depreciation of these subordinate bodies. Even on the admissions of these lawyers, however, all does not seem to turn on the acceptance of real corporate personality. In a most illuminating paper 1 Maitland showed how the English law had avoided the excesses of State absolutism in these matters by the institution of the trust. The free religious bodies especially were able to work out their own lives under this legal form. Screened from the outer world by their trustees, these religious societies were able to exercise their rites and cultivate their ideals without the hard necessity of seeking from the Crown the favour of incorporation, which they could hardly have gained without subjecting themselves to constant State control.2 Similarly even when change in the law in 1862 made incorporation easy, many bodies that were flourishing under the existing legal provisions refused to avail themselves of the right. In particular Maitland mentions the contentment with the old status shown by clubs and learned societies: 3 and the avoidance of the corporate form in America. It must be admitted, however, that the trust has not proved altogether secure from the dangers of the 'fictitious personality'. Interpreted strictly the law would tie a society down to the purposes of its original trust deeds, and consequently deny opportunities for growth and even shut its eyes to the plain facts of actual development. The classical instance of this danger is of course the treatment of the United Free Church of Scotland, where the law had to be unmade as soon as it was finally declared.

The

1 The essay on 'Trust and Corporation', reprinted in the third volume of his Collected Papers.

+ Cf. Maitland's remark: 'I cannot think that Parliament's timid treatment of the Trade Unions has been other than a warning, or that it

trust in fact allows corporate bodies a safe basis for their beginnings but no easy room for expansion.

Admit then that these associations ought to be encouraged not only to exist, but to develop at their own discretion, and the doctrine of their real personality seems useful from the legal standpoint. It is clear that their most determined advocates could hardly wish to exempt them from all control, and the entire independence of their 'personality' from State intervention might result in far greater harm than the continual interference, which might reasonably be dreaded under the theory that their personality is only an authorized fiction. Legal immunities thus obtained might pave the way to a tyranny of the association over its members, or a complete transformation of its nature under the cloak of 'natural growth'. If personality and all its privileges, for example, were given to a friendly society it is hard to demand that the State should thereby concede the unquestionable right of turning the society into a machine for political jobbery and corruption, to be exercised with the same freedom from legal control.1 It will be necessary to inquire more precisely into the proper relations of the central authority to these subordinate bodies. I will only say for the present that some amount of control there certainly must be. If the legal doctrine of the persona ficta tends to make this control excessive and overbearing, then in consideration of the great value of these associations— which also will be discussed more at length in succeeding

was a brilliant day in our legal annals when the affairs of the Free Church of Scotland were brought before the House of Lords, and the dead hand fell with a resounding slap upon the living body.'

1 Yet consider the history of Tammany Hall.

But once

pages-it would seem best to abandon it. again, what the lawyer calls a real person is not a real person from the ethical or metaphysical standpoint. The whole doctrine could not be admitted if it really meant that the ultimate moral unit', to employ Maitland's phrase, was something higher and greater than individual men and women. The value of these

organizations consists simply in the value of the individual life made possible through them. The responsibility of these organizations, however the lawyer may regard it, must ultimately consist in the responsibility of its various members. To take any other view will lead finally to that social mysticism, if the phrase may be pardoned, which reaches its most serious development in the wild exaltation of the State over its members presently to be discussed. In one of his lectures, Maitland puts the case of an imaginary sovereign State called Nusquamia which rouses civilized indignation by repudiation of its debt. He suggests that you cannot convert the proposition that Nusquamia owes you money into a series of propositions imposing duties on certain human beings that are now in existence'; that the word 'collectively' does not help at all: and that we may have to be content with the idea that Nusquamia is here the ultimate and unanalysable unit of responsibility. I believe, on the contrary, that the first of those propositions expresses the literal truth: and similarly that the responsibility of the State or association of men will always be analysable into the responsibilities of its members. Exactly to apportion them may be difficult. According to the form of government the individual citizen has more or less power of affecting the course his

1 iii. 318.

How

country pursues: and with his power varies his responsibility. Again the minority in Nusquamia, who disapprove of repudiation and vote against it, are not so culpable as the majority that carries it: yet so far as by tacit assent to the law and administration of their country, they really support it, some part of the responsibility will fall on them: just as the inheritors of wrong privileges, those who fill useless or harmful positions in society are partly responsible for the evil of the situation into which they are born, because they agree to fill it and take its perversions on their shoulders. If you urge that in this way the exact apportionment of responsibility for corporate actions is difficult or indeed impossible to determine, I admit the fact. But with what are called individual actions is the position much clearer ? much of my thought is really my own', how much has been suggested to me by books or teachers or the whole physical and social environment of life? We shall never be able to distinguish the purely spontaneous from the derivative or determined elements in human life. Rather we must call the whole both spontaneous and determined. There was unquestionably progress made when the blood-feud was abandoned and men ceased to treat kinsmen of a murderer, who had been ignorant of the whole affair, as equally guilty with the murderer himself: but it is mere error to press on in this way to the view that men act altogether 'freely' under no determining influence from training or surroundings. The absolute responsibility of any individual is in fact a myth: none but anomnipotent creator could be absolutely responsible. There is therefore no cause for surprise, if when men act collectively, we find it difficult to say how far this man and how far that man must be taken to account for what

the body as a whole decided: but the real difficulty of that problem ought not to lead us, except in admitted metaphor, to speak of a mind or will in the corporate body as distinct from its members. It may not be necessary, it may indeed be harmful, in law to call a corporation a fictitious person: but that is only because in any case legal persons need not be persons at all.

§3. The State and the Citizen

WITH the anxiety of certain modern writers to find for minor societies an adequately secured legal position therefore I fully sympathize, and their importance within the State or even as contrasted with it, will be discussed in more detail later. But whatever doctrine of juristic personality is therefore adopted, it need not be supposed that the group is in any way more valuable, more responsible than the individual members of it. When we come to the greatest group of all, the State, this same doctrine must be carried forward. So far as a nation has a constitution and a policy, we may talk of a national life guided by certain ideals and planned so as to secure the co-operation of its citizens in the pursuit of one great end. But this life does not imply the existence of a personality in the full metaphysical sense higher than the finite individuals absorbed in it. It depends on the minds and wills of private citizens: it aims at the welfare of each citizen, and has no welfare of its own really distinct from that of its members.1 For this reason we ought from the outset to be discontented with any view that condones individual defects by pointing to the

If some individual sacrifices himself for the State, that means, in the long run, sacrifice of himself for some fellow-beings whether already existing or belonging to future generations.