. Where an alien is a party; and, 3. Where the suit is between a citizen of the state where the suit is brought, and a citizen of another state.

The president, directors and company of the bank of the United States do not answer to either of those cases. They are neither the United States, nor an alien, nor a citizen of a state.

They are a corporation aggregate, consisting of many natural persons, created by the act of congress of the 25th of February, 1791, vol. 1.p. 283. under the name and style of "The President, Directors and Company of the Bank of the United States," and by that name only can they sue and be sued. The present suit is brought by them in their corporate name and capacity.

A corporation aggregate is an artificial, invisible body, existing only in contemplation of law. It has no analogy to a natural person. It has no organ but its seal. It cannot sue, or be sued, for any personal injury. It cannot be outlawed. It is not sub ject to an attachment of contempt. It never dies, It cannot be a citizen of any state, because it cannot owe allegiance. It cannot commit treason nor felony. It can have no residence, because it is an artificial, invisible, intangible body. It cannot appear in person, but must appear by attorney. For all these reasons it cannot come within the description of those who are entitled to sue in the circuit courts of the United States. Neither residence nor inhabitancy is sufficient to give jurisdiction. It must be a citizen, possessing political rights, and owing alle. giance to some state.

The bank has mistaken its proper course. Wherever the only ground of jurisdiction is a question upon the construction of the constitution, or of a law, or treaty of the United States, the only remedy is by writ of error from this court to the high

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est state tribunal having cognisance of the cause, DEVEAUX. agreeably to the provisions of the 25th section of the judiciary act of 1789. Vol. 1. p. 63.

If an act of congress could authorize any person to sue in the federal courts, on the ground of its being a case arising under a law of the United States, it would be in the power of congress to give unli mited jurisdiction to its courts. But it is only when the state courts disregard or misconstrue the constitution, laws, or treaties, of the United States, that the federal courts have cognisance under that clause of the constitution which declares that the judicial power shall extend to all cases arising under the constitution, laws and treaties of the United States.

It is supposed to be absurd to say that the United States have erected a body corporate, and given it a power to sue and be sued in any courts but those of the power creating the corporation. But there is nothing absurd in the idea. Persons are daily becoming citizens of the United States, under an acé of congress, and yet they have no right to sue in the federal courts except in particular cases, and under special circumstances; if the bank can bring itself within one of those cases, and clothe itself with those special circumstances, it may sue in those courts.

But it is contended that it has brought itself within one of those cases, by the averment that the president, directors and company of the bank of the United States are citizens of the state of Pennsylvania, and the defendants citizens of the state of Georgia.

This averment cannot give jurisdiction; because,

1. It is repugnant and void; and,

2. It is contrary to their own showing on the face of the declaration.

1. It is repugnant because the suit is brought in the corporate name. The corporation is the plaintiff,

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and it is absurd and impossible to say that a corporation aggregate is a citizen or citizens. The body DEVEAUX. politic is the plaintiff, and not the individual stockholders.

2. It is contrary to their own showing, because they have in the declaration expressly averred themselves to be a body corporate, and to sue in that ca. pacity and an averment relative to the individual characters of the stockholders is in contradiction to the corporate character in which they sue. No corporation aggregate can derive aid from the personal character of its members; nor does it incur any disability from the disabilities of the individuals who compose the society. Neither the infancy, coverture, nor outlawry of the individuals can affect the body corporate.

It is laid down in the books that "an averment contrary to that which appears to the court, shall not avail." Com. Dig. tit. Pleader.

But it is said that you may raise the veil which the corporate name interposes, and see who stand behind it. You may strip them of the corporate capacity in which they sue, to give the court a jurisdiction which they cannot claim in their corporate capacity.

But the name of a corporation is not a mere accident. It is substance. It is the knot of its combina, tion. It is its essence. It is the thing itself. 1 Tuck. Bl. 474, 475.

As to the case of ejectment from 4 Dal. 333. the nominal plaintiff must have the same character, as to citizenship, as his lessor; and the court will be astute to see that no deception be practised upon them to give them a jurisdiction which they could not otherwise exercise.

The authority from 2 Inst. 697, only proves that a corporation aggregate may be adjudged to be an

BANK U.8.. inhabitant in respect to its holding of lands, and se DEVEAUX. 26 to render those lands liable to taxes for the repair of bridges and highways under the statute of 22 H. VIII. c. 5.

In the case of The King v. The Inhabitants of St. Bartholomews, in 4 Burr. 2435. Lord Mansfield said the corporation were not occupiers. And in Rex v. Gardner, Cowp. 84. the question was whether a core poration, seised in fee for its own profit, was ratable to the poor, under a law which taxed all inhabitants. The court decided that inasmuch as persons seised in fee were always assessed as inhabitants of the land, if there was no other tenant upon it, a corpora · tion seised in fee should, pro hac vice, be deemed an inhabitant within the meaning of that statute. this goes but a little way towards proving that a corporation aggregate may be a citizen for the purpose of giving jurisdiction to the federal courts; or towards establishing the point that the court will inquire into the individual circumstances of the members of a corporation, for the same purpose.

But

Of still less weight is the doctrine respecting the visitatorial power in England. That power is given for the express purpose of examining the qualifications of the members, to see whether the charter of the corporation has been adhered to in the election of members, and whether the corporation has acted consistently with the purposes of its creation. It is not a power to examine the character of the individuals to ascertain whether the corporation has a right to sue in a certain court.

At law, a corporation cannot be a trustee. And a court of equity acts in personas to compel the members to perform their corporate functions; but even this doctrine depends upon the mere dictum of a lord chancellor.

In the case cited from 4 Dal. 8. the question respecting the averment of citizenship was not raised. The gentlemen of the bar were not very

desirous of raising questions as to the jurisdiction BANK U. S. of the federal courts.

If denial of justice be a cause of war, as is alleged, the person who claims it must preserve an entirety of character; he must not associate himself with others who have no right to claim it in that form. Foreign nations have no right to prescribe the mode of administering justice to their subjects in this country. If they have the same resort to the same courts which our own citizens enjoy, they cannot complain.

But it is said that the death of all the members of a corporation is a fact which may be pleaded; that cannot be pleaded unless you can go into the question who were the last members of the corporation. And if you can plead any thing respecting the individual members, you may plead their citizenship. But if this be true, it must be pleaded in a different manner. The name of each individual must be set forth, and his death averred. And it may well be doubted whether even such a plea would be good; and whether the only remedy would not be by quo warranto; or a rule to show cause.

If the averment in the declaration relate to the body politic, it is repugnant. If to the individual members, it is immaterial. No issue could have been taken upon it. It does not name a single individual member of the corporation. If they had named every individual, it would have appeared that some of them were citizens of Georgia. If the defendant had pleaded that A. B., one of the members, was a citizen of Georgia, it would have been a bad plea, because immaterial and argu mentative.

Jones, on the same side, cited Co. Litt. 66. b. 10 Co. 32. b. 1 Ld. Raym. ¿0. 2 Cranch, 445. 2 Burr. 1054. 1 Bl. Com. 497. 512. 10 Co. 30. 1 1 Leuch's Cr. Law, 287.

Bl. Com. 502.

This cause being argued in connection with the

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