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authorities. What is important, therefore, is not to determine what jurisdiction the courts have been given, but what jurisdiction they can be given under accepted principles of Conflict of Laws and subject to the limitations of the Constitution. The discussion, however, of any moot question of jurisdiction must of necessity be prefaced by a restatement of certain fundamental principles axiomatic in Conflict of Laws which will be controlling of any conclusions proposed.
Jurisdiction, in the international sense, rests on the power of a sovereign to command and control persons and things. It does not arise from the consent of the governed; consent is only required for jurisdiction when the person consenting is not one of the governed. A sovereign is universally recognized to have the power to command a subject wherever he is; hence we have jurisdiction by allegiance. A sovereign is recognized by Common Law countries to have the power to command, despite his temporary absence, one who has established a domicile within its borders, giving it jurisdiction by domicile. The best-recognized and oldest form of jurisdiction is that obtained by the presence of the individual. This is the only form of jurisdiction exercised over property.
The sovereign has jurisdiction of the persons and property within its territory altogether irrespective of the consent of those persons, or the owners of the property. They may be rebels denying the authority of the government or even anarchists. But so long as a government is recognized to be de jure by other nations, their governments acknowledge its right to exercise sovereignty over all persons and things rightfully within its borders, and recognize abroad the legality of this exercise. We say rightfully, because it is evident that any extension of jurisdiction by a method not recognized internationally as proper, could not be countenanced by other nations. It is particularly desirable to keep in mind that consent has nothing to do with the application of the laws of a sovereign to one who enters its territory. No government makes it a condition of admission into its territory that each person entering agree in fact to be governed by its laws. Certainly very few travelers are conscious parties to any such social contract. Indeed, every government is aware that a great many cross its borders with the
1 E. g., bringing persons or property within the existing boundaries of a sovereign by kidnapping, robbery, etc.
intention of being governed as little by its laws as they can manage. Yet entrance with such an intention alone has never been made a crime. As a matter of fact, their entrance into a territory cannot be said to constitute consent to be governed by the laws of that territory or even evidence it, because consent is neither asked nor necessary to the application of those laws.
The courts are generally entrusted with all the judicial jurisdiction actually exercised by their sovereign, only to be assumed, however, when invoked by suitors in the ways provided by the procedural law. This jurisdiction is over persons and things. When the former, it is said to be in personam; when the latter, in rem. When jurisdiction is exercised over property to give damages to the plaintiff without jurisdiction of the person of the defendant, it is said to be quasi-in rem. As the principles upon which jurisdiction in rem and quasi-in rem depend are simple and well settled, our attention may be confined to jurisdiction in personam.
In order to impose a personal obligation by means of a judicial proceeding, the court must get jurisdiction in one of four ways: (1) by presence, (2) by domicile, (3) by allegiance, (4) by consent. It is conceived that a court may obtain jurisdiction of a foreign corporation in two of these ways: by its consent or by its presence. The foreign corporation, assuming it to be a single group chartered by a single foreign state, is domiciled in and owes allegiance only to that state.
A brief survey of the history and legal theories of group personality affords the best avenue of approach to our subject. The mature development of the law of corporate association then suggests the advantage of treating next jurisdiction over foreign corporations. As space does not permit a discussion of the extent of state control of foreign corporations engaged in interstate commerce, the only constitutional questions raised in this division of the article will be those depending on principles of Conflict of Laws. The last division of the article covering jurisdiction of foreign unincorporated groups and individuals involves a study of the comity clause of the Constitution. It may be profitably subdivided into (a) scope of the comity clause, (6) jurisdiction over foreign unincorporated groups, and (c) jurisdiction over non-resident individuals.
In the early law, the group of kindred living together constituted the legal unit. It was responsible for the delicts of its members, and all obligations were owed to it. It came to be represented by paterfamilias, who alone had legal personality, that is, was the subject of rights and duties. He owned the property of the group, he was liable for the delicts of its members, and he was entitled to their acquisitions. But as Sir Henry Maine pointed out, the progress of law has, until recently, been from status to contract, that is, from the legal recognition of but a single member of the group, with the rest in potestas, to the recognition of each member as the subject of rights and duties equal with the first save in so far as natural incapacity prevents. Hence today we say that the individual is the natural legal unit.
But dealing with man as an individual does not exhaust his jural significance. His activities and interests are not merely individual; they are also collective. His home life is bound up with the family; his economic life is bound up with his business associates. He seeks to secure his religious interests in the church, and his more important communal interests in the state and its various subdivisions. Passing from the individual to the group, we find its members working as a unit to secure group ends. Ordinarily, while engaged in group pursuits, a man's individual ends are for the moment submerged — his activity is merely a phase of the group activity directed towards effecting the group purpose. An excellent example of this is an army in action. The individual's interest in protecting himself on the one hand, and in self-glorification on the other, is absolutely subordinated to the group purpose, the destruction of the enemy. Further, there is a group consciousness and a group will with which the individual consciousness and individual will are assimilated. It is elementary that men act in groups in a way that would be incomprehensible in most of the members of the group taken individually. Mob psychology attempts to deal with some of these phenomena. Corporation and national morality are notoriously lower than individual morality.
The group directs its activities in ways precisely analogous to those adopted by the individual. It contracts as an entity, it com
2 MAINE, ANCIENT LAW, Ch. V -- Patri Potestas.
mits delicts, it holds group possessions, and acts generally as a unit. Indeed the superiority of group over individual action is due to the fact that the group can apply the method of the individual with many times his force. Hence it would appear that the group is as capable of supporting legal personality as the individual, while the protection of group interests seems to require group rights to nearly the same degree that individual interests require individual rights. But what is more important, the protection of society makes it imperative that the group be subject, as such, to duties, and duties distinct from those imposed on its component members, because the group is often infinitely more formidable than the sum of its members.
The law has recognized this social aspect of man's life and his group interests in various ways. Family interests are protected through the laws relating to the disposal of the property of husband and wife, through community property laws, family exemption laws, through death statutes, and through the actions allowed for alienation of affections and seduction. Because, however, of the small size of the group it has been possible adequately to secure these interests by conferring individual rights upon the members of the family against one another and against the whole world, and imposing the correlative obligations. Thus the law, while not dealing with the family group directly, makes the relations of its members to the group itself and to the outside world, the bases of the rights which afford it legal protection. This has similarly been true of man in his economic relations. Where his common interests have been those of a small group or partnership, they have been treated not unlike the interests of the family. While the law recognizes the community of interest and of activity, nevertheless it has, until recently, secured them entirely through the individual. But it should be remembered that this method is not a necessary one, and that it persists only because of legal convenience and legislative inertia. The partnership has always been treated as a unit in the mercantile world. As conditions require, it is daily coming to be treated more like a unit in the legal world.3
For a long time the only groups with which the state directly concerned itself were those which exercised such a degree of social con
• Uniform Partnership Act; Bankruptcy Act; Statutes making large partnerships suable in firm name to be discussed infra.
trol as to be the state's competitors. Such groups were so large that it was obviously impracticable to deal with them through their individual members. That was too cumbersome a way to secure the interests of the group, and an almost impossible way of securing the interests of society in the control and regulation of the group. When the mediæval courts declared it a usurpation against the king to set up a corporation without his charter, they had no reference to our ordinary trading corporations, and were not thinking of the privilege of limited liability. What the courts were striking at was the founding of municipal corporations and guilds, which, if not well under the royal control, might threaten the very monarchy itself. The royal apprehension will be readily understood if one but recalls the power of the City of London in the great feudal wars, and the exploits of the butchers' guilds of Paris when they made the rulers of France, and held the mighty Burgundy at their beck and call. The guilds and municipal corporations exercised a control over their journeymen and burghers, respectively, covering the most important phases of their economic and communal life, and existed for the sole purpose of furthering their interests. In turbulent days, such organizations could only be tolerated as the vassals of the king, exercising their governmental authority by virtue of his charter. This is the secret of the kings' jealousy, and control of the corporate franchise, since nearly all early corporations which were not religious were governmental. In the later Tudor periods, when the government had become more firmly settled, the great trading corporations became more common. But these were also governmental in their nature, and in time acquired and governed great territories for the Crown of England under its charters. Gradually, however, the governmental feature became less significant, and corporations became popular because of their facilities for obtaining capital from the investing public and the limited liability involved. The state, nevertheless, retained control of the corporate franchise, not now as a measure to insure its own safety, but in order to protect the public from the ruinous stock speculations which finally led to the Bubble Act. In this way we have our modern corporation coexisting with the trading copartnership, and differing from it as a practical matter only in the possession of certain legal privileges.
• British East India, London, and Plymouth Companies.