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the group.

We hasten to add, however, that there is nothing fictitious or figurative about group action itself. The group is as real and as different from its members as are trees in a forest. Standing over this group of natural persons there is a juristic person—a sort of a guardian or trustee who is invested with claims and obligations in behalf of these natural persons acting as a group. In a corporation they can act only through this fictitious something that hovers over

In a sense the members are treated as minors. Now it is conceivable that the law might have required a real person, as in trusts, as a repository for these legal relations, but such was not in fact the development of the law.

It follows, from what we have said, that the idea of a corporation is not an indispensable one. It is merely a handy device whereby a multitude can carry on a joint enterprise with a vast accumulation of capital, skill, and material, with a limited risk of loss and with a small amount of personal attention. This could have been done nearly as well by a trusteeship. In fact, a corporation is but a step in advance of trusteeship by the elimination of the useless trustee, by turning the business over to the members which they conduct through their elected representatives, and leaving in place of the trustee, his ghost, the "persona ficta," as a repository for the claims of the members."

Can a corporation act? Certainly not in person. All acts of corporations are necessarily vicarious. It acts only through agents. But who appoints these agents and who defines their authority ? Certainly not the corporation. It can no more appoint an agent than it can contract without one. Indeed, if a corporation could appoint agents it would not need them. The agents are appointed by the members of the corporation, directly or indirectly, and the law imputes this appointment to the corporation itself. Obviously, the ultimate fact is that the law not only confers authority on the agents but also defines its limits without the consent of the principal. Notice that when a natural person acts by agent he appoints his own agent and to a large extent determines his authority. So when we say a corporation acts we are using the word in a fictional sense. It acts only when the law imputes acts to it. Will the law impute an illegal act to a corporation and punish the corporation for this imputed act? If the act is illegal, then the agent could have no lawful authority to do the act, and if he acts without the authority defined by the law, how else can his act be the act of the corporation save by an extraordinary imputation?

6. Such seems to have actually been the case in the early development of corporations in the form of church property held by archbishops, bishops, and deans of chapters. See Holdsworth "A History of English Law” 364. This person becomes a useless person as the claims and obligations of the members held in trust by him became well defined, and as the trustee drops out of the dry trust today, he drops out, but the persona ficta takes his place. See Salmond op. cit. (supra note 2) 367.

7. Salmond op. cit (supra note 2) 294. 8. Ib.

9. Some persons, when they refer to corporations, mean this ghost and insist that it is fictitious, while others mean by the word “corporation” the group as a group, and say that it is not fictitious but real. Still others mean by the word "corporation" the individual members of the group. Obviously, they are real enough. It is submitted that most of the contention as to whether a corporation is real or fictitious is due to a confusion of the term corporation.

Has our theory of corporations led us into a blind alley or is there a way out without breaking down the theory? We hope to show that there is a logical way out in examining the reasons generally given for holding corporations to a criminal responsibility. We must first examine the state of the law.


The subject of penal responsibility of corporations has had a recent but a rapid development. A little over a half-century ago corporate crimes were entirely foreign to our law,10 and such seems to be the state of affairs on the Continent today.11 It is now fully conceded that a corporation may be responsible for crimes and the only question of serious dispute is the limit of this liability. This

10. 1 Bl. Comm. (1765) Bk. 1, ch. 18, p. 476: "A corporation cannot commit treason, or felony or any other crime, in its corporate capacity though its members may in their distinct individual capacities.” Anon. (1701) 12 Mod. *559, per Holt, C. J.: "A corporation is not indictable, but the particular members of it are.” Orr v. Bank of U. S. (1822) 1 Ohio 36; McKim v. Odom (1828) 3 Bland. 407; Com. v. Swift Run Gap Turnpike Co. (1823) 2 Va. Cases 362; State v. Morris & E. R. Co. (1852) 23 N. J. L. 360, 364: “The liability of a corporation to indictment was not expressly ajudicated in Westminster Hall until

the case of Queen V. The Birmingham & Glouchester R. Co. (1842) 3 Q. B. 223,” Per Green, C. J., McDaniel v. Gates City Gas Light Co. (1887) 79 Ga. 58, 61: "We do not understand that in this state a corporation can be indicted for an offense.” This is not the law in Georgia today: Southern Ry. Co. v. State 125 Ga. 287. State v. Great Works Milling & Mfg. Co. (1841) 20 Me. 41: "A corporation is created by law for certain beneficial purposes; it can neither commit a crime nor a misdemeanor by any positive or affirmative act, nor incite others to do so as a corporation.

In our opinion the individuals concerned and not the corporation, must be held criminally answerable for what has been done”: per Weston, C. J. This is probably still the law in Maine. See the last adjudication, Androscoggin Water Co. v. Bethel Steam Mills Co. (1875) 64 Me. 441, 443. Pollock, “Jurisprudence” (3rd ed. 1911): "A corporation cannot commit crimes' for it cannot authorize them. If the members or representatives of a corporation affected to authorize a criminal act in its name, they would merely make themselves liable as individuals.” This is a strange statement in this day, from nearly the sole pillar of the Continental theory that a corporation has a distinct will, in Anglo-American law. See Pollock op. cit., supra, p. 123.


responsibility is not nearly as broad as one would conclude from a casual reading of the cases or treatises. It is now generally conceded that corporations are liable for all crimes that do not involve malice or intent,12 but it is to be noted that there are very few common law crimes of this nature. Most common law crimes do involve intent and an examination of the cases discloses the fact that, with a very few doubtful, scattered exceptions,13 all indictments of corporations at common law are merely for nuisances. It is further now generally conceded that a corporation may be made criminally liable for most crimes involving malice or intent by expressed imputation of the malice or intent of the agent to the corporation15 or by an absolute prohibition of the act regardless of intent.16 This is a substantial development, but it is to be noted that it is chiefly a statutory, rather than a common law, development. As to just how much farther the law has gone there is a great dispute. It is contended by some that the doctrine of the non-criminal responsibility of the corporation has, like many other artificial doctrines as to the liabilities of corporations, been thoroughly exploded and is

11. Ervin Hacker “The Penal Ability and Responsibility of Bodies Corporate” J. Crim. L. XIV 91.

12. See the excerpts from the cases given in Fletcher "Cyclopedia of Corporations” V p. 5373 n. 6.

13. See the cases cited in note 20, infra.

14. The cases, about ten in number, are collected in 14a C. J. p. 876, and the dicta are collected in Fletcher op. cit. (supra note 2) p. 5392.

15. New York Central & H. R. Co. v. U. S. (1909) 212 U. S. 481 ; “Thus clothed with authority, the agents were bound to respect the regulations of interstate commerce enacted by Congress, requiring the filing and publication of rates and punishing departures therefrom. Applying the principle governing civil liability, we go only a step farther in holding the act of the agent

may be controlled in the interest of public policy, by imputing his act to the employer and imposing penalties upon the corporation for which he is acting in the premises: per Day, J. Here the act expressly provided that the act of the agent "shall also be held to be the misdemeanor committed by such corporation.” This is more fully discussed by Canfield "Corporate Responsibility for Crime" Col. L. Rev. XIV 460, 480.

16. Pearks, Gunston & Tee, Ltd. v. Ward (1902) 2 Q. B. 1: “By the general principles of the criminal law, if a matter is made a criminal offense, it is essential that there be something in the nature of mens rea, and, therefore, in the ordinary case, a corporation cannot be guilty of a criminal offense, nor can a master be liable criminally for an offense committed by his seryant.

But there is an exception to this rule in the case of a quasi-criminal offense, that is to say, where certain acts are forbidden under the law by a penalty, possibly even under a personal penalty such as imprisonment, at any rate in defauit of payment of a fine; and the reason for this is that the legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he has any mens rea or not and whether or not he intended to commit a breach of the law

exactly the same principle applies to a corporation”: per Channall, J.

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out of date.17 Others have reached practically the same result by construing the words "person," "anyone," "whoever," etc., in statutes to include corporations in respect to crimes involving intent. 18 It is, indeed, often difficult to determine whether or not the court is holding that corporations are liable for such crimes generally, or whether, in the particular case, the legislature meant to so include corporations.19 The dispute is chiefly in the dicta, for there are not a great number of cases in point.20

The view seems to be quite general that a corporation cannot be guilty of crimes involving personal violence,21 though, on principle, it is hard to see why the line should be thus drawn.22 It has often been said that there are some crimes that a corporation which, "from its nature," it cannot commit.23 The examples under this ambiguous exception have been cut down from year to year until it is doubtful whether or not there are now any crimes that a corporation cannot commit under statutes properly framed.24 Finally it has been suggested that punishment is the only limit of criminal responsibility.25 Unless by this it is meant that the legislature could not have intended to include the corporation, since it could not be imprisoned or electrocuted, it is difficult to see how this is a real obstacle. The early common law judges did not wait for the legislature to prescribe a penalty. Furthermore, might it not be well to indict and convict a corporation even though it could not be punished

17. Here we have another ambiguity: What do the courts mean? Do they mean that the theory that a corporation under no circumstances can be guilty of a crime involving intent, or do they mean that the theory that a corporation cannot commit a crime apart from statute, is exploded? The following dictum seems to refer to the latter idea: “It seems to me as easy and logical to ascribe to a corporation an evil mind as to impute to it a sense of contractural obligation.

The same law that creates the corporation may create the crime, and to assert that the legislature cannot make a creature capable of violating the law, does not, in my opinion, be a discussion": per Hough, Dist. J., in U.S.v. M'Andrews & Forbes Co. (1906) 149 Fed. 823, 836; the dicta will be found collected in Fletcher op. cit. (supra note 12) p. 5369 et seq. In view of the fact that most of these dicta appear in cases where a statute is involved that might be construed to cover corporations one may readily conclude that the meaning is clear were it not for the usual conspicuous absence of squarely placing the decision on the statute. Day, J., in New York Cent. & H. Ř. Co. v. U. S. (1909) 212 U. S. 481, leaves no doubt on this point. See note 15 supra. It is also made clear by De Haven, Dist. J., in U. S. v. John Kelso Co. (1898) 86 Fed. 304, in an indictment under an act prohibiting “a contractor or subcontractor” on any public works of the United States to "intentionally work its laborers more than eight hours per day": "A corporation may be a contractor or subcontractor in carrying on the public works of the United States and as such it has the power and the capacity to violate the provision of the law. Corporations are, therefore, within the letter

of the statute." But who can tell what Learnd Hand, J., had in mind when he said, in an indictment of a corporation under Espionage Act of June 15, 1917, making it a crime "for any person” to make false statements "intending” to cause insubordination on the party of the military forces: "The question (capacity of a corporation to commit this crime) simply turns upon how far the law has gone in imputing to a corporation the acts of its agents."

18. State v. Ice & Fuel Co. (N. C.) 81 S. E. 737; State v. Rowland Lumber Co. 153 N. C. 610: U. S. v. Nearing et al. (1918) 252 Fed. 223, 231.

19. U. S. v. Union Supplv Co. 215 U. S. 50; State v. Relle Springs Creamery Co. (1910) 83 Kas. 389; State v. Security Bank of Clark (1892) 2 S. D. 538; U. S. v. Nearing et al (1918) 252 Fed. 223, 231.

20. It is doubtful if there are any clear-cut cases in point. In addition to the cases cited in footnote 18 see: State v. Atchinson (1879) 3 Lea 729 (libel). Canfield op. cit. (note 15 supra) p. 469, 474, puts this case on the ground that it was an absolute prohibition by statute. There is no reference made to the statute in the opinion. Our question is not at all considered : People v. Tvson & Co. (Jan. 13, 1914) 50 N. Y. L. J. (larceny); People v. Hudson Valley Const. Co. (1915) 151 N. Y. S. 314 (larceny). These two New York cases might be placed on section 1932 of the Penal law of New York which provides : "In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars.” But see Canfield op. cit. (note 15 supra) p. 480.

a on the conviction? It would afford the attorney general ground for quo warranto proceedings and in addition the corporation would incur that punishment that public opinion superadds to the legal penalty. As to those crimes, such as nuisances, for example, which do not involve the element of intent or malice, we have no quarrel. They are not crimes in the ordinary sense of the word, but rather acts more in the nature of public torts.2 The essence of the injury is not the bad example to the public or the threat to the safety of society as much as an injury to a substantial number of the public

21. See cases collected in Fletcher op. cit. (note 12) p. 5391 n. 63.

22. This rule has been doubted in State v. Baltimore & Ohio R. Co. (1879) 15 W. Va. 362. This doubt also finds support in State v. Rowland Lumber Co. (1910) 153 N. C. 610. This case is erroneously cited in Corpus Juris as holding that a corporation is indictable for criminal assault and battery. 14A C. J. 875 n. 76. There seem to be no cases so holding and the rule in the text is unsupported. See also Salmond op. cit. (supra note 7) 339 and 4 B1. Comm. 192. The homicide cases are collected in two notes in 21 L. R. A. (N. S.) 998 and in 43 L. R. A. (N. s.) 344.

23. One can scarcely find a case where a corporation is indicted for a crime where this ambiguous exception is not reserved from the earliest to the very latest cases It was the “nature" of the corporation that made courts doubt any criminal responsibility from the beginning.

24. Couple with the New York statute (quoted in note 20 supra) sec. 29 of the Penal Code of New York, “A person concerned in the commission of a crime whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent; and a person who directly or indirectly counsels, commands, induces or procures another to commit the crime, is a principal," and if we indeed, do not have this result, we could get it by a careful rewording of these statutes.

25. “There is the obvious physical difficulty of rendering a corporation amenable to corporal punishment .": per Hough, Dist. J., in U. S. v. MacAndrews & Forbes Co. (supra note 17) at p. 836; Little Punishment of a Corporation” Ill. L. Rev. III 446.

26. Beale "Cases on Criminal Law(3rd ed.) p. 81.

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