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personality of a corporation, in order that it may be capable of being recognized in the same way, must have a similar real element in its nature; and if in its nature there is an element of reality, then it is not pure fiction.

In order to reconcile the legal activities of a migrating corporation with the fiction theory, we must add fiction to fiction. If we are to be consistent followers of the theory, we must conceive that a corporation, which becomes the subject of rights and duties in a foreign state, loses its identity ; that its personality is different in the contemplation of the law of each state in which it seeks to discharge its functions; so that it has as many personalities as there are states. And yet common sense tells us that there is only one corporation; and that the personality contemplated by the law of France is in no true sense different from that contemplated by the law of England. To tell us that, however, is to tell us that the personality of a corporation has an objective existence which is capable of being the common object of contemplation for several municipal laws; that it shares, in fact, with a natural person the quality of reality which enables the latter to be recognized as a person by any law without loss of identity, and that it is 'in no sense and no sort artificial or fictitious, but in every whit as real and natural as the personality of a man. If we are to understand the 'recognition'

' . by a foreign state as in no sense implying a reincorporation, but in its literal sense, as a recognition of an existing object, then the object which is recognized must have something more than a fictitious existence, for in the words of a recent upholder in the pages of this REVIEW of the theory that the personality of a corporation is real: . When we say that this corporate person is not a legal fiction, we imply no more than that it is a representation of psychical realities which the law recognizes rather than creates 1.'

We must, in short, have many fictions or none. The theory of a fictitious personality applied to the status of migrating corporations leads to conclusions which are in conflict with common opinion and common sense, and, if we reject them, we are accepting the theory of a real personality.





1 Jethro Brown, The Personality of the Corporation and the State, L. Q. R. xxi.

at p. 372.



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MID the excitement caused by the Russo-Japanese war,

the notices which last summer appeared concerning projected reforms in the administration of Chinese law attracted but little attention in England; yet the subject, which is rapidly developing, may be fraught with tremendous consequences in the near future. A Chinese imperial decree of April 24 last recites how the throne has been advised to recast some of the laws in accordance with the spirit of the age, and how it has been resolved to abolish at once the cruel lingering punishment of hacking the body. It is apologetically explained that the Manchus, previously to their assuming control of the Chinese Empire 250 years ago, knew no punishment severer than simple death ; but that, 'contrary to their own merciful inclinations,' they had been induced to take over this and other exaggerated forms from the laws of the preceding dynasty. In future, therefore, decapitation and strangulation, either immediate or after a period of revision and delay, are to be the only death punishments; the branding of criminals on the face, the exposure of decapitated heads, and the decapitating of dead bodies in the case of criminals not taken alive, are also abolished. A later decree foreshadows the abolition of torture during trial; and apparently this is intended to disappear too, for on July 18 one of the stipendiary magistrates at Peking was dismissed from his post by the Emperor for disobeying the new law in a civil case brought before him.

The chief mover in the above-mentioned reforms was Wu Tingfang, who came prominently before the European public as Chinese Minister at Washington during the Boxer' troubles of 1900-I, and who has since then been the holder of a high post at Peking, and one of the Dowager-Empress's right-hand men. It may not be generally known that this distinguished official is an English barrister who was called to the Bar at Lincoln's Inn a little over twenty-nine years ago, that is to say, on January 26, 1877: during the year 1876 he sat at the feet of Sir James Stephen, who was then lecturing on Criminal Law; and his name still stands in the Law List disguised as 'Ng Choy,' which is simply the Cantonese pronunciation of his unofficial appellation. He was originally

· Delivered in substance as a lecture at the Royal Institution of Great Britain on the 16th of January, 1906.

educated at one of the English schools, I think St. Paul's College in Hongkong, to which colony he returned after call to the Bar; and, after practising there for a few years as a barrister, was offered by the Viceroy Li Hung-chang a post as legal adviser at Tientsin. Thus it will be seen that a humble local origin is no bar in China to a man's gaining the highest position at Peking; and that, indirectly, an English schooling and an English legal training have been in a measure at the bottom of Chinese legal reform. In November last another decree transferred Wu T'ingfang from the Board of Trade to the Board of Punishments, where he will doubtless do excellent work in reforming the Code.

Two memorials from the Board of Punishments to the Throne have already set about reforming the laws on robbery with violence and providing funds for the proper conveyance of prisoners and witnesses at the public expense : in this connexion the laws of England, France, Germany, and Belgium are compared, and reference is made to the Chinese code laws which prevailed 500 and 1,000 years ago.

The fact that Chinese law is in need of practical reform in no way involves the admission that China is devoid of a legal history and equitable principles ; nor must it be forgotten, when we criticize Chinese severity, that until ninety years ago Englishmen guilty of treason were cut down from the gallows whilst alive, and had their entrails taken out and burnt before their eyes: women were burnt alive for treason until 1790; and even until 1870 men convicted of treason were supposed to be quartered after execution. Until William the Fourth's time, highwaymen and other notorious criminals were gibbeted in chains and handed over to surgeons for dissection; and the late Mr. Justice Fitzjames Stephen, in his Digest of our Criminal Law, himself alludes to the atrocious severity of our former larceny laws: hanging for sheep-stealing, for instance, was common enough in Dr. Johnson's time. I believe I am correct in saying that up to the beginning of the late Queen Victoria's reign there were 200 offences for which a man might be hanged; and even now our floggings, though rare, are as brutal and torture-causing as any flogging the Chinese ever administered, and can only be justified on the grounds upon which the Chinese justify themselves. We must therefore make reasonable allowances for other nations; and in any case it must be conceded that a peaceful industrious civilization, containing within it such enormous powers of passive resistance to foreign aggression as China does, necessarily possesses many an occult virtue the secular value of which our own ignorance may have hitherto failed to bring properly to light.

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As a matter of fact China possesses a very extensive and perfectly consecutive legal history: throughout all the changes of dynasty appeal has been made unswervingly to the same ancient principles, and there has been almost no borrowing at all from foreign sources. The foundations of existing legal principle are nearly all to be found in the old classical literature,—the same literature which suggested to Confucius, and to the other Chinese philosophers and legists both before and after him, the various types of political religion : in fact, ritual, law, and religion are simply different expressions of the single all-pervading principle of filial piety, which is the kernel or root-motive of all Chinese ethics.

Sir James Stephen has pointed out that, even in our own time, the conception of the word Law as meaning nothing more than a series of sovereign commands is only gaining ground very slowly. A command,' and a 'sanction' wherewith to enforce the obligation born of that command, are the precise definitions laboriously worked out by the great jurist Austin. This idea is clearly brought out from the very beginning of Chinese legal history, except that the automatic sanction and the command of nature seem to form at first one indivisible unit. Sir Henry Maine, in his Ancient Law, has pointed out that Austin fails to provide us with a motive for command; but the Chinese view that all government must accord with the smooth workings of nature supplies the missing motive. • Punishment laws' rather than · laws and their punishments' is the idea as conceived by the Chinese mind. But the most original thing of all to our European minds is the inseparable connexion between making war and enforcing the law: under the head of the 'greatest punishments' come making war and putting to death ; the secondary punishments' included castration, cutting off the feet, slicing off the knee-cap, and branding; the ‘minor punishments’ flogging and the bastinado. The object of law was to keep the feudal states in order, to make officials do their duty, and to restrain the people from excess. Thus it will be seen that the Chinese conception of law is pre-eminently criminal law. The Emperor as sole lawgiver is the Vice-gerent of Heaven, and it is his duty to govern directly and through his agents in accordance with the harmonious order of nature: if he fails to do so, and persists, he is liable to be overthrown. The law of nature is that life perishes in the autumn; hence that has always been the time for executions.

Unjust judgments shock the smooth workings of nature, and call down various disasters. So far as man is concerned, his five natural relations are those of subject, father, husband, brother, and friend. But, so long as the Emperor governs with reasonable integrity, he is entitled to the absolute obedience of all his lieges. The Emperor is to the State on a large scale exactly what the paterfamilias is to the family on a small scale, the function in either case being that of maintaining order. Our saying Spare the rod

' and spoil the child' is therefore well expressed in ancient Chinese by The lash may not be relaxed in the family, nor punishments in the State, nor arms in the Empire.' The laws are compared to the bit and the rein; to the axe for lopping off evil growths; they are the supports of academical teaching, like the stings used by insects for self-protection ; beginning with war and ending with rules of propriety; instruments for maintaining an even level ; and so on. The government in no way interferes with the management of the family; on the contrary, the whole resources of the State are placed at the service of each family-head, on condition of his being politically responsible in return for the loyalty and order of his family. The whole Chinese administrative system is based on the doctrine of filial piety, in its most extended signification of duty to natural parents and also to political parents, as the Emperor's magistrates are to this day familiarly called. China is thus one vast republic of innumerable private families, or petty imperia, within one public family, or general imperio ; the organization consists of a number of self-producing and ever-multiplying independent cells, each maintaining a complete administrative existence apart from the central power. Doubtless it is this fact which in a large measure accounts for China's indestructibility in the face of so many conquests and revolutions. The very name for the Government' is still the 'State Family'; and the very name for the people’ (of China) is still the ‘Hundred Surnames.' The function of the paterfamilias is to maintain harmony in the family ; that of the Emperor to preserve order amongst the mass of families : evil rule outrages the inspiration, or, as the Chinese call it, the · benign afflatus' of nature, and calls for correction; failing which the Five Elements go wrong, Hence there is really no human command '; the sanction of outraged nature is automatically applied by nature's executive officer, the Emperor.

The Chinese idea of law thus being castigatory, it is not to be wondered at that there is no science of civil jurisprudence in the European sense. Moreover the executive and the judicial powers have always been wielded by the same hand, All matters of what we should call Family Law are left entirely to the family or clan; the government in no way concerns itself—at least so far as taking the initiative goes—with births, marriages, deaths, burials, adoption, legitimacy, divorce, mourning, testamentary dispositions, division

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