200
The Green Bag
Corporations. “Corporate Personality." By Arthur W. Machen, Jr. 24 Harvard Law Review 253 (Feb.). “in these days, it has become rather fashion able to inveigh against the doctrine that a corporation is an entity. as a mere technicality and a relic of the Middle A
- but nothing
could be further from the trut . A corporation is an entity-not imaginary or fictitious, but real, not artificial but natural. Its existence is as real as that of an arm or of the Church. This is the element of truth in the reality theory of corporate personality which, originating in Germany, has commanded wide acceptance rllotl only in that country but also in France and
ta y. . . . “If by ‘person’ the law means, not a rational, living creature similar to a man but a mere ‘subject of rights,’ —and this is the teachin of the more moderate members of Gierke's schoo — then, in the name of clearness let us ado t some
less ambiguous designation for this ‘su ject of rights.’ But if we do not lose ourselves in meta physical discussions of the nature of juristic personality but take common sense as our guide, we shall ap rehend clearly that when a jurist first said, ‘
corporation is a person,’ he was
using a metaphor to express the truth that a corporation bears some analogy or resemblance to a person, and is to be treated in law in certain respects as if it were a person, or a rational
being capable of feeling and volition. . . . The proposition ‘A corporation is a person’ is either a mere metaphor or is a fiction of law. This is the element of truth in the ‘fiction theory' of the corporate entity which both in England and on the Continent may be regarded as the orthodox doctrine. “But although corporate personality is a fic tion, the entity which is personified is no fiction. The union of the members is no fiction. The acting as if they were one rson is no mere metaphor. In a word, a though corporate personality is a fiction, yet it is a fiction founded u n fact. It is as natural to personify a body 0 men united in a form like that of the ordinary company as it is to personify a ship. To argue that because the personality of a corporation is a product of the ima ‘nation, therefore the
“The banks are the present, living witnesses that the National Government, representing all the people of the country, is in every matter of general concern the best repository of all artificial powers, and the surest conservator of all natural ri hts, and we cannot fear that
the same control will fall as a blight upon the factory, which has come as a blessing to the bank. ' See Federal Incorporation, Monopolies, Rail
ways. Criminsl Procedure. "The Seventeenth Century Indictment in the Light of Modern Conditions." By Charles A. Willard. 24 Harvard Law Review 290 (Feb.). "No reform of the criminal procedure will be complete without radical changes in the law relating to indictments. Changes should not be made which would pre'udice the essential rights of the accused. But ' these are preserved the reform can 0 to any extent that may be thought advisabf . st. "It of course shocks the American or English lawyer to suggest that a man can be brought to trial upon an indictment or complaint which states the commission of no offense. But why should he not be? There are countries whose laws do not make the requirements which ours do. Judicial systems that have been adopted by highly civilized nations cannot be said to be wholly wrong, even if they do consider the rights of their subjects fully protected although the notice given to them of a criminal cha e does not specify minutely and in great detai every possible in redient of the offense. . . . "The Fi th Amendment to the federal Con stitution provides . . . that no one shall be held to answer for a felony except on an indictment by a grand jury. The word ‘indictment’ must be construed to have the meaning given to it at the time the amendment was adopted. It there meant an instrument which set forth all of the in edients of the offense. It seems therefore t at no change of the kind here sought could be introduced in the federal courts in cases of capital or otherwise infamous crimes, except b an amendment to the Constitution. In cases
corporation itself, as anyt ing different from the
of, misdemeanors, however, it can be done by
separate members, is a fiction, would be as reason
an act of Congress alone."
able as to argue that because a ship is not really a female, and is personified only by way of metaphor, therefore it has no real existence except as a number of boards and nails." “National Control of Corporations." By Hon. Frederick W. Lehmann. 11 Phi Delta Phi Brief 1 (Mar.). "It may not be convenient in industrial operations to eliminate bonds and preferred stock, but there can be no reason why the stock which represents no investment, which does not
“The English Court of Criminal Appeal." By John D. Lawson and Edwin R. Keedy. 5 Illinois Law Review 389 (Feb.). This is an extract from a special committee report printed in the Journal of the American Institute of Criminal Law and Criminology. The writers visited En land to obtain information about the workings o criminal procedure. The history of the court, its powers, practice with regard to appeals, rules of court and judicial comments on the court all receive attention.
speak the truth, should not be eliminated, for
falsehood, whatever shape it may take, can be productive of no good. No real investor, no real manager of the industry, no workman of high or humble function can be benefited by fictitious capital that is, and can be, only a burden upon the enterprise. . . .
“Criminal Law as Administered in Hamilton County." By William Howard Taft. Inde pendent, v. 70, p. 230 (Feb. 2).
President Taft wrote this paper for the Literary Club of Cincinnati in 1884. in it he attempted
