If this view is correct, it naturally follows that a corporation of another state can demand, as of right, recognition not only in the federal courts, but in the courts of every state in the Union, on a basis of substantial equality with individual citizens. There have been strong intimations that the Supreme Court is prepared so to hold. In International Text Book Company v. Pigg,1 involving the right of a state to prevent a foreign corporation engaged in interstate commerce from suing in its courts until it had complied with certain conditions, the court quoted the extract in the foregoing paragraph, and continued: "How far a corporation of one state is entitled to claim in another state, where it is doing business, equality of treatment with individual citizens in respect of the right to sue and defend in the courts, is a question which the exigencies of this case do not require to be definitely decided." It is not seldom that state courts are more forward in safeguarding national interests than the United States Supreme Court; yet in this instance a state court of last resort has in a series of cases held that under the privileges and immunities clause of the Constitution, a law denying access to the courts to foreign corporations was void. The result seems to have been reached, it is true,

realizing rights. To deny it would be to deny, for instance, that a German manufacturing company can sue in an English court for the price of goods sold and delivered in Germany to a domiciled German who had subsequently migrated to England. Without it a foreign juristic person would have no means of protecting itself: and its admission to personal status and to the exercise of capacities in virtue of such status would be illusory. Capacity to sue stands therefore on a footing different from that of other capacities." Lindley, Company Law, 6th ed., 1221: "It is an established rule of private international law that a corporation duly created according to the laws of one state may sue and be sued in its corporate name in the courts of other states."

1 217 U. S. 91 (1910). See also Buck Stove Company v. Vickers, 226 U. S. 205 (1912).

2 Missouri: International Textbook Company v. Gillespie, 229 Mo. 397 (1910); State ex rel. v. Grimm, 239 Mo. 135 (1912); British-American Cement Company v. Citizens' Gas Company, 255 Mo. 1, 164 S. W. 468 (1914); Mining and Milling Company ". Fire Insurance Company, 267 Mo. 524 (1916). In the first of these

without any suspicion on the part of the court that such cases as Paul v. Virginia existed; yet at the least the cases show what, in the opinion of this court, the rule should have been in the absence of authority.

The other analogy which points persuasively toward the abandonment of the doctrine that a corporation is not entitled to the protection of the privileges and immunities clause, is to be found in recent decisions under the Fourth Amendment in the bill of rights of the federal Constitution. The amendment declares that " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Despite the strong flavor of genus homo which pervades the Article, the Supreme Court has held it applicable to a corcases the court held, citing the Pigg case, "That where a foreign corporation has a valid cause against a citizen of this state it may sue said citizen thereon in the courts of this state, provided a citizen of this state might do the same, notwithstanding the provisions of said § 1026 to the contrary." (Page 423.) In the second, the court confuses in a curious manner the privileges and immunities clause in Art. IV, § 2, and the clause relating to privileges and immunities of citizens of the United States, in the Fourteenth Amendment. After quoting the Fourteenth Amendment, the court says:

"The last section also provides that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, which of course includes all of the citizens of all of the states, and the Supreme Court of the United States has repeatedly held that the latter clause includes corporations, whenever engaged in interstate commerce, or whenever legally authorized to do business in any such state or states. That court has also repeatedly held, under the constitutional provisions before mentioned, that any citizen of the United States or of any state thereof, may sue in the courts of any other state, wherever a citizen of such state may do so under the laws thereof." The only authority cited is the Pigg case. Both statements are clearly erroneous. The Supreme Court has never held that a corporation is a citizen under the clause in the Fourteenth Amendment; and it has never held that the right to sue is a privilege or immunity of a citizen of the United States.

In British-American Cement Company v. Citizens' Gas Company, on the other hand, Art. IV, § 2, of the federal constitution was invoked.

poration. A subpoena duces tecum of an unnecessarily sweeping character had been served upon the corporation by the Interstate Commerce Commission, and it was resisted, both under the Fourth Amendment, and under the Fifth, which provides among other things that "no person "shall

be compelled in a criminal case to be a witness against himself. The privilege against incrimination, the court held, was not applicable to a corporation, despite the presumption that person" includes juristic entities. But the defense under the Fourth Amendment was sustained.1 The court said:

Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity, under the Fourth Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body, it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law, and is protected, under the Fourteenth Amendment, against unlawful discrimination. Gulf, etc., Railroad Company ». Ellis, 165 U. S. 150, 154 and cases cited. Corporations are a necessary feature of modern business activity, and their aggregated capital has become the source of nearly all great enterprises.

This case, it is submitted, points to the true rule of constitutional construction. Where words are to be found in the Constitution primarily descriptive of individuals, they will be held in the absence of controlling indications to the contrary, to confer on corporations "constitutional immunities appropriate to such bodies." Since the Supreme Court has already held that constitutional protection against arbi1 Hale v. Henkel, 201 U. S. 43 (1906). See Weeks v. United States, 232 U. S. 383, 397 (1914).

trary discrimination is as appropriate to corporations as to individuals, it seems a necessary conclusion from the principle announced in this case that corporations should now be entitled to the benefits of Article IV, Section 2 of the Constitution.

The result of such a principle would be twofold. There would be one class of activities, corresponding generally to the European conception of the "civil capacities" of a corporation, as to which all corporations would be entitled to substantial equality with individual citizens. The right to sue and defend in the courts would be a notable example. This class should include, as European jurists conceive it to include, all those collateral and incidental transactions which fall short of the point at which the corporation is considered as "doing business" within the state.1 It would follow that if a foreign corporation sends an agent into the state to make a single purchase, or to transact an isolated stroke of business, while the corporation itself remains beyond the borders of the state, those contracts and transactions should be placed on a substantial equality with those of individuals, and hence should be upheld and enforced in the state courts whatever may be their general policy toward corporations. As in the case of corporations engaged in interstate commerce, allowable differences in treatment should be only

1 See Mamelok, 59 ff.; Pillet, 15-16; Young, 89-91. M. Pillet (18) gives a striking illustration of the distinction: "Let us suppose that in a neighboring country, in Germany or in Italy, a society for military training should be established, and clothed with legal personality. It would not enter anyone's mind that this foreign society could extend its activities into French territory. And yet there is no reason why, if the occasion presents itself, it should not, as well as a natural person, be admitted to become a property owner, to sue and be sued, in short to do in a general way all those acts which relate to the administration of its property." The distinction is not always, however, so simple: As Mamelok observes (59), “The confusion between the recognition of legal and civil capacity, and admission for the actual conduct of business, is especially easy in that class of juristic persons whose business is not related to an externally visible mechanical equipment, but consists entirely in the making of legal transactions, as for instance in the case of insurance societies." Cf. the discussion of Bank of Augusta v. Earle, supra, 42 ff.

such as reasonably relate to procedure and security in the

courts.

The other result would be that where a corporation does business within the state, of such substantial and continuous character that it may be deemed present in the state as a group, it is entitled to complain of all discrimination between it and similar domestic institutions which is not based on reasonable legislative classification. The protection would cover the whole range of so-called "functional activities," the kind of activities with which alone the social interests of the state are concerned. They would be subject only to the general legislative power of the state, a power to which, fortunately, the Supreme Court has been for the most part, in recent years, willing to grant a sufficiently broad scope to assure the protection of legitimate local interest.

It is probable that the legal development traced in the foregoing chapters, especially if its consequences are accepted to the extent herein contended for, will call for some modification of the traditional doctrine that it is the state of incorporation, and the state of incorporation alone, which determines the domicil, residence, or citizenship of a corporation. There has been a large European literature on the nationality of a corporation.1 It has recently been admirably summarized by an English writer,2 as well as in a Spanish study now accessible in translation; 3 and it is not my purpose to go over the ground again. Briefly, it is clear that except in the case of corporations of a public character, organized by special act, the view that a corporation partakes necessarily of the nationality of the country in which it is incorporated has been very generally rejected. The view most widely prevalent in continental practice is that the nationality of 1 The latest bibliography is in Borchard, Diplomatic Protection of Citizens, 617. 2 Young, op. cit., ch. iv.

3 Arminjon, The Nationality of a Corporation, translated by William E. Spear, for the Spanish Treaty Claims Commission.