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intention of being governed as little by its laws as they can manage. Yet entrance with such an intention alone has never been made a crime. As a matter of fact, their entrance into a territory cannot be said to constitute consent to be governed by the laws of that territory or even evidence it, because consent is neither asked nor necessary to the application of those laws.
The courts are generally entrusted with all the judicial jurisdiction actually exercised by their sovereign, only to be assumed, however, when invoked by suitors in the ways provided by the procedural law. This jurisdiction is over persons and things. When the former, it is said to be in personam; when the latter, in rem. When jurisdiction is exercised over property to give damages to the plaintiff without jurisdiction of the person of the defendant, it is said to be quasi-in rem. As the principles upon which jurisdiction in rem and quasi-in rem depend are simple and well settled, our attention may be confined to jurisdiction in personam.
In order to impose a personal obligation by means of a judicial proceeding, the court must get jurisdiction in one of four ways: (1) by presence, (2) by domicile, (3) by allegiance, (4) by consent. It is conceived that a court may obtain jurisdiction of a foreign corporation in two of these ways: by its consent or by its presence. The foreign corporation, assuming it to be a single group chartered by a single foreign state, is domiciled in and owes allegiance only to that state.
A brief survey of the history and legal theories of group personality affords the best avenue of approach to our subject. The mature development of the law of corporate association then suggests the advantage of treating next jurisdiction over foreign corporations. As space does not permit a discussion of the extent of state control of foreign corporations engaged in interstate commerce, the only constitutional questions raised in this division of the article will be those depending on principles of Conflict of Laws. The last division of the article covering jurisdiction of foreign unincorporated groups and individuals involves a study of the comity clause of the Constitution. It may be profitably subdivided into (a) scope of the comity clause, (b) jurisdiction over foreign unincorporated groups, and (c) jurisdiction over non-resident individuals.
In the early law, the group of kindred living together constituted the legal unit. It was responsible for the delicts of its members, and all obligations were owed to it. It came to be represented by paterfamilias, who alone had legal personality, that is, was the subject of rights and duties. He owned the property of the group, he was liable for the delicts of its members, and he was entitled to their acquisitions. But as Sir Henry Maine pointed out, the progress of law has, until recently, been from status to contract, that is, from the legal recognition of but a single member of the group, with the rest in potestas, to the recognition of each member as the subject of rights and duties equal with the first save in so far as natural incapacity prevents. Hence today we say that the individual is the natural legal unit.
But dealing with man as an individual does not exhaust his jural significance. His activities and interests are not merely individual; they are also collective. His home life is bound up with the family; his economic life is bound up with his business associates. He seeks to secure his religious interests in the church, and his more important communal interests in the state and its various subdivisions. Passing from the individual to the group, we find its members working as a unit to secure group ends. Ordinarily, while engaged in group pursuits, a man's individual ends are for the moment submerged — his activity is merely a phase of the group activity directed towards effecting the group purpose. An excellent example of this is an army in action. The individual's interest in protecting himself on the one hand, and in self-glorification on the other, is absolutely subordinated to the group purpose, the destruction of the enemy. Further, there is a group consciousness and a group will with which the individual consciousness and individual will are assimilated. It is elementary that men act in groups in a way that would be incomprehensible in most of the members of the group taken individually. Mob psychology attempts to deal with some of these phenomena. Corporation and national morality are notoriously lower than individual morality.
The group directs its activities in ways precisely analogous to those adopted by the individual. It contracts as an entity, it com
? MAINE, ANCIENT Law, Ch. V — Patri Potestas.
mits delicts, it holds group possessions, and acts generally as a unit. Indeed the superiority of group over individual action is due to the fact that the group can apply the method of the individual with many times his force. Hence it would appear that the group is as capable of supporting legal personality as the individual, while the protection of group interests seems to require group rights to nearly the same degree that individual interests require individual rights. But what is more important, the protection of society makes it imperative that the group be subject, as such, to duties, and duties distinct from those imposed on its component members, because the group is often infinitely more formidable than the sum of its members.
The law has recognized this social aspect of man's life and his group interests in various ways. Family interests are protected through the laws relating to the disposal of the property of husband and wife, through community property laws, family exemption laws, through death statutes, and through the actions allowed for alienation of affections and seduction. Because, however, of the small size of the group it has been possible adequately to secure these interests by conferring individual rights upon the members of the family against one another and against the whole world, and imposing the correlative obligations. Thus the law, while not dealing with the family group directly, makes the relations of its members to the group itself and to the outside world, the bases of the rights which afford it legal protection. This has similarly been true of man in his economic relations. Where his common interests have been those of a small group or partnership, they have been treated not unlike the interests of the family. While the law recognizes the community of interest and of activity, nevertheless it has, until recently, secured them entirely through the individual. But it should be remembered that this method is not a necessary one, and that it persists only because of legal convenience and legislative inertia. The partnership has always been treated as a unit in the mercantile world. As conditions require, it is daily coming to be treated more like a unit in the legal world.3
For a long time the only groups with which the state directly concerned itself were those which exercised such a degree of social con
• Uniform Partnership Act; Bankruptcy Act; Statutes making large partnerships suable in firm name to be discussed infra.
trol as to be the state's competitors. Such groups were so large that it was obviously impracticable to deal with them through their individual members. That was too cumbersome a way to secure the interests of the group, and an almost impossible way of securing the interests of society in the control and regulation of the group. When the mediæval courts declared it a usurpation against the king to set up a corporation without his charter, they had no reference to our ordinary trading corporations, and were not thinking of the privilege of limited liability. What the courts were striking at was the founding of municipal corporations and guilds, which, if not well under the royal control, might threaten the very monarchy itself. The royal apprehension will be readily understood if one but recalls the power of the City of London in the great feudal wars, and the exploits of the butchers' guilds of Paris when they made the rulers of France, and held the mighty Burgundy at their beck and call. The guilds and municipal corporations exercised a control over their journeymen and burghers, respectively, covering the most important phases of their economic and communal life, and existed for the sole purpose of furthering their interests. In turbulent days, such organizations could only be tolerated as the vassals of the king, exercising their governmental authority by virtue of his charter. This is the secret of the kings' jealousy, and control of the corporate franchise, since nearly all early corporations which were not religious were governmental. In the later Tudor periods, when the government had become more firmly settled, the great trading corporations became more common. But these were also governmental in their nature, and in time acquired and governed great territories for the Crown of England under its charters. Gradually, however, the governmental feature became less significant, and corporations became popular because of their facilities for obtaining capital from the investing public and the limited liability involved. The state, nevertheless, retained control of the corporate franchise, not now as a measure to insure its own safety, but in order to protect the public from the ruinous stock speculations which finally led to the Bubble Act. In this way we have our modern corporation coexisting with the trading copartnership, and differing from it as a practical matter only in the possession of certain legal privileges.
• British East India, London, and Plymouth Companies.
The private corporation has become completely distinguished from the public corporation.
Thus, up to the middle of the nineteenth century, the law of corporations furnished but meager jural material for the regulation of our varied forms of group activity. As a matter of fact there were relatively very few private corporations, and until well into the last century practically all of the cases dealt with public corporations. After Tudor times, however, the English state, although still retaining a close grasp on the corporate franchise, did not display its earlier jealousy of association. Standing armies had made single groups of artisans or untrained burghers comparatively innocuous. Hence we find developing contemporaneously with the private corporation all sorts of unincorporated associations ranging from the closely knit church organizations, Catholic and Non-Conformist, to the loose underwriting groups of the Lloyd's type; - from the great friendly societies to the select social clubs, each securing adequate legal protection behind its hedge of trustees. That absolutely unique of English legal institutions, the adaptable trust cleverly shaped by centuries of the subtlety of the English Bar, secured practically all the advantages of corporate organization without any of its drawbacks. The citadel of corporate association, made impregnable to a frontal attack by the imposing maxims of Crown lawyers, was furnished with an easy approach from behind. Nevertheless the personality of these groups as such was not recognized by the courts, and hence we have the complete separation of legal from natural personality in the law of group activity.
But coming into the nineteenth century, the state again faced the problem of dealing with combinations of men which threatened to shake its very foundations. The discontent of the great proletarian masses under the new industrial régime made the struggles of small groups of burghers and journeymen seem but teapot tempests. Little consideration was given to the interests of the group; the legislature only thought to secure the state. At first it sought
3 MAITLAND, COLLECTED PAPERS, 321 (Trust and Corporation); Introduction to GIERKE, POLITICAL THEORIES OF THE MIDDLE AGE.
Williston, History of Law of Business Corporations, 3 SELECT Essays AngloAMERICAN LEGAL HISTORY 195; Carr, Early Forms of Corporateness, 3 SELECT Essays 161; 2 HOLDSWORTH, HISTORY OF ENGLISH LAW, 362; 1 POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW, 2 ed., 486; 3 MAITLAND, COLLECTED PAPERS, 271