MASSACHUSETTS TRIAL EVIDENCE. By Edwin Gates Norman and Arthur Stillman Houghton. New York: Baker, Voorhis and Company. 1911. pp. ix, 1123.

THE LAW OF INTERSTATE COMMERCE AND ITS FEDERAL REGULATION. By Frederick N. Judson. Second Edition. Chicago: T. H. Flood and Company. 1912. pp. xxiv, 805.

FOUR PHASES OF AMERICAN DEVELOPMENT. By John Bassett Moore. Baltimore: The Johns Hopkins Press. 1912. pp. 218.

HE late Professor Maitland in his introduction to the translation of Gierke's Political Theories of the Middle Ages and in a number of lectures and papers1 now conveniently accessible has familiarized English lawyers with the conception of the reality of corporate personality, and has shown how the institutions of English law (notably the trust) have made possible something like a corporate life in associations to which the formal recognition of corporations has not been accorded. I do not propose in what follows to discuss the validity of the realist conception, in support of which, following in Maitland's footsteps and by way of comment and illustration, I have said something elsewhere. Nor is my title, "The Status of Trade Unions," intended to beg any question of ultimate jurisprudence, much less of metaphysics or psychology, but merely to denote an aggregate of phenomena, which, in their practical working, bear a remarkable resemblance to the status of legally recognized corporations.

The layman might expect that bodies so numerous, so permanent, and often so powerful as trade unions would have received the same formal recognition of their corporate character as has been conferred in one way or another on universities and colleges, on railway companies, and on the numerous trading bodies which we know

1 Maitland, Collected Papers, iii, 210-270.

2 Legal Personality, an inaugural lecture, 27 L. Quart. Rev. 90.

as limited companies. As a matter of fact for good or for ill this has not been done, and trade unions in substance remain in the class of what are called "voluntary" societies, - voluntary not because it is a matter of free choice whether a man will belong to such a society or not, for this may be equally true of membership of a corporation, but because its legal existence, so far as it has a legal existence, is the creation of the will, real or presumed, of its members and does not require the coöperation of any public authority.

It has come into existence simply because its members have agreed to associate; as soon as that agreement is lawfully ended, the association ceases to exist. Nothing beyond this agreement is necessary for its constitution; nothing beyond the lawful ending of the agreement is needed to put an end to the association. The acts of such an association are in the eye of the law the acts of its members, or at least of some of its members; its rights and liabilities are ultimately analysable in accepted legal theory into the rights and liabilities of individual persons.3 Thus there is no special law of associations in England. The law governing associations is in substance the general law of contract, of agency, and of property applied to aggregates of numerous individuals. There is not and never has been any general law forbidding, nor has any special law been needed to allow, persons to associate. Freedom of association has never been looked upon as a privilege requiring constitutional guarantees.

4

Generally speaking, whatever one man may lawfully do, two or more may lawfully do in concert or combination; and though it may be true that in certain cases combined conduct is illegal where the like acts done without combination would be lawful, any such rule against combination if it exists is not a rule relating

No analysis is capable of expressing the whole truth, and in the present case the analysis cannot be made even approximately adequate to the facts without the help of fictions, notably the fiction of countless contracts which have no existence in the minds of the members. The only escape from such fictions would be found in the frank recognition of the corporate personality of voluntary associations. But for my present purpose, I am content stare super antiquas vias.

As to the various views which have been held in England on the question of liability, civil or criminal, for conspiracy, see Erle, Trade Unions (1869); Wright, Criminal Conspiracies (1872); and the statements of Mr. Arthur Cohen and Sir Godfrey Lushington in the Report (1906) of the Royal Commission on Trade Disputes and Trade Combinations.

to associations as such, but applies just as much to the temporary combination of two persons, as to a permanent association of two hundred or twenty thousand. The law knows of no distinction of principle between the temporary agreement of a few and the permanent association of many.

Let us see now how the general law operates in its application to voluntary associations.

1. The law of contract.

An association may be regarded in the first instance as a contract between its members. Any two or more persons may enter into a contract for any lawful object. The promises contained in such a contract made by each member bind him to the performance of such promises, and each is entitled to claim such performance from the others. The terms of such a contract will be found in the rules of an association by which a member on entering agrees expressly or impliedly to be bound, and to the observance of which on the part of other members and of the officers of the society he is entitled.

A contract in general cannot be altered without the consent of everyone who is a party to it. If by the rules the subscription is fixed at a certain amount, a member cannot be forced, on pain of deprivation of membership, to pay an increased subscription.5 But since unanimity in a large body is difficult or impossible, the rules themselves will generally be so framed as to give to a majority, or to a specified majority, e. g., two thirds, usually after compliance with some requirement of notice, a power of alteration. Such a power of alteration will then be a part of the original contract between the members, and every member will be bound by an alteration duly made in accordance with it."

Regarded as a contract, then, the rules of a society are a set of promises made by each member to all the other members, or, where they relate specially to the functions of the society's officers, promises made by the officers to the members generally and by the members generally to the officers. Such a contract regulates the rights and duties of members to each other. Such contracts do not in themselves impose any liability on members towards strangers, or on strangers towards the members.

5 Harington v. Sendall, [1903] 1 Ch. 921.

6 Thellusson v. Viscount Valentia, [1907] 2 Ch. 1.

2. The principles of agency.

It is in the nature of things impossible that all the members of an association should directly take part in every act necessary for carrying out the purposes of the association, and they will therefore provide for the appointment of officers, usually themselves members of the society, for doing most of the acts necessary for these purposes. Such officers are in law agents, persons whose acts will operate to confer rights on the members of the society as against strangers, and rights upon strangers as against the members of the society. Their acts are in law the acts of the members. Nor is this attribution of the agent's acts to those for whom he acts a mere fiction of the law. Where liabilities are incurred by contract, e. g., by the purchase of goods or the hire of services, in accordance with the authority conferred, there is no difficulty in seeing the substantial justice of holding those who have given the authority to be subject to the liability, nor is there any substantial injustice in holding that a similar liability arises where the agent is ostensibly clothed with an authority which is wider than that which has really been conferred. Where again the agent in the course or scope of his employment commits wrongful acts whether wilful or negligent against strangers, those who employ him will incur liability to make good the damage suffered: and the great breadth with which this rule has been generally employed in English law is not felt in ordinary cases to work any substantial injustice. In the case of associations the actual or ostensible authority of the agent or the scope or course of his employment will largely, at any rate, depend on the purposes of the association as declared in its rules.

3. The law of property, especially the law of trusts.

What is the legal position of the property of such a society? The law allows property to be owned not only by individuals separately, but also by two or more individuals as co-owners. Thus it is conceivable that the property of an association might directly be held by all the members as co-owners. But in practice such an arrangement would be found unworkable, for the legal forms of transfer are such that the necessary transfer of interests on the retirement of members and the entry of new members could not in practice be carried out. Thus it becomes necessary that the common property should be ostensibly in the hands of some