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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

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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.

V.

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

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

If a state be substantially a party, is the jurisdiction cut off if her agent brings a suit? The case of Fowler v. Lindsey, 3 Dal. 412. clearly implies the contrary.

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

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

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

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

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

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

courts.

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

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

V.

DEVEAUX.

BANK U. S.

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

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

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

But this point may be considered as almost, if not quite, decided by the case of The Bank of North America v. Turner, 4 Dal. 8. where the plaintiffs were described in the same manner as the present plaintiffs, and Ch. 7. Ellsworth, in delivering the opinion of the court, says, "the plaintiffs are well described as citizens of Pennsylvania."

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

issue.

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

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