of suits against foreign corporations doing business in the state, and its effect was only circumvented by an artificial and cumbersome theory of implied consent to extraterritorial service.

3. The court emphatically proclaimed the constitutional power of a state to repudiate the principle of comity, and not only to refuse recognition to a foreign corporation, but to prevent its transacting any sort of business within the state. This dictum was adhered to, even after the adoption of the Fourteenth Amendment, and it has resulted in endless conflicts between legislatures and foreign corporations and a long course of hard-fought litigation.

The influence of these three dicta will be seen at every stage of the eventful history of the law of foreign corporations, from 1839 to the present day.

CHAPTER IV

THE CITIZENSHIP OF A CORPORATION

1

FEW chapters in American judicial history have been as unsatisfactory as that which treats of the status of corporations under the provision of the Constitution which declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," 1 and that which confers on the federal courts jurisdiction over suits between "citizens of different states."2 Marshall, Taney, Field, these are only a few of the illustrious judges who have at different times sought to lay the matter at rest; yet again and again the court has been called upon to reexamine its previous position, and even today the matter is not definitely concluded. The difficulty has probably been inherent in the subject. In construing provisions of such bold generality, the policy and general purposes of the Constitution are far more valuable criteria than the literal language. The task of the Supreme Court has been to examine the political and economic nature of corporate groups, and to determine with respect to each clause whether beings of that character come within its policy. During the century or more in which it has struggled with this task, however, corporations themselves have undergone a gradual but fundamental revolution. The name remained the same; but it was the changing substance to which the courts must look in interpreting the policy of the Constitution. This changing substance was the element which made for growth and development. But precedents have a way of attaching themselves to names rather than to things, and when cases follow each other in relatively short succession, the point at 1 Art. IV, § 2, Clause 1. 2 Art. III, § 2.

which a change of substance has made the precedents inapplicable is overlooked. Such a conflict between substance and form could not bring harmonious and orderly development.

That there was nothing in the use of the word “citizen " in the constitutional clauses to exclude corporations from their benefits, is amply clear. There were English precedents, known to American students of Coke, holding that a corporation could be an "inhabitant" and an "occupier within the meaning of a statute.1 It had been frequently referred to as a "person." 2 International lawyers have had no difficulty in ascribing citizenship or nationality to a corporation, and have bestowed vast amounts of learning on the various modes of ascertaining it. A corporation may be an "alien enemy enemy" subject to the usual disabilities in time of war. Story had enunciated this doctrine as early as 1814:4

In general, an aggregate corporation is not in law deemed to have any commorancy, although the corporators have; yet there are exceptions to this principle; and where a corporation is established in a foreign country, by a foreign government, it is undoubtedly an alien corporation, be its members who they may; and if the country become hostile, it may, for some purposes at least, be clothed with the same character.

1 Commenting on the statute which provided that "the inhabitants of the said shires" should be charged with keeping bridges in repair, Coke said: “Every corporation and body politick residing in any county, riding, city or towne corporate, or having lands or tenements in any shire, riding, city, or towne corporate, quae propriis manibus et sumptibus possident et habent, are said to be inhabitants there within the purview of this statute." 2 Inst. 703. Lord Mansfield, in Rex v. Gardner, I Cowp. 78 (1755) held that a corporation was liable to assessment under the poor laws, as an inhabitant or occupier."

2 1 Kyd, 15. A penal statute relating to the erection of cottages declared that no person shall . . ." etc. Lord Coke says of it: "This extends as well to persons politick and incorporate as to naturall persons whatsoever." 2 Inst. 736.

• Mamelok, 211; Pillet, 118-160; Young, 110-168; Arminjon, Nationality of Corporations (Spear's transl.) passim. Congress of Joint Stock Companies, Paris, 1889, Art. 21: Every company has a nationality."

* Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105, 131. Accord, The Vigilantia, 1 Rob. I (1798).

A corporation may be a "subject " and as such entitled to registry under the British navigation laws.1 It may even be a loving subject" within the meaning of a colonial grant.2 Story held that a British corporation was an English subject, within the meaning of the treaty clause providing that English subjects should not be regarded as aliens, with respect to legal remedies regarding land held by them in the United States. Under international treaties a corporation is very frequently treated as a citizen. The Danish-French treaty of 1910 has a clause in substance identical and in language closely similar to the privileges and immunities clause of the Constitution: "Danish subjects in France, and French citizens in Denmark, in all that concerns the exercise of civil rights as well as in the exercise of trades and professional or industrial pursuits, shall enjoy the same rights, privileges, liberties, favors, immunities and exemptions as are accorded to nationals." M. Pillet considers it clear that the clause includes corporations.5 Corporations are entitled to diplomatic protection from the state in which they are established, whether or not they are entirely made up of individual citizens of that state, and for this purpose it is the general custom to speak of their citizenship. Where the word "citizen " or an analogous term has occurred in American legislation, it has frequently been held to include corporations. Thus the Captured and Abandoned Property Act, after the Civil War, permitted suits before the Court of

1 Queen v. Arnaud, 9 Q. B. 806 (1846). "Under the operation of this principle," says Judge Baldwin, " no inconsiderable part of the British merchant marine is now virtually owned by Americans." In Two Centuries of American Law, 289.

2 Vermont v. Society for the Propagation of the Gospel, 1 Paine, 652 (1826); 2 Paine, 545 (1827). Perhaps a reluctance to disturb established titles contributed to this holding.

3 Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105 (1814). And see Same v. New Haven, 8 Wheat. 464 (1823). Lord Thurlow called a corporation a subject" in Nabob of Arcot v. East India Company, 3 Bro. C. C. 303 (1791). 4 Pillet, 175. Mamelok, 50. 5 Pillet, 175.

• Borchard, Diplomatic Protection of Citizens, § 282.

Claims by all persons who had not given aid and comfort to the rebellion, and who would bear true faith and allegiance to the Union. The law was held to authorize suits by corporations.1 The French Spoliation Act of 1885 conferred on the Court of Claims authority to adjudicate claims of "citizens of the United States or their legal representatives." This was held to include corporations.2 An Act of March 3, 1887, provided machinery for perfecting titles to government lands illegally appropriated by railroad companies, where any said company shall have sold to citizens of the United States or to persons who have declared their intention to become such citizens." The Supreme Court considered it quite obvious that corporations could take advantage of the act.3 Another statute authorized suits with respect to" all claims for property of citizens of the United States " destroyed by Indians; and this also was held to include corporations. Yet another statute threw the mineral lands of the United States open to citizens of the United States; and it was held that a corporation could locate a claim as a citizen.5 Congress authorized the Postmaster-General to make contracts for the carriage of mail on vessels owned and officered by citizens of the United States; and an opinion by Mr. Taft, then Acting Attorney-General, holds that vessels owned by American corporations come within its purview. Finally the Spanish Treaty Claims Commission, established at the close of the Spanish war, was given jurisdiction to adjudicate" all claims of citizens of the United States against Spain." After the most elaborate argument by eminent lawyers, the Com1 United States v. Insurance Companies, 22 Wall. 99 (1874).

2 See 26 Stat. 905, 907. Per White, J., in United States v. Northwestern Express Company, 164 U. S. 686, 689 (1897).

Ramsey v. Tacoma Land Company, 196 U. S. 360 (1905).

• United States v. Northwestern Express Company, 164 U. S. 686 (1897).

" North Noonday Mining Company v. Orient Mining Company, I Fed. 522 (1880). McKinley v. Wheeler, 130 U. S. 630 (1888).

20 Opinions Attorney-General, 161.