the United States. But every difficulty vanishes when we limit the meaning of the language of the act, by a reference to the context. In fact, a general power to bring actions in the courts of the United States, is so peculiarly and explicitly personal on the face of the constitution, that it is hard to perceive how Congress could have for a moment lost sight of the restrictions 900*] *imposed, in this respect, upon the judicial power.

Nor had the bank any idea that this power was vested in it, upon the ground that every possible case in which it might be involved in litigation, came within the constitutional definition of cases arising under laws, etc., of the United States. In its averments, those on which it claims jurisdiction, it simply takes two grounds: (1) That it was incorporated by an act of Congress. (2) That the right to sue was given it by an act of Congress. But there is no averment that the cause of action was a case arising under a law of the United States. It well knew that it was a case emphatically arising out of an act of the state of Ohio, operating upon the domicile of the bank, | which, although purchased in right of an existence metaphysically given it by Congress, was acquired and held according to the laws of Ohio, acting upon its own territory. Technically, these averments cover only two grounds; they affirm, (1) that the bank, being incorporated by Congress, had, therefore, a right to sue; (2) that being incorporated, and having the right to sue conferred upon it by an act of Congress, therefore it could maintain this action. But yet neither, nor both of these, could give the right, unless in one of the cases defined in the constitution, which case is not the subject of an averment. I would not willingly place the case on the ground of mere technicality; and, therefore, only make the observation to show that the ground assumed in argument is an afterthought. I believe that. 901*] until this argument, the ground now made was never thought of; and I am at a loss to conceive how it is possible to maintain the position that all possible cases in which this bank shall sue or be sued, come within the description now contended for. Take, for instance, a trespass or a fraud committed by the bank, and suit brought by the injured party, in what sense could they be said to be cases arising under a law of the United States? Or, take the case of ejectment, suppose to recover part of the premises of the bankinghouse in Philadelphia, and not a question raised in the suit, but what arises under the territorial laws of the country, and what cir cumstances characterize that as a case of the proper description to give this court jurisdiction? If this cause of action arises under a statute, why is not the statute referred to. and the provision particularly relied on, if there is any other than what the averments specify?

Various instances have been cited and relied on, in which this right of suit in the courts of the United States has been given to particular officers of the United States. But on these I would remark, that it is not logical to cite as proofs the exercise of this right, in instances which may themselves be the subject of con

stitutional questions. It cannot be intended to surprise this court into the recognition of the constitutionality of the laws so cited. But there is a stronger objection; no such instance is in point, until it be shown that Congress has authorized such officers to bring their private contracts and private controversies into the courts of the United States. In all the *cases cited, the individual [*902 is acting distinctly as the organ of government; but let them take the character of a mere contractor, a factor, a broker, a common carrier, and then let laws authorizing them to sue in the courts of the United States be passed, and I will acknowledge the cases to be in point; though I will still dispute the principle, that a repetition of error can convert an act into law or truth. The distinction is a clear one between all these cases and the bank. The latter is a mere agent or attorney, in some instances; in others, and especially in the cases now before the court, it is a private person, acting on its own account, not clothed with an official character at all. But the acts of public officers are the acts of government; and emphatically so, in suits by the Postmaster-General; the money to be recovered being the property of the United States, it may be considered that they are parties to the suit, just as those states are to the suits by or against their Attorney-General, where he is by law authorized to bring and defend suits in his own name officially. When the United States are parties, the grant of jurisdiction is general. But there is express law also for every contract that the postmaster enters into, or it will be in vain for him to bring his suit in his own name or otherwise. It would be in vain for him to rely simply on his being made postmaster under an act of Congress; in which point alone, there would seem to exist any analogy between his case and that of the bank.

As to the instance of the action given under the patent law, it has been before remarked. that so *entirely is its existence blend- [*903 ed with an act of Congress, that to prosecute it, it is indispensable that the act should be set forth as the ground of action. I rather think it an unfortunate quotation, since it presents a happy illustration of what we are to understand by those cases arising under a law of Congress, which in their nature admit of an exercise of original jurisdiction. The plaintiff must recover, must count upon the act of Congress; the constitutional characteristic appears on the record before the defend. ant is called to answer; and the repeal of the statute before judgment, puts an end to his right altogether. Various such cases may be cited. But how the act of Congress is to be introduced into an action of trespass, ejectment, or slander, before the defendant is called to plead, I cannot imagine.

Upon the whole, I feel compelled to dissent from the court, on the point of jurisdiction; and this renders it unnecessary for me to express my sentiments on the residue of the points in the cause.

Decree affirmed, except as to interest on the amount of the specie in the hands of the defendant, Sullivan. 3

904"] [*Constitutional Law.]

corporator, bring this cause within the clause in the constitution which gives jurisdiction to

V.

The circuit courts of the United States have jurisdiction of suits brought by the Bank of the United States against another bank, incorporated under a law of a state, and of which the state itself is a stockholder, together with private individuals, who are citizens of the same state with some of the stockholders of the Bank of the United States.

The Bank of the United States may sue in the circuit courts, as indorsee or bearer of a promissory note, although the original payee or indorser could not sue in the same courts, being a citizen of the same state with the defendants.

The circumstance that a state is a member of a private corporation, will not give this court orig inal jurisdiction of suits where the corporation is a party, or oust the circuit courts of the jurisdiction vested in them by law.

Tofa division of opinion between the judges HIS cause was brought up on a certificate of the Circuit Court of Georgia, upon the questions arising in it, and was argued by the same counsel with the preceding case of Osborn v. The Bank of the United States.

Mr. Chief Justice Marshall delivered the opinion of the court:

In this case, the petition of the plaintiffs, which, according to the practice of the state of Georgia, is substituted for a declaration, is founded on promissory notes, payable to a person named in the note, "or bearer," and states 905*] that the notes were *"duly transferred, assigned and delivered" to the plaintiffs, "who thereby became the lawful bearer thereof, and entitled to payment of the sums therein specified; and that the defendants, in consideration of their liability, assumed," etc.

The Planters' Bank pleads to the jurisdiction of the court, and alleges that it is a corporation, of which the state of Georgia, and certain individuals, who are citizens of the same state with some of the plaintiffs, are members. The plea also alleges that the persons to whom the notes mentioned in the petition were made payable, were citizens of the state of Georgia, and, therefore, incapable of suing the said bank in a circuit court of the United States; and being so incapable, could not, by

transferring the notes to the plaintiffs, enable

them to sue in that court.

To this plea the plaintiffs demurred, and the defendants joined in demurrer.

On the argument of the demurrer, the judges were divided on two questions:

1. Whether the averments in the declaration be sufficient in law to give this court jurisdiction of the cause.

2. Whether, on the pleadings in the same, the plaintiffs be entitled to judgment.

The first question was fully considered by the court in the case of Osborn v. The Bank of the United States, and it is unnecessary to repeat the reasoning used in that case. We are of opinion that the averments in the declaration are sufficient to give the court jurisdiction of the cause.

906*] *2d. The second point is understood to involve two questions:

1. Does the circumstance that the state is a

2. Does the fact that the note is made payable to a citizen of the state of Georgia, or bearer, oust the jurisdiction of the court?

1. Is the state of Georgia a party defendant in this case? If it is, then the suit, had the 11th amendment never been adopted, must have been brought in the Supreme Court of the United States. Could this court have entertained jurisdiction in the case?

We think it could not. To have given the Supreme Court original jurisdiction, the state must be plaintiff or defendant as a state, and must, as a state, be a party on the record. A suit against the Planters' Bank of Georgia is no more a suit against the state of Georgia than against any other individual corporator. The state is not a party, that is, an entire party, in the cause.

If this suit could not have been brought originally in the Supreme Court, it would be difficult to show that it is within the 11th amendment. That amendment does not purport to do more than to restrain the construction which might otherwise be given to the constitution; and if this case be not one of which the Supreme Court could have taken original jurisdiction, it is not within the amendment. *This is not, we think, a [*907 case in which the character of the defendant gives jurisdiction to the court. If it did, the suit could be instituted only in the Supreme Court. This suit is not to be sustained because the Planters' Bank is suable in the federal courts, but because the plaintiff has a right to sue any defendant in that court, who is not withdrawn from its jurisdiction by the constitution, or by law. The suit is against a corporation,, and the judgment is to be satisfied by the property of the corporation, not by that of the individual corporators. The state does not, by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the state of Georgia, although the state holds an interest in it.

It is, we think, a sound principle, that when a government becomes a partner in any trading company, it devests itself, so far as concerns the transactions of that company, of its

sovereign character, and takes that of a pri-J

vate citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many states of this Union who have an interest in banks, are not suable even in their own courts; yet they never exempt the corporation from being sued. The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all *the privileges of [*908 that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act.

The government of the Union held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States was not a party to suits brought by or against the bank in the sense of the constitution. So with respect to the present bank. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privilege which is not derived from the charter.

We think, then, that the Planters' Bank of Georgia is not exempted from being sued in the federal courts, by the circumstance that the state is a corporator.

2. We proceed next to inquire, whether the jurisdiction of the court is ousted by the circumstance that the notes on which the suit was instituted, were made payable to citizens of the state of Georgia.

Without examining whether, in this case, the original promise is not to the bearer, the court will proceed to the more general ques tion, whether the bank, as indorsee, may maintain a suit against the maker of a note 909*] payable to a citizen of *the state. The words of the judiciary act, section 11, are, "nor shall any district or circuit court have cognizance of any suit, to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange."

This is a limitation on the jurisdiction conferred by the judiciary act. It was apprehended that bonds and notes, given in the usual course of business, by citizens of the same state, to each other, might be assigned to the citizens of another state, and thus render the maker liable to a suit in the federal courts. To remove this inconvenience, the act which gives jurisdiction to the courts of the Union over suits brought by the citizen of one state against the citizen of another, restrains that jurisdiction, where the suit is brought by an assignee, to cases where the suit might have been sustained, had no assignment been made. But the bank does not sue in virtue of any right conferred by the judiciary act, but in virtue of the right conferred by its charter. It does not sue because the defendant is a citizen of a different state from any of its members, but because its charter confers upon it the right of suing its debtors in a circuit court of the United States.

If the Bank could not sue a person who was a citizen of the same state with any one of its members, in the Circuit Court, this disability would defeat the power. There is, probably not a commercial state in the Union, some of 910*] whose citizens are not members of the Bank of the United States. There is, consequently, scarcely a debt due to the bank, for which a suit could be maintained in a federal court, did the jurisdiction of the court depend on citizenship. A general power to sue in any circuit court of the United States, expressed in terms obviously intended to comprehend

every case, would thus be construed to comprehend no case. Such a construction cannot be the correct one.

We think, then, that the charter gives to the bank a right to sue in the circuit courts of the United States, without regard to citizenship; and that the certificate on both questions must be in favor of the plaintiff.

Mr. Justice Johnson. This cause is one in which, from the great importance of the ques tions it gave rise to, was certified to this court, on a pro forma difference of opinion, that it might undergo the fullest investigation, and give time for the maturest reflection.

The first of the points certified involved the question of jurisdiction; for my opinion on which, I must refer to the case of Osborn et al. v. The Bank of the United States, argued in conjunction with this, and decided this term.

That opinion is final on the judgment which I must give in the cause; but there were other questions, which, although not touched upon in the argument here, were very ably argued in the court below, and on which, having formed an opinion, I will make some remarks.

*The case of The Bank v. Deveaux, [*911 having decided that this court will look into the individual characters of the corporators plaintiffs, in order to give jurisdiction, where it depends on circumstances of the person, it was contended in the court below, that this court was bound, in justice, to look behind the charter of the bank defendant, in order to determine the individual characters of the corporators defendants also. And the pleas were so drafted as to exhibit to the court two grounds on which to decide against the jurisdiction of the Circuit Court, as depending on individual character. The one was, that a citizen of one state was suing a citizen of the same state; the other, that the state of Georgia was a defendant, being a member of the corporation defendant, and was exempt from suit under the 11th amendment. And on both these grounds, I see not how I can refuse my assent to the doctrine of the pleas. The case of Deveaux forms, I presume, one of the canons of this court. Ôn no other ground can that decision be law, but that the individual corporators were the real parties plaintiffs. The same principle, when applied to the corporation defendant, will make the individual corporators here the real defendants to the suit. If, then, the real plaintiffs and the real defendants are so related in personal character, as to preclude this court from taking jurisdiction, I see no ground on which we can sustain the demurrer, unless we reverse the decision in Deveaux's case.

So, also, with regard to the state of Georgia. An original suit against that state for the recovery *of a debt, could not be main- [*912 tained. Yet, if an original suit against a corporation be an original suit against each corporator, I see not wherein the case differs from that of a direct suit against the state. Suppose the case of a joint bond, given by a state and individuals, to an individual contractor, citizen of another state, what would except a suit on such a bond from the operation of the 11th amendment of the constitution? If it be said that the amendment al