McNutt v. Bland. 2 H. and their proceedings are erroneous if the jurisdiction be not shown upon them." them." 5 Cranch, 185. 5 Cranch, 185. The same in effect, the same indeed. in terms, is the decision of this court in Montalet v. Murray, 4 Cranch, 46. Again, the principle that the character which authorizes access to the circuit court must be apparent upon the record is strikingly exemplified in Chappedelaine et al. v. Dechenaux, 4 Cranch, 306. In this case the plaintiffs were trustees, not suing in their own interest; yet, as they were aliens, and, as such, entitled to sue in the circuit. courts of the United States, this court, in virtue of that character, and their title flowing therefrom apparent on the record, sustained the jurisdiction of the circuit court. Passing, with a mere mention of them, the cases of The Hope Insurance Company v. Boardman et al. 5 Cranch, 57; Hodgson and Thompson v. Bowerbank et al. 5 Cranch, 303; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267; The Corporation of New Orleans v. Winter, 1 Wheat. 91, all full to the point, I will quote an emphatic and more comprehensive affirmation of Judge Washington in reference to the powers of the circuit courts, expressed in the opinion of that judge in McCormick and Sullivant, 10 Wheat. 199. " They are all (says he) of limited jurisdiction. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause." But the fullest and clearest exposition and vindication of the doctrine contended for in this opinion, will be found in the reasoning of Chief Justice Marshall, in delivering the decision in the case of Osborn v. The Bank of the United States. The portion of the reasoning particularly referred to commences on the 856th page of the 9th volume of Wheaton. "The judicial power of the Union," says the chief justice, "is also extended to controversies between cit izens of different States; and it has been decided that the character of the parties must be shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest; but it has never been suspected that, if the executor be a resident of another State, the juris * diction of the federal courts could be ousted by the fact [* 23 ] that the creditors or legatees were citizens of the same State with the opposite party. The universally received construction in this case is, that the jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record. Why is this construction universal? No case can be imagined in which the existence of an interest out of the party on the record is more unequivocal McNutt v. Bland. 2 H. than in that which has been stated. Why, then, is it universally admitted that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is, because the jurisdiction of the court depends not upon this interest, but upon the actual party on the record." Again he remarks, p. 857: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against States, is of necessity limited to those suits in which a State is a party on the record." This reasoning of the late chief justice seems to meet the present case in every aspect of which it is susceptible, and to dispel every shade of doubt that could possibly be cast upon it. The doctrine this reasoning so well sustains, is reaffirmed by the same judge, in the still later case of The State of Georgia v. Juan Madrazo, 1 Pet. 122; and amongst other authorities there cited, the principles ruled as above mentioned in Osborne v. The Bank of the United States are referred to and approved. Vide also Keary et al. v. The Farmers and Mechanics' Bank of Memphis, 16 Pet. 89. Alexander McNutt, in the case under examination, must be regarded as a private person acting in a private capacity; at most, as a mere agent under a law of Mississippi, in whom the interests of other individuals may to a particular extent have been vested, and through whom they were authorized to sue. He represented or was identified with no political or fiscal rights or interests of the State of Mississippi. That State had no interest involved in the conducting of that suit by McNutt, and much less was she a party to the record in that suit. Standing then in the relation of a mere agent in the transaction, and there being no law of the United States investing the federal courts with jurisdiction as incident to such agency, he could have access to those courts, and the courts themselves could have jurisdiction, solely in virtue of his character of citizen of a [24] State different from that in which the defendants resided, and that character it was indispensable should appear upon the record. These are positions which it has seemed to me impossible successfully to assail; positions encompassed with a chain of authorities comprehending the entire existence and duration of the government itself. This, however, is said to have been broken by the act of this court, and by that act an opening made for further power and jurisdiction in the circuit courts. The means by which such important consequences are supposed to have been effected, is the decision of the case of Browne et al. v. Strode, to be found in McNutt v. Bland. 2 H. 5 Cranch, 303. In this case, which was submitted without argument, and in which the certificate directed to the circuit court is comprised in two lines, no reason whatever is assigned for the conclusion at which the court appear to have arrived. The facts of the case, as presented in the short abstract of it, are thus stated: "It was an action upon an executor's bond given in conformity with the laws of Virginia. The object of the suit was to recover a debt due from the testator in his lifetime to a British subject. The defendant was a citizen of Virginia. The persons named in the declaration as plaintiffs, were the justices of the peace for the county of Stafford, and were all citizens of Virginia." The court ordered it to be certified as their opinion "that the court below has jurisdiction in the case." This is the whole case, and it is confidently believed to stand entirely solitary; without support, and without a likeness in the whole history of our jurisprudence; and, in commenting upon this case, it may be safely asserted, that if the court in their certificate have intended to affirm, that the holders of equitable interests, cestui que trusts, who are not the holders of the legal interests, or rights of action at law, are in actions at law the regular and proper parties to the record, then, indeed, they have not merely overturned the series of decisions in this court, from the case of Bingham v. Cabot, in 3 Dall. 382, decided in 1798, down to the case of the Governor of Georgia v. Madrazo, 1 Pet. 110; they have reversed, moreover, what is believed has been regarded as a canon of the law, wherever the principles of the common law have been adopted; and this they have accomplished by one short sentence, and without a single word to explain this mighty revolution. But can it be reasonably presumed that this court have in so cursory a mode intended to reverse its own wellconsidered, well-reasoned, and oft-repeated decisions; and this, too, without professing to review them-nay, without one word of reference to them of any kind? A presumption like [ 25 ] this seems scarcely compatible with that cautious reluctance with which innovation on settled principles is always admitted by the courts. Is it not far more probable, that the short and isolated abstract in question, exhibits an imperfect picture of the action and purposes of the court as applicable to some particular state of case which may not be fully and accurately given, for the record of the case in the court below is not set out in extenso. But let it be supposed that the objects and the language of the court, in the case of Browne and Strode, are accurately given; still, the inquiry recurs, does that case establish the law of this cause at the present day? Browne and Strode was decided in 1809. Turning, for the moment, from the decisions of this court prior to 1809, supposed (strong, and [* McNutt v. Bland. 2 H. explicit, and numerous as they are) to have been silently demolished by Browne and Strode, 5 Cranch, 303, what must be understood with respect to the decisions of Skillern's Executors v. May's Executors, 6 Cranch, 267; of Osborne v. The Bank of the United States, 9 Wheat. 738; of McCormick v. Sullivant, 10 Wheat. 199, and of The Governor of Georgia v. Madrazo, 1 Pet. 110, all posterior in date to 1809? If these cases are to be received upon the import solely of their own terms, uninfluenced by any reference to prior decisions, still, as they are posterior in time to Browne and Strode, and are wholly irreconcilable therewith, they should be understood as controlling and reversing that decision. How much stronger then, nay how irresistible appears this conclusion, when it is ascertained that the several decisions subsequent to 1809 refer expressly to those of previous date, rely upon them as forming their own foundation, and reaffirm them as the law of the federal courts. The only decision in this court which would appear, upon a superficial view of it, to give color to the decision of Browne et al. v. Strode, is the case of Irvine v. Lowry, reported in 14 Pet. 293. An attentive examination of the latter case, however, will show that, so far from resembling Browne and Strode, the facts of the two cases differ essentially, and that the former does not sustain, but, in effect, contradicts the latter. In Irvine v. Lowry, the action was in the name of Irvine, the payee of the note, for the benefit of the Lumberman's Bank. On behalf of Lowry, the defendant, exception was taken to the jurisdiction upon the ground that the Lumberman's Bank, the beneficiaries in the suit, consisted, in part, of persons who were citizens of the same State to which the defendant belonged. The case of Browne et al. v. Strode was relied on to show [* 26 ] that these beneficiaries and not the nominal parties or those who held the legal interest, should be considered the true parties on the record. This exception was overruled, and the jurisdiction sustained in the name of the party holding the legal right, in conformity with the current of authorities before cited. 'Tis true that, in the opinion delivered in this case, the decision in Browne et al. v. Strode is mentioned, and accounted for upon an hypothesis which by no means divests it of its anomalous character, any more than it rests the case of Irvine v. Lowry upon any real similitude with it. The argument is this, that although in Browne et al. v. Strode the plaintiffs and defendant were citizens of the same State, yet the statute of Virginia, which requires the executor's bond for the protection of creditors and legatees, passes the legal right to those whose interests the bond is designed to protect. To this reasoning several answers at once present themselves, either of which appears McNutt v. Bland. 2 H. to be sufficient. 1. If this could be so understood, it would leave the objection precisely where it stood before. The parties to the action would still be all citizens to the same State, whereas the judicial act declares they shall be (that is the plaintiffs and defendants) of different States. 2. The Virginia statute professes to effect no such transmutation of legal rights. 3. It confers no right of action on the beneficiaries under the bond. 4. It orders the prosecution of the suit in the names of the justices, the obligees, and by consequence, forbids such proceeding in the names of any other persons. 5. In point of fact, in the case commented on, (as doubtless would be found to be the fact in every suit ever instituted under the statute,) the action was brought in the names of the justices, so that those whose interests were designed to be protected by the bond, were never parties to the suit at all, much less the real or only parties representing the right of action under the bond. My mind, then, is impelled, by considerations like these, to the deductions, that Browne v. Strode, 5 Cranch, 303, does not furnish the rule for the decision of this cause; and that, if it ever was a rule for the federal courts, it has been clearly and emphatically annulled. As a corollary from the above reasoning and the cases adduced in support thereof, it follows, that Alexander McNutt, without appearing as the party plaintiff upon the record to be a citizen of some State other than that to which the defendants belong, could have no standing in the circuit court; and that, failing so to appear, the circuit court could have no jurisdiction over the cause. It cannot be requisite here to meet any argument, should [ *27 ] any be attempted, designed to maintain the right of McNutt to sue in virtue of his character of governor of Mississippi, and as such representing the sovereign or supreme executive power of that State. In that aspect, the suit would be virtually by the State herself, and not be the suit of Alexander McNutt; such a suit, too, could take place only where some direct right or interest of the State should be involved. Of such a controversy, the circuit court could unquestionably have no jurisdiction; this having been settled as one of those instances, the cognizance whereof belongs exclusively to the supreme court. Vide The State of Georgia v. Brailsford, 2 Dall. 402, and The Governor of Georgia v. Madrazo, 1 Pet. 110; Fowler et al. v. Lindsey et al. 3 Dall. 411. To any argument ab inconvenienti, which may be urged in support of the jurisdiction in this case, I would simply oppose the observations of two distinguished members of this bench, in reply to a similar argument addressed to them in the case of Turner, admin., &c., v. The Bank of North America, 4 Dall. 10; in which Chief Justice |