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