At common law, an alien cannot take property by operation of law, that is, by descent.*** In the United States, by statutes varying in liberality in the different states, the common-law disabilities of aliens, as to property rights, have been greatly modified. In most states, resident alien friends are placed on the same footing as natural-born citizens; in other states, the same liberal policy is pursued toward non-resident alien friends; while in others, these privileges are accorded with restrictions, and in some cases denied altogether. In some states, the statutes confer property rights on those aliens only who have declared their intention to become citizens, or who have resided for a certain time in the state." DISABILITIES OF ALIEN ENEMIES 51. A man is said to be an alien enemy when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. It is a well-settled doctrine of the law that there cannot exist at the same time a war for arms and a peace for commerce,' 145 and it has been laid down as a necessary consequence that, without express permission of the state, all contracts with the enemy made during war are utterly void. 146 The law of the nations, as judicially declared, prohibits all intercourse between citizens of two belligerents which is inconsistent with the state of war between their countries, and "this includes any act of voluntary submission to the enemy, or receiving his protection, as well as any act or contract which tends to increase his resources, and every kind of trading, or commercial dealing or intercourse, whether by transmission of money or goods, or orders for the delivery 143 Am. & Eng. Encyc. Law (2d Ed.). Vol. 2, pp. 72, 73. 144 Am. & Eng. Encyc. Law (2d Ed.). Vol, 2, p. 76, citing 24 U. S. Stat at L. 476; Ala. Code (1886), p. 1,914; Civ. Code of Cal., Secs. 671, 672, Ark. Dig. of Stat. (1894), Secs. 246, 248. 145 Kent's Comm., p. 66. 146 Bish. Cont., Sec. 1,000; 1 Kent's Comm., p. 67; 100 Mass. 561 (1868). of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission, or by insurances upon trade with or by the enemy.' 99147 INDIANS 149 148 150 52. The legal status of the Indian tribes residing within the territory of the United States is peculiar. An Indian tribe or nation is not a foreign state; it is perhaps more correctly denominated a "domestic dependent nation." Their relation to the United States resembles that of a ward to his guardian; they are indeed termed the wards of the nation." It is provided by the constitution that congress shall have power to regulate commerce with the Indian tribes,' and under this clause congress has absolute and exclusive control over all traffic and commercial intercourse with the Indians.' By the revised statutes of the United States, it is further provided that no agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him or any other person in consideration of services for said Indians, relative to their lands, or to any claims growing out of, or in reference to, annuities, instalments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed in writing before a judge of a court of record and a duplicate delivered to each party, and bear the approval of the secretary of the interior and the commissioner of Indian affairs indorsed upon it."1 151 Aside from statutory prohibitions there is nothing to prevent an Indian from binding himself according to the 147 100 Mass. 561 (1868). 1485 Pet. (U. S ), 17 (1831). 149 Const. U. S., Art. I. Sec. 8. 1503 Wall. (U. S.) 407 (1865). 151 Act of March 3. 1871, Vol. 16, c. 120. Sec. 3, p. 570, U. S. R. S., Sec. 2,103. ordinary law of contracts; unless it appear that such con tract falls within the provisions of the above recited statute or some other statute rendering it illegal, it must be held valid and binding." But parties dealing with Indians must at their peril take notice of public treaties and acts of congress. CONVICTS 155 154 53. At common law, convicted felons and outlaws could not sue, but remained liable to be sued, on a contract made by them during outlawry or conviction. Upon conviction of felony, all the goods and chattels, including debts and choses in action, of the felon were forfeited to the crown." 156 In England, by statute abolishing forfeiture for treason or felony, a convict is defined to be any person against whom judgment of death or of penal servitude shall have been pronounced upon any charge of treason or felony;" and it provided that no action at law or suit in equity for the recovery of any property, debt, or damage, shall be brought by any convict, and that every convict shall be incapable of alienating or charging any property, or of making any contract.' 159 158 The incident of civil death attended every attainer of treason or felony whereby the attainted person is disabled to bring any action, for he is accounted in law as civilly dead; he was disabled from being a witness and could perform no legal function. While, however, a convicted felon could make no contract which he could enforce, it is not implied that he is incapable of contracting with those whose conscience binds them to fulfil their engagements. So, a person attainted could take lands by devise and purchase. He could be a grantor or a grantee after attainder and the grant would be good as against all persons except the king." 162 161 54. The doctrine of civil death is seldom applied in the United States. In some states, it is judicially declared that a convict is neither civilly dead, nor deprived of his right of property, and may enforce such right by suit when it is necessary to do so.' Under the codes of some other states, convicts sentenced to life imprisonment are deemed civilly dead, but in the case of convicts sentenced for a term of years, his civil rights are only suspended during the term of his imprisonment.""" CORPORATIONS 55. The powers of corporations to contract are considered in greater detail in another part of this Course. Only a brief statement of the governing principles is here given.1 POWER TO CONTRACT 56. A corporation, being the mere creature of law, possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.1 Except where otherwise provided in their charters, corporations stand under the same restraints as individuals, in the use of their property, the exercise of their powers, and the transaction of their business to the end of avoiding injury to others.168 Therefore, in regard to contracts, corporations possess (1) such power to contract as is expressly conferred by the charters; (2) by implication of law, without any affirmative. expression to that effect in their charters or governing statutes, and in the absence of express prohibitions, they have the same power to make and take contracts, within the scope of the purposes of their creation that natural persons 1616 Johns. Ch. (N. Y.) 118 (1822); 53 Vt. 315 (1881). 162 18 R. I. 590 (1894); 1 Houst. (Del.) 143 (1855); 83 Ga. 549 (1889); 23 Fla. 478 (1887); 17 Ohio 260 (1848). 164 See The Law of Commercial Paper; 163 97 Mo. 322 (1889); 35 Cal. 396 (1868); 110 N. Y. 317 (1888). have; (3) their power is restricted to the purposes for which the corporation has been created, and cannot be lawfully exercised by it for any other purpose.' 167 The charter of a corporation, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. All contracts made by a corporation beyond the scope of those powers (called ultra vires) are unlawful and void, and no action can be maintained upon them in the courts. This statement is based upon these reasons: (1) The obligation of every one contracting with a corporation to take notice of the legal limits of its powers; (2) the interest of the stockholders not to be subjected to risks that they have never undertaken; (3) and, above all, the interest of the public that the corporation shall not transcend the powers conferred upon it by law.1** 168 EXECUTION OF CORPORATE CONTRACTS 169 170 57. The ancient rule of common law was that a corporation could act only by deed, or power in writing, under its corporate seal. But the rule, opposed as it was to the demands of practical business, necessarily suffered important modifications at an early day in England.' The exceptions were at first limited to small matters of daily occurrence, such as the appointment of servants, the principle of these exceptions being "convenience amounting almost to necessity."""" This principle has been extended by modern decisions so as to cover practically all contracts which can fairly be treated as necessary for the purposes for which the corporation exists, and, in the case of trading corporations, all contracts made in the ordinary` course of business." 172 58. In the United States, the ancient doctrine has not been recognized. In the leading case, the rule of law was 167 Thomp. Corp., Sec. 5,645. 168 139 U. S. 24 (1890). 1691 Black. Comm. 475. 171 Poll. Cont. (6th Ed.), p. 148; L. R. 1Q. B. (Eng.) 620 (1866). 172 L. R. 3 C. P. (Eng.) 463 (1868). 170 43 N. J. Law 325 (1881); 6 Ad. & El. (Eng.) 846 (1838). |