question, respecting the right to make a particular contract, or to acquire a particular property, or to sue on account of a particular injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in Whether it be in fact relied on, or not, every cause.

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 choose 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 questions be made in the cause or not. The appellants say, that the case arises on 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, 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 still originates in, and is sustained by, that charter.

§ 1647. "The clause, giving the bank a right to sue in the circuit courts of the United States, stands on the same principle with the acts 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 judiciary 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 case; because that suit, too, is 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 without its authority.

§ 1648. "If it be said, that 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 asserts the right of 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 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 fact 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.

§ 1649. "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; and that congress may, with the same propriety, give a naturalized citizen, who is the mere creature of a 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, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being it has made, all the faculties and capacities, which 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, in the view of the constitution, on the footing of a native. The constitution does not authorize con

gress 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 able to bestow on this subject, we are of opinion, that the clause in the act of incorporation, enabling the bank to sue in the courts of the Uuited States, is consistent with the constitution, and to be obeyed in all courts." 1

§ 1650. Cases may also arise under laws of the United States by implication, as well as by express enactment; so, that due redress may be administered by the judicial power of the United States. It is not unusual for a legislative act to involve consequences, which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say, that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control. The collectors of the revenue, the carriers of the mail, the mint

1 Osborn v. Bank of the United State, 9 Wheat. R. 821 to 828. See also Bank of the United States v. Georgia, 9 Wheat. R. 904.

establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protected, while in the line of their duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts, by which those institutions are created; and is secured to the individuals, employed in them, by the judicial power alone; that is, the judicial power is the instrument employed by the government in administering this security.1

1651. It has also been asked, and may again be asked, why the words, "cases in equity," are found in this clause? What equitable causes can grow out of the constitution, laws, and treaties of the United States? To this the general answer of the Federalist seems at once clear and satisfactory. "There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable, rather than of legal jurisdiction, as the distinction is known and established in several of the states. It is the peculiar province, for instance, of a court of equity, to relieve against what are called hard bargains: these are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue, and unconscionable advantage taken of the necessities, or misfortunes of one of the parties, which a

1 Osborn v. Bank of United States, 9 Wheat. R. 865, 866; Id. 847, 848.

2 The Federalist, No. 80. See also 1 Tuck. Black. Comm. App. 418, 419; 2 Elliot's Debates, 389, 390.