Open main menu

Page:Harvard Law Review Volume 1.djvu/231

This page has been proofread, but needs to be validated.
OSBORN v. THE BANK OF THE UNITED STATES.

THIS case, as it appears in 9 Wheat. 706, has always held rank as a leading case, and for several reasons: it contains one of the great opinions of our greatest Chief-Justice; it involved, as reported, the question of the amenability of State officers to judicial process and restraint when acting as such officers; it also involved the question of the right of a State to levy and collect a tax upon a branch of the Bank of the United States; and it involved other very interesting questions of constitutional and statutory law and construction.

The recent Virginia Coupon-Contempt cases, just argued[1] before the Supreme Court, have served to bring out the fact of which the writer, at least, had no previous knowledge, — that this case, as it appears in 9 Wheaton, is, as Mr. Bigelow says of Chandelor v. Lopus, referred to by Mr. McMurtrie in the last number of the Harvard Law Review, imperfectly reported; and to such an extent that, by a curious process of synecdoche, an incident of that case has been made, for fifty years apparently, to stand for the whole. The highest authorities seem to have fallen into this error. Thus, in two recent celebrated cases in the Supreme Court of the United States, — United States v. Lee, 106 U.S., and Louisiana v. Jumel, 107 U.S., — Mr. Justice Miller, in the former case, referring to Osborn v. Bank as “a leading case, remarkable in many respects,” describes it as a case which decided that “the decree of the Circuit Court ordering the restitution of money” seized by Osborn or his agent, Harper, from the vaults of the bank, was correct (page 214); and Mr. Chief-Justice Waite, in the latter case, refers to it as a case in which “the principle applied in the decision is thus stated in the head-note of the report: ‘A Court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner.’”

The importance of this case as an authority in the Virginia cases led the counsel for the bondholders to examine the original record of the case as it lies in the archives of the Supreme Court,


  1. The opinion in these cases has since been delivered, and will be noticed as soon as it is printed.—Eds.