upon it by the House of Lords) dealing exclusively with mines outside the special area, and allowing them to be worked 'so that no damage or obstruction be done or thereby occur to or in such railway or other works,' and has therefore no application to a case like the present. In Midland R. Co. v. Checkley (L. R. 4 Eq. p. 19), which turned on a private Act reserving mines to their owners and giving them a general power to work them, not thereby injuring the navigation or the works, and creating a special area of 10 yards, a contrary conclusion was come to by Lord Romilly M. R.; and this agrees with Dudley Canal Co. v. Grazebrook, ub. sup. This is a considerably stronger case than the Manchester Corporation's case, where there is no express limitation at all on working mines outside the special area. But the reasoning of Lord Romilly is, it is submitted, correct, and supports the view adopted by Farwell J. ·

CHARLES TENNYSON.

NOTE. Since writing the above, the third edition (just issued) of Mr. MacSwinney's book on Mines has come to my notice. I see that the learned author is inclined to reconsider his opinion with regard to mines outside the area (see pp. 358 to 360 of the 3rd ed.), and that on pages 375 and 376 he makes some general observations on the Court of Appeal's decision in the case above discussed which appear to support the view I have taken. I also observe that a learned correspondent, in a note in the April number of this REVIEW, has suggested the same construction of s. 23 of the Act as that I have ventured to put forward.

THE STATUS OF FOREIGN CORPORATIONS AND THE LEGISLATURE. II.

The Liberal System.

HE foundation of this system is the assimilation of juridical persons to natural persons. There is a fallacy in differentiating the former from the latter on the ground that, while the latter is a natural creature, the former is the artificial creation of some sovereign power. Law is concerned only with the legal aspect of personality, the capacity to be a subject of rights. Personality in this sense must always be created by the law, and can never be a natural creation. Nature produces a body, but the law clothes it with rights. So even in the case of natural persons the law can refuse to confer legal personality, or take it away again after it has conferred it. The natural body of one born in slavery may never become a legal person. It may remain a chattel, an object, not a subject, of rights. By the civil law a legal person might formerly in consequence of crime or encloistration become civiliter mortuus, and be deprived of personality. The truth is that legal personality is conceded by the law to natural persons as well as to juridical persons. In both cases the law gives it, and the law can take it away; and if for this reason the personality of a juridical person is to be called artificial, so must that of every

man.

It may be objected that the true difference between the two sorts of person is to be found in the nature of the substratum upon which the law confers personality: that in a natural person it is flesh and blood; that in a juridical person it is not; and that this is the specific difference which reduces the personality of a juridical person to mere fiction, and prevents it from enjoying natural rights. But here again further analysis shows that there is no true distinction between the two sorts of person. In the juridical person also there is a substratum of flesh and blood; it is that of the natural persons who are its members. The causes of the personification are the necessities and interests of natural persons. Behind the artificial person there stands a group which desire to effect some object common to its members, and which the law clothes with special powers for that purpose. Without the law to confer

the powers, the group could not exercise them: but without the group to receive the powers, the law could not confer them. The substratum of natural personality may be difficult to find. In the case of a fondation or Stiftung, we' may have to seek it afar off, in the greatest of all groups, the state. But finally, as it has been well said, 'Les personnes morales ne sont pas autre chose que des modalités de la vie juridique des personnes naturelles.' There is nothing in the essence of their nature, neither in the nature of the subjects of rights in question nor of the manner in which they become subjects, to exclude them from the rights universally accorded to natural persons in private international law.

Such views as these, although they do not use the language, approximate closely to the ideas of those who maintain the metaphysical theory that juridical persons have personalities just as real as those of natural persons. According to some, we know, the juridical person is 'no fiction, no symbol, no piece of the state's machinery, but a living organism, a real person, with a body and members and a will of its own 2. We are told by a great jurist and historian that the commentators of the Roman law, in inventing the fiction theory, have invented an ingenious falsehood; and that the truth as to juridical personality is to be found in the old doctrine of German customary law, that human associations are actually existing entities, and are therefore, for legal purposes, real persons; a doctrine maintained nowadays not only by Germanists, but by Romanists, Canonists, Publicists, and Jurists' as well 3. The growth of ideas of this nature has undoubtedly greatly influenced and promoted the development of the liberal system. If we are to regard a juridical person as simple reality, and not pure fiction, we shall find no difficulty in drawing the conclusion that a reality in one state is a reality in every state. But we will not venture to enter here into any general discussion as to the nature of juridical personality. Whatever may be the extent of its reality, it is still true that in so far as it is fictitious because it is received from the law, so is natural personality; that in being none other than a phase in the juridical life of natural persons, it has at least an element of reality very material in the present connexion; and that there is in consequence in private international law, at least, no essential difference between it and a natural person. It follows that all the conclusions in favour of restriction based upon that difference fall to the ground. Since a juridical person shares the natural existence of natural persons, it

1 Lainé, Les Personnes Morales en D. I. P., Journ. D. I. P. 1893, p. 273.

2 Maitland, Introduction to Gierke's Political Theories of the Middle Ages, p. xxvi. Gierke, Deutsches Privatrecht, p. 466.

3

must share their natural rights also. No recognition of any sort is necessary to confer upon it personal status: it shares the unquestioned and universal recognition which all civilized states accord to the personality of natural persons. Its status does not indeed depend on the same circumstances, age, sex, &c., as that of natural persons. But it depends on analogous circumstances in the life of the juridical person, its type, its position in respect of public powers, the purpose for which it was formed, and the manner in which it must act to attain its purpose'. With a personal status the foreign juridical person obtains also the benefit of a personal law, by which its capacities are regulated. The rules of the territorial law of personal capacity do not apply to it, but it carries with it, wherever it goes, capacities regulated by the rules of law of its state of origin 2.

The admission of a foreign juridical person to personal status and the possession of a natural law is subject to certain limitations. It is clear that the reasons given for its admission apply only to its civil capacity, not to its functional capacity. The distinction, no doubt, is not usually enforced in the case of natural persons. Foreigners are in general allowed to carry on business, to advance learning, or to perform any other function, without obtaining express leave to do so. But that is because there is only one legal type of natural person. All states are acquainted with it, and can anticipate what sort of function it will seek to perform. With a juridical person it is otherwise; there are here many types, the nature and purpose of any one of which may be well known in one state, but quite unknown in another. A state can have no certain knowledge what sort of function foreign juridical persons may seek to perform, and must therefore hesitate to allow them functional capacity until it is convinced that the functions to be performed by them will not be hostile to its policy 3. Although admitted, therefore, to civil capacity de plano, the foreign juridical person must obtain some leave or recognition in order to exercise functional capacity. To this general rule an exception should be made in favour of commercial associations. To these bodies the reasons which exclude juridical persons in general from exercise of functional capacity without leave do not apply. The pursuit of commerce is a function which is beneficial to all states, and contrary to the policy of none. In commercial associations, moreover, where the object of association is private gain and not the public

1 Sacopoulo, Des Personnes Morales en D. I. P., p. 123.

2 Mamelok, loc. cit., p. 55; Despagnet, Précis de D. I. P., pp. 61-72; Diena, Trattato di Diritto Commerciale Internazionale, i. 244.

3 Moreau, loc. cit., p. 342.

welfare, the substratum of natural persons is more apparent than in any other class of juridical person. There should therefore be extended to them the same tacit admission to exercise functional capacity which is extended to natural persons.

But whether admitted to functional capacity or not, as regards civil capacity the foreign juridical person should stand in the same position as an individual foreigner. Respecting its personal law in the matter of capacity, the territorial law should enforce upon it those only of its own provisions which it enforces on foreigners in general. Amongst these, the principal are those relating to police and all matters of public order, the local revenue laws, and the rules of procedure of the local courts.

Such is the position which the foreign juridical person should occupy in the absence of any express legislation affecting it. But certainly no theoretical reason can be given against the possession by every state of power to modify it in any way it pleases1, just as it might modify the position of foreign natural persons by legislating against some particular class, such as anarchists, or Jews. Apart from the sanctions of public international law, the only restriction imposed upon a state is, that if in its legislation it disregards the fact that a foreign juridical person has a natural personal status, and a personal law, if it seeks unduly to exclude it from civil capacity or to modify the capacities given it by its domestic law, it will be legislating against the nature of things. The relations of the members to the body and to each other, the manner in which the body should will and act, all questions of internal management and of the general extent of capacity, these are matters for the personal law, with which the territorial law should not meddle. Its legitimate sphere of action is to regulate those relations of the foreign juridical person which concern third parties, the citizens whose interests it is its business to guard. Particular interferences with internal administration, particular restrictions of capacity by the legislature are legitimate if they are necessary in the interests of citizens of the state. Indeed, it may be argued that the necessity for this is so clear that the rules of territorial law relating to relations between domestic juridical persons and third parties must in all cases be considered as applying to foreign juridical persons without express enactment, at least when the latter have a 'residence' within the territory: so that their personal law must in all cases be a composite of the rules of law of their domestic state, qualified by those rules of territorial law affecting relations between juridical persons and third parties 2.

1 Von Bar, Theorie und Praxis des Internationalen Privatrechts, 2nd edit., s. 107. 2 Diena, loc. cit., p. 331.