in law as having a personality and existence distinct from that of its several members, and which is, by the same authority, vested with the capacity of continuous succession, irrespective of changes in its membership, either in perpetuity or for a limited term of years, and of acting as a unit or single individual in matters relating to the common purpose of the association, within the scope of the powers and authorities conferred upon such bodies of law."

The legal nature of the ordinary corporation has been dwelt upon because it is in exactly the same sense in which legal personality is attributed to it that the State, its creator, is conceived of by the analytical jurist as a person. Both are collectivities, both are regarded as the subjects of legal powers, that is, entities which possess and have the legal right to exercise these powers. In fundamental conception they are, as persons, identical in character. They differ only in respect to the extent of their powers and the legal source whence their powers are deemed to be derived. To the State as a person is imputed a legal omnicompetence and a will that is supreme. As thus legally omnicompetent and supreme the State's authority is regarded as an inherent one, that is, as underived from the legal will of any other legal person. The corporation, upon the contrary, draws its legal life and powers from the State which charters or otherwise recognizes it as a body corporate. It is therefore neither supreme nor of unlimited legal competence. But, in conceptu, its personality is the same as that of the State. Hence it follows that by clearing up the idea of the corporation's personality we obtain at the same time an

One of the classifications of legal corporations is that which groups them into public and private, the former being those which act as governmental agencies of the State. In the text, however, the term corporation has been employed to indicate all those bodies which owe their existence as legal persons to the State which charters or otherwise recognizes them as incorporated bodies.

understanding of the sense in which the State may properly be spoken of as a person.

It has been seen that, in the eyes of the jurist, a person is viewed as the subject, that is, the possessor of legal rights and duties. The fact that the State is viewed as itself the creator of its own legal rights and duties does not make this conception an illogical one. Especially will this appear when the nature of constitutional law is discussed, and the distinction between the State and its Government pointed out. It will also appear that all States permit themselves to be sued in the courts with reference to certain matters, that is, they are quoad hoc treated as persons who are obligated to satisfy legal claims in favor of the plaintiffs who are asserting their respective legal rights. Also, of course, all States appear as plaintiffs in civil as well as criminal causes against other juristic persons. When the State appears as the owner of property or as the directing head in industrial, commercial, or other economic enterprises its legal personality becomes, in most cases, and for nearly all practical purposes, the same as that of the juristic persons which it itself creates.

The legal personality of the State is, however, specially 1 evident in its Public as distinguished from its Private Law. In so far as the rules of conduct that authoritatively obtain in a political community are devoted to the regulation of interests between individuals as such, they create only private rights and obligations, and the State appears only as their enunciator, and, if need be, their enforcer. Such law is therefore termed Private Law. Distinguished from this class of rules are those that concern either the organization of the State and the allocation and delimitation of the powers of government, or the direct relations between the State and the individual. These are termed Public Laws. In Private Laws, as

Holland points out, "the parties concerned are private individuals, above and between whom stands the State as an impartial arbiter. In Public Law also the State is present as arbiter, although it is at the same time one of the parties interested."

The Juristic Person as Volitional. It has already been pointed out that when a juristic person exercises a legal right it is spoken of as expressing its will. In the case of a legal person who is also a natural person, that is, an individual human being, this expression of legal will is usually, though not always, also an expression of the person's will in a psychological sense. Sometimes, however, with regard to such persons, their legal wills are expressible only through other persons, as, for example, is the case when a guardian acts as the legal representative of his ward, or when the parent acts for his child, or in fact, in all those cases in which the natural person, though recognized as a juristic person, is not deemed by the law to be fully sui juris. In such cases, by a veritable fiction, the will of the representative is imputed to, or treated as though it were the will of the person whose legal rights are involved, just as, in cases of agency, in which no element of legal disability enters, the acts of the agent, when acting within the general sphere of his agency, are deemed to be the acts of his principal and to have been willed by him although they may in fact not have been in accordance with his psychological will."

In all cases in which groups of individuals are treated as legal persons it is unavoidable that their respective legal wills should be expressed,—their legal rights exercised,—through agents, such as, for example, the boards of directors and other officers of corporations. In the case

• Elements of Jurisprudence, 6th ed., p. 117.

'There are many other instances, in all systems of law, in which a legal willing is imputed to one who, in an actual or psychological sense, has not willed at all.

...

of States there is the same necessity. Their legal wills are expressed through their legislative or other policy-forming organs of government, and these legal volitions or laws are carried into effect by their administrative and judicial officials. When thus acting, the acts of these officials are deemed to be the acts of the State. Thus, as a psychological proposition, the policies of a State are determined by the judgments of those particular individuals who are recognized to have the legal right to speak the will of the State. In those States in which the principle is accepted that public policies should conform to the will of the governed, the judgments of the persons who actually determine the policies of the States are, by an imputation which in all cases is, to a considerable extent, and in some cases almost wholly, a fiction, deemed to express the will of the whole citizen body. But, in any and all cases, the substantive content of the will of the State is necessarily determined by the judgment of particular human beings. These individuals thus have, ind the eyes of the law, two distinct legal personalities. In their private relations they are legal persons in the sense that they possess legal rights and rest under legal obligations; in their public or official capacities they are mouthpieces or agents of the State, giving expression to its will, and, within the limits of their official authority, enforcing its commands. In all States enjoying what is termed constitutional government, the instant public officials exceed the powers granted them by existing law, they no longer speak or act for the State, and become legally responsible, as private legal persons, for what they do. Only in the case of the completely autocratic ruler is his official will so discretionary that it is possible for him to maintain an actual, if not a technical, identity between the substance of his personal or psychological will and that of the legal will of the State which he governs.

The State as a "Real" Person. In medieval Canon Law the corporation was spoken of as a persona ficta, and this description, developed especially by Savigny in the first half of the nineteenth century, has been very generally followed by modern jurists. However, during recent years, there has arisen a school of writers, represented especially by Gierke in Germany and Maitland in England, who have insisted that this is an incorrect statement of fact, and that, instead, the corporation, and, indeed, all other groups of individuals which have a unity of purpose and interest, whether incorporated by the State or not, should be viewed as "real" persons.8

Maitland, in his introduction to his translation of a portion of Gierke's Genossenschaftsrecht, stating his conception of the "reality" of the personality of the corporation, says: "It is no fiction, no symbol, no piece of the State's machinery, no collective name for individuals, but a living organism and a real person, with body and members and a will of its own. Itself can will, itself can act; it wills and acts by the men who are its organs as a man wills and acts by brain, mouth and a hand. It is not a fictitious person; it is a Gesammtperson, and its will is a Gesammtwille; it is a group-person, and its will is a group-will."9

This theory of Gierke, as Maitland properly points out, and which he unreservedly accepts, is indissolubly connected with the ascription of a similar real personality to the State, and, he declares, the failure of medieval theorists to grasp this idea of the State's personality was their central defect, and one which, if not now corrected, is likely to lead to evil consequences.

'The literature upon the nature of corporate personality is voluminous, but especial reference may be made to Varseilles-Sommières, Les personnes morales; Michoud, La théorie de la personnalité morale; and J. T. Carter, The Nature of the Corporation as a Legal Entity. 'Political Theories of the Middle Ages, p. xxvi.