name, this court would not have felt itself justified in declaring that such a law transcended the constitution.

The controversy is substantially between aliens, suing by a corporate name, and a citizen, or between citizens of one state, suing by a corporate name, and those of another state. When these are said to be substantially the parties to the controversy, the court does not mean to liken it to the case of a trustee. A trustee is a real person capable of being a citizen or an alien, who has the whole legal estate in himself. At law, he is the real proprietor, and he represents himself, and sues in his own right. But in this case the corporate name represents persons who are members of the corporation.

If the constitution would authorize Congress to give the courts of the Union jurisdiction in this case, in consequence of the character of the members of the corporation, then the judicial act ought to be construed to give it. For the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.

That corporations composed of citizens are considered by the legislature as citizens, under certain circumstances, is to be strongly inferred from the registering act. It never could be intended that an American registered vessel, abandoned to an insurance company composed of citizens, should lose her character as an American vessel; and yet this

would be the consequence of declaring that the members of the corporation were, to every intent and purpose, out of view, and merged in the corporation.

* 92

The court feels itself authorized by the case in 12 Mod., on a question of jurisdiction, to look to the character of the individuals who compose the corporation, and they think that the precedents of this court, though they were not decisions on argument, ought not to be absolutely disregarded.

If a corporation may sue in the courts of the Union, the court is of opinion that the averment in this case is sufficient.

Being authorized to sue in their corporate name, they could make the averment, and it must apply to the plaintiffs as individuals, because it could not be true as applied to the corporation.

Judgment reversed; plea in abatement overruled, and cause remanded.

The United States v. Peters.

NOTE.

THE case is of interest mainly as it shows the temper of the country toward the federal courts in the first decade of the nineteenth century. The legislature of Pennsylvania, disliking a judgment of the federal court in Pennsylvania, passed an act which was, in substance, a cancellation of that judgment on the ground that the federal court was without jurisdiction. Such an act would be unthinkable to any modern lawyer or in any legislature to-day, but it is an admirable example of the hostility and jealousy existing toward the federal courts for a long period after their inception, until, under the strong hands of Marshall and his successors, they became an integral part of the business system of the country. And the case is alike remarkable as illustrating the need of the federal courts to establish a consistent and just system of admiralty law among the states.

The case arose on an application for a writ of mandamus commanding Judge Richard Peters, judge of the District Court for the Pennsylvania District, to order process to issue to enforce obedience to the judgment in a civil cause between one Olmstead and others, which had seemed obnoxious to the Pennsylvania legislature. This Judge Peters had refused to do because he could not or dared not, for reasons that cogently appear from a note that is attached to the report of the case. That note reads as follows:

'On Saturday, March 5th, 1808, upon the affidavit of Olmstead, a rule was granted that Judge Peters should show cause by the next Saturday, why a mandamus should not issue. On Saturday,

March 12th, a letter was received by one of the counsel for Olmstead, from Judge Peters, acknowledging service of the rule; and stating that an act of the legislature of Pennsylvania had commanded the governor of that state to call out an armed force to prevent the execution of any process to enforce the performance of the sentence. That such being the state of things he should not direct process to issue unless he should be so ordered by this court; whereupon a mandamus nisi was granted, returnable at the next term."

The United States

ບ.

Judge Peters.

[5 Cranch, 135.]

1809.

The facts appear sufficiently in the opinion. Rodney (Attorney General), Lewis, and F. S. Key of counsel for Olmstead and others submitted the return of the mandamus to the consideration of the court without argument.

February 20. Marshall, Ch. J., delivered the opinion of the court as follows:

With great attention, and with serious concern, the court has considered the return made by the judge for the District of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse's Executrixes, or to show cause for not so doing. The cause shown is an act of the legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires the governor to demand, for the use of the