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“individual self-assertion” to block up the subtle and delicate conducting vessel, the police power, one of two things might have happened—either the vessel is exploded, or it ceases to function on account of over-saturation. The same thing is true of all other notions.52 As soon as you fill them with solid matter, you are sure to come to an 'impasse.'
The general Anglo-American tendency to concretize abstract notions is quite striking. This fact has been brought forth by J. Williams, who, in his scholarly book on “Dante as a Jurist,” has noted: “One thing neither Dante nor the Roman jurists ever did, namely, to use the word “justice' in the strange English sense, as “justice of the peace,' 'Mr. Justice X. Other instances of concretizing Roman abstract terms are 'contract,' 'obligation,' 'will,' which in England may all mean an actual physical document.”58 We must remember that as soon as an abstract notion is concretized, it is apt to be blocked up, and in juristic philosophy, at least, such a habit is fatal. “The letter killeth, but the spirit giveth life.” Lord Penzance, in Combe v. Edwards,64 expressed an extraordinarily philosophical though somewhat naïve opinion: “Law is, or ought to be, the handmaid of justice, and inflexibility, which is the most becoming robe of the latter, often serves to render the former grotesque.” Yes, the so-called "strong decisions" are grotesque, indeed; like the grotesque arts, there is something unnatural about them, though they claimed to be based upon natural rights. The robe of the mistress does not suit the figure of the maid-servant. “We have learned slowly that it is the end, namely, to satisfy human wants, that is constant; not the exact machinery of satisfying them."55 What Justinian and Tribonian saw by pure intuition—“Justice is the set and constant purpose to render everyone his due":
we have learned only through experience. What is due to everyone was not laid down concretely; it has to change from time to time; the only thing which ought to be certain and inflexible is the purpose.
Whether the judges or the legislators are faithful to the purpose is for the public opinion of each period to tell. Sophists, it is true, have doubted the trustworthiness of, for instance, the institution of Equity, and have likened it to the Chancellor's foot;57 yet it must not be forgotten that on the whole it has done more good than
52. For an excellent discussion see Drake "Sociological Interpretation of Law" Mich L. Rev. XVI 599 ff.
53. P. 5.
evil. If Selden were alive this moment, he would probably say: “The theory of social interests is a roguish thing. It is not a trustworthy standard of justice. It will vary with the size of the judge's head. In fact, it is nothing more than an image of the 'gentleman's own mind.'” Yet, not being wholly spoiled by learning, nor, indeed; specially favored by the spirit of Mephistopheles, I am inclined to take an open-air view of the matter, and to say with Edmund Burke that plain good purpose is as easily discovered at the first sight as fraud is surely detected at last.68
What Justice Holmes said about the constitutional law is, in effect, true of all law in general: "Now and then an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take chances, and in the majority of instances, no doubt, justice will be done."59 Both Holmes and the author of the theory of social interests possess common sense in an uncommon degree, and this is precisely why they are in perfect agreement with my noble master, the logical-minded Stammler, for robust common sense and genuine logic arrive at the same conclusions, however different their ways of approach and points of departure.
58. There seems to be a psychological reason for this. Russell says: "Where instinct is least liable to error is in practical matters as to which right judgment is a help to survival; friendship and hostility in others, for instance, are often felt with extraordinary discrimination through very careful disguises": "Our Knowledge of the External World” p. 21. What is true of the individual in this matter is true of the social group as a whole.
59. Blinn v. Nelson 222 U. S. 7.
CRIMINAL RESPONSIBILITY OF THE
BY JOSEPH F. FRANCIS*
Should private corporations be held responsible for the crimes of its agents acting on behalf of the corporation? In this era of criminal prosecutions of corporations this question may seem to be out of place as too simple and too well settled to admit of further serious consideration. This is, however, not the case. The question of the penal responsibility of corporations is far from settled and this question has too often been dismissed as too simple for careful analysis.
Let us consider the state of the law as it relates to penal responsibility, examine the reasons generally given for holding corporations penally responsible, and finally look for the true considerations involved with a hope of reaching a more intelligent conclusion than is generally reached in these cases.
In the sense that a crime, as a tort, is unauthorized by the corporate charter it is ultra vires. It was once strenuously contended that a corporation could not commit a tort. This contention has not prevailed and the law is now well settled that a corporation is liable for torts committed by its agents while acting in their scope of authority in an intra vires act of the corporation. Have these old contenders been defeated and their reasoning exploded or have they merely been silenced? Or have the courts merely reached the correct result without bothering too much about the reasons ? If a corporation can commit a tort, does it not necessarily follow that it can commit a crime? If corporations are held responsible for their torts, does it not necessarily follow that they should be held for their crimes ? Before answering the last two questions in the affirmative let us briefly refresh ourselves on the fundamental nature of a corporation.
THE NATURE OF A CORPORATION
The writer would refrain from reviewing this phase of the subject, in view of the fact that it has been so adequately treated in text-books and magazine articles, were it not for the fact that herein
*s Professor of Law in the University of Oklahoma.
lies the kernel of our problem and for the further fact that courts consistently confuse, or refuse to recognize, the true nature of a corporation.
In our law there are but two classes of legal persons, namely, natural persons and bodies corporate. The first class is by far the more important, for, in the last analysis, the law is interested only in claims and obligations of natural persons, and all juristic persons are merely fictions of the law to better deal with these claims and obligations of men. Thus the corporate person is but a fiction of
1. This is not necessarily so; other systems have recognized and do still recognize other legal persons. Korkunov “The Theory of Law” (W. G. Hasting's translation) p. 201; Gray "Nature and Source of Law" p. 27 et seq.; Markby "Elements of Law" (6th ed.) p. 86. But see a criticism of this classification as "incoherent” by the reviewer of Hohfeld's "Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays," in Ill. Law Rev. XVIII 281-283. The reviewer justly points out an error that runs all through our legal terminology, that is, the tendency to materialize jural ideas. We come by this honestly. We are slowly getting away from this antique terminology saddled upon us by the lawyers of the Middle Ages, who had a mental incapacity to conceive legal claims and obligations in the abstract. See Maitland “Mystery of Seisin,” Sel. Essays Anglo-Am. Hist. III 591.
2. Korkunov 201 op. cit., supra, note 1. Salmond "Jurisprudence" (3rd ed.) 275, 294. “A corporation de jure may be defined as a body of persons legally authorized to act as a unit. Edward H. Warren "Collateral Attack on Incorporation” Harv. L. Rev. XXI 305, 306:
In point of substance the members of the corporation are the real parties in interest or the real principals in the transaction (citing authorities) if justice requires that their rights and liabilities as individuals be considered, the doctrine of corporate entity does not stand in the way."
3. In addition to authorities cited in notes 1 and 2, see Brissaud “History of the French Private Law" 896 n. 2, "in answer to the Germanists, Beseler and Gierke, that corporations are not fictitious beings, but actual beings, recognized by the state and not created by it, we read: “. they (the old authors) do not pretend that the law creates legal persons 'ex nihilo' but merely that they had to have the authorization of the law to operate, which amounts to the same thing as saying that the state has the right to forbid them; nobody denies that the state has this right. It is quite certain that the fiction of personality does not account for everything; but fictions are not created with the object of accounting for things; they are formulae devised by the jurists, and, as it were, a sort of a convenient coinage which is in circulation in the law. A thing that proves in favor of this fiction is the fact that no one else has succeeded with replacing it with anything else." See also Maine “Ancient Law" (5th ed.) 26, 27, 28, and Jhering "Geist d. rom. R.” (4th ed.) iii 301 et seq., where he classifies all fictions into two classes: namely, "historic" and "dogmatic.” The purpose of the historic fiction, he points out, is a device to change the law without appearing to change it. The loss and then casual finding in trover, and the lessee's entry and ouster in ejectment are examples of what he terms the historic fiction. The purpose of the dogmatic fiction is not to change the law but to supply convenient and well understood analogies and terms for the old and the new law alike. It is embodied in such terms as constructive possession, constructve notice, presumption of death after a seven years' unheard from absence. See also Professor Canfield's classification of fiction in this connection in Col. L. Rev. XIV 469, 471, where he classifies fictions as "arbitrary” and “rational." Both Canfield and Jhering would put the corporation in the second group of his classification. But Canfield's rational the law created by lawyers as a short hand or algebraic expression for the determination of the relative claims and obligations of individuals engaged in a joint enterprise. When A assumes a certain distinct relationship to B, in respect to his person or his property, the law knows well how to deal with the parties in respect to their respective rights, privileges, powers, and immunities on the one hand and their duties, no-rights, liabilities, and disabilities on the other. But when A, B, and C embark upon a joint adventure and deal with X, Y, and Z, the law has more difficulty in declaring to each his respective claims and obligations, as warranted by the reasonable expectations of all the parties concerned. Now multiply the parties on each side by one thousand and scatter them to the four points of the globe and the individual conceptions of ownership break down. The law must invent new formulas to keep pace with economic progress. How is a contract to be made with all of these co-owners? How shall the property be treated on the death or bankruptcy of one of these? To what extent shall each be liable for the debts, torts, and crimes of this collective body? How shall profits be divided ? How is one to get into and get out of such a firm ? The members have already personified the group and attributed it claims and obligations, as a figure of speech, to better express their own individual respective claims. It owned property, it owed debts, it had a reputation and enjoyed the good-will of its customers. Since the law exists for man, and not man for the law, the law had to devise formulas for fulfilling the reasonable expectations of the business world concerned. Joint ownership, tenancy in common, the partnership, the club, the trust, and the corporation are all formulas devised by the courts to render unto each man that which is justly his due. It is to be emphasized, however, that the true subject is a natural person. He alone has claims to be awarded. To him alone are commands directed. He alone acts, in a legal sense, and he alone is punished by the law. It is futile to try to punish a fiction or a figure of speech. fictions are not coterminous with Jherings dogmatic fictions; for instance. Canfield calls the presumption of death fiction, “arbitrary.” Jhering would call it "dogmatic.” See also, Raphael Demos “Legal Fictions" Int. J. Ethics XXXIV 37.
4. The terminology here used is that of the late Professor Wesley Hohfeld as expounded in Yale L. Jour. XXIII 16. A real service to clear thinking is here actively instituted and has been ably carried on, especially by Professors Walter W. Cook and Arthur L. Corbin.
5. See Gray 37 op. cit., supra note 1. "We have defined a man's legal rights as those which society will enforce on his motion, but with more entire accuracy that a man's legal rights are the rights which society will enforce on the motion of some one authorized by society to put his rights in motion."