trol the internal management of any church, and refuses to prescribe any form of church government, it is nevertheless true that the law recognizes the existence of churches, and protects and assures their right to exist, and to possess and enjoy their powers and privileges. Of course wherever rights of property are invaded, the law must interpose equally in those instances, where the dispute is as to church property as in those where it is not, and it also takes note of, but does not itself enforce, the discipline of the church, and the maintenance of church order and internal regulation. The law does not assume, and will not declare, that a particular religious association is more truly the church than another, but each and all of them are permitted to make their own regulations, and to enforce them in the manner each has provided for itself." In Watson v. Jones, 13 Wall. 679, the court say: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general associations, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." On the point of the right of sepulture, in the principal case, the case of Guibord was cited; upon which the court remarked: "It is sufficient to say, in disposing of this part of the complaint, that Guibord was dead, and the object of the proceeding in his case was to procure the interment of his body in that part of the Montreal cemetery which was consecrated, whereas the relator has happily no present need of enforcing his claim to burial anywhere, and non constat but that before he does need it, he will have his ban of excommunication removed, and be restored to full fellowship in the congregation."

LIABILITY OF CORPORATIONS FOR ACTIONS INVOLVING MALICE.

IT

66

speed v. East Haddam Bank, 22 Conn. 530, holding the doctrine of the principal cases. Church, C. J., delivered the prevailing opinion, in which Waite, J., concurred; Ellsworth and Hinman, JJ., dissented; Storrs, J., having tried the cause below, did not sit. Church, C. J., said: "These institutions have so multiplied and extended within a few years, that they are connected with, and in a great degree influence, all the business transactions of this country, and give tone and character, to some extent, to society itself. We do not complain of this; but we say, that as new relations from this cause are formed and new interests created, legal principles, of a practical rather than of a technical or theoretical character, must be applied." "The views of the old lawyers, regarding the real nature, power, and responsibilities of corporations, to a great extent, are exploded in modern times, and it is believed that now these bodies are brought to the same civil liabilities as natural persons, so far as this can be done practically, and consistently with their respective charters. And no good reason is discovered why this should not be so; nor why it cannot be done, in a case like this, without violating any sensible or useful principle." 'But after all, the objection to the remedy of this plaintiff against the bank in its corporate capacity, is not so much that as a corporation it cannot be made responsible for torts committed by its directors, as that it cannot be subjected for that species of tort which essentially consists in motive and intention. The claim is, that as a corporation is ideal only, it cannot act from malice, and therefore cannot commence or prosecute a malicious or vexatious suit. This syllogism or reasoning might have been very satisfactory to the schoolmen of former days; more so, we think, than to the jurist who seeks to discover a reasonable and appropriate remedy for every wrong. To say that a corporation cannot have motives and act from motives, is to deny the evidence of our senses, when we see them thus acting, and effecting thereby results of the greatest importance, every day. And if they can have any motive, they can have a bad one; they can intend to do evil as well as to do good. If the act done is a corporate one, so must the motive and intention be. In the present case, to say that the vexatious suit, as it is called, was instituted, prosecuted, and subsequently sanctioned, by the bank, in the usual modes of its action; and still to claim that although the acts were those of the bank, the intention was only that of the individual directors, is a distinction too refined, we think, for practical application."

tent cannot be attributed to a corporation, in its corporate capacity, it is not indictable for those crimes, of which malice or some specific criminal intent is an essential ingredient." "The distinction seems to be between acts injurious in their effects, and for which the actor is liable without regard to the motive which prompted them, and conduct, the character of which depends upon the motive, and which apart from such motive cannot be made the ground of a legal responsibility. If this distinction is well taken, it would follow that since a corporation, as such, is incapable of malice, it is not liable to be sued for a malicious prosecution." "And such appears to us to be the better opinion, although we are aware that there are authorities which seem to sustain the idea that an action for a malicious prosecution may be maintained against a corporation." This is founded on Childs v. Bank, 17 Mo. 213, and on dicta in Stephens v. Midland Counties Co., 10 Exch. 352, and McLellan v. Cumberland Bank, 24 Me. 566.

The case of Gillett v. Mo. Valley R. Co., 55 Mo. 315; S. C., 17 Am. Rep. 653, limits Childs v. Bank of State of Missouri, 17 Mo. 213, which had denied the liability of corporations for assault and battery, malicious prosecution, or slander; and admits that corporations may be liable in such actions, if the act comes within the purview of their charter powers and is within the scope of the agent's authority, or is ratified. But the alleged malicious prosecution there being a criminal prosecution for embezzlement, it was held that this was not within the scope of the corporation's general or special powers, and therefore the action would not lie.

On the authority of the Gillett case, the case of Iron Mountain Bank v. Mercantile Bank, 4 Mo. App. 505, holds that a corporation may be liable for a malicious prosecution, and says "there has been a complete change in the rulings in this respect since Childs v. Bank of Missouri was determined." The case of Carter v. Howe Machine Co., supra, was exactly like the Gillett case in circumstances, and it was held that although a corporation is liable to an action for malicious prosecution, yet in such a case the agent must be shown to have express authority for his act, or it must have been ratified.

The doctrine of the principal cases was held in Vance v. Erie Ry. Co., 32 N. J. L. 334. The court

ciples." The action "involves nothing more than a wrongful act intentionally done."

The same was held in Fenton v. Wilson Sewing Machine Co., 9 Phila. 189, where the authorities are exhaustively reviewed. So in Copley v. Grover & Baker Sewing Machine Co., 2 Woods, 494 (Alabama Federal Circuit), where the Owsley case was disapproved. The court said: "It is not true that a corporation has no mind. Its mind is the joint product of the minds of its officers and directory in a united organization, and in point of fact corporations bring into their service the highest order of ability and the best executive talent in the country." This is rested chiefly on Railroad Co. v. Quigley, 21 How. 202.

In Stevens v. Midland County Ry. Co., 10 Exch. 352, Alderson, B., obiter expressed an opinion that the action would not lie, but the decision was put on another ground. In Whitfield v. Ry. Co., E. B. & E. 115, Lord Campbell overruled a demurrer in such an action, observing "there may be great difficulty in saying that under certain circumstances express malice may not be imputed to and proved against a corporation."

A corporation is civilly liable for vexatiously obstructing one's trade, Green v. London Omnibus Co., 7 C. B. (N. S.) 290; for assault, East Counties Ry. Co. v. Broom, 6 Exch. 314; Moore v. Fitchburgh Railroad, 4 Gray, 465; Hanson v. European & N. A. Ry. Co., 62 Me. 84; S. C., 16 Am. Rep. 404; McKinley v. Chicago, etc., R. Co., 44 Iowa, 314; S. C., 24 Am. Rep. 748; Passenger R. Co. v. Young, 21 Ohio St. 518; S. C., 8 Am. Rep. 78; for false imprisonment, Owsley v. R. Co., supra; for libel, Phila., etc., R. Co. v. Quigley, 21 How. 202; for nuisance, First Baptist Church v. R. Co., 5 Barb. 79; and may be indicted for obstructing a highway, Reg. v. Gt. North of Eng. Ry. Co., 9 Q. B. 315; for libel, State v. Atchison, 3 Lea, 729; S. C., 31 Am. Rep. 663; for Sabbath breaking, State v. Balt. & C. R. Co., 15 W. Va. 362, post; and may be punished for contempt, People v. Albany & Vt. R. Co., 12 Abb. Pr. 171; 3. C., 20 How. Pr. 358.

OBSERVATIONS ON THE PARTICULAR JURISPRUDENCE OF NEW YORK.

VI.

said: "If actions for malicious libel, for vexatious suits, for vexatiously and maliciously obstructing another in his business, for willful trespasses, and for assault and battery, in each of which the motives and intent of the mind are directly involved, can be maintained against a corporation aggregate, no reasons, founded on principle, can be suggested why an action for malicious prosecution should not also be sustainable against a corporation." "When the nature of the action is considered, it comes strictly within the principles by which the actions above enumerated are maintainable." "To hold a corporation amenable to this particular action is strictly in accordance with well-settled legal prin

of the Revolution between England and her transAtlantic colonies were very different from what they had been in the preceding century. The English Constitution, the product of purely local conditions and agencies, had not originally contemplated colonization, for it was built up with the feudal system which demanded a certain contiguity between the lord paramount and his feudataries.

The vast intervening distance of America rendered such a contiguous relation impossible, except in theory; here the king was compelled either to delegate some portions of his prerogatives by written mandates, or authorizations, to resident governors and agents, or else to parcel out these distant dominions by formal grants, after the established precedents, such as counties palatine or the remnant of the duchy of Normandy. Those written delegations, or grants, as they

narrowed the powers of the governing classes and defined the rights of the colonists, came finally to be considered colonial Constitutions, and it is easy to discern that they gave a vast impetus to the AngloAmerican conceptions of constitutional government, and perhaps even suggested the formal constitutions of the Revolutionary period. By the beginning of the eighteenth century, the colonial governments, judicatories and jurisprudence had become somewhat settled, and the early pretensions of the crown correspondingly restricted.

The original motive of the American Revolution-a motive not difficult to discern, but in a juristic sense, most importaut to remember - was the vindication of the paramount rights conferred by the colonial Constitutions. The Revolution, at last, became a necessary protest against the violations of what had come to be considered as the fundamental law. A careful regard to the motive of the Revolution, is observable in the frame of the first State government erected by the Constitution of 1777, on the ancient law of the land. This Constitution imposed no violent changes; it preserved much that was old, and that which was new harmonized well with that which was old. It is not necessary to this conclusion to maintain that the mere externals of the former government remained after the Revolution, for externals of government are secondary; there may be, under liberal guises, most violent tyrannies and e converso. It may be said that the new form of government was founded in pursuance of the origiual motive of the Revolution, because it was founded on those institutions of the common law which have unquestionably been the progressive forces of the Anglican type of law and liberty, and for which the colonists always distinctly contended. This consummation of the original motive of the Revolutionists may be termed the jurisprudential lesson of the Revolution.

Prior to the outbreak of the Revolution, the king was here, as elsewhere in his dominions, parens patrice, a constituent part of the provincial legislature, the general conservator of the peace, the fountain of justice, the generalissimo of the provincial armed forces, and the fountain of all honors, offices and privileges. All this he was, not in a purely theoretic sense, but in a juridical sense and in the sense of the colonial Constitutions. He was the prosecutor for all crimes and offenses of a certain grade, because it was he who was injured, and it was his peace and dignity which were offended. These notions, feudal though they were, entered largely into the practical conceptions of the colonial jurisprudence, and it is impossible to account for certain features of our present jurisprudence without a reference to them. The practical deposition of the king was an overt act of the Revolution, and for a time all his functions, powers and dignities essential to government were vested in revolutionary and temporary governments by committees, delegates and congresses; but on the establishment of the State government, they were, in this jurisdiction, distributed under the State Constitution. It is this historical fact which has caused so many feudal notions and abstractions to survive side by side with an opposed democracy. Our jurisprudence is a mosaic of many textures, one of which is the feudal conception of law in certain of its relations.

Actual hostilities between the king and Parliament on the one side, and the united colonies on the other, began with the battle of Lexington and Concord on the 19th of April, 1775. At the commencement of the struggle temporary governments by committees and congresses were formed in New York. (Butler's Const. Hist'y N. Y. 48.) On the 10th of May, 1776, the Continental Congress recommended that those colonies which were without a sufficient form of government should adopt some suitable goverument. This resolu

tion was read in the Provincial Congress, then sitting at the City Hall in New York, on the 24th day of May, 1776, and a committee was appointed to consider the matter (Jour. Prov. Cong.); they reported, "that the right of framing, creating aud new modeling civil governments is and ought to be in the people." Doubting their power to form a government, the Provincial Congress recommended the election of new deputies, who should be constituted specially for such a purpose. The new Congress having been accordingly elected, met at the Court-House in White Plains, Westchester county, on the 9th day of July, 1776, and on the next day changed the title of the Congress of the Colony to that of the "Convention of the representatives of the State of New York."

On the 16th of July, New York being closely beset by the British forces, the convention postponed the formation of a State government until August following. Meanwhile, all magistrates and officers of justice were requested to exercise their respective offices, provided that all processes and proceedings were under the authority and in the name of the State of New York. This, it will be perceived, was a formal substitution of the State, that vague nomen generalissimum,* for the king, who had ceased to be here the fountain of justice, the offended prosecutor of crimes and the general conservator of the peace. When the convention, pursuant to its adjournment, met in August, a committee was appointed to take into consideration a plan for instituting and framing a State government. (Journ. Prov. Cong., Aug. 1, 1776.) On the 13th of March, 1777, the first section of the Constitution was agreed to; but the debates on the various sections continued at adjourned meetings until Sunday, the 20th of April, 1777, when the entire instrument was finally adopted and promulgated as the supremo law of the State.

Were the particular reasons which occasioned the adoption of the various sections of the first Constitution better known than they now are, it would, in a desultory sketch like the present, be impossible to discuss them in detail. But, owing to circumstances, much of the necessary material for such a discussion is wholly wanting; it is supposed by some antiquarians that a considerable portion of the minutes and memoranda of the first committee on government are yet extant, though but one fragment is either printed or attainable. (Col. of N. Y. Hist. MSS., Revolutionary Papers, Vol. I, p. 552.) It is more easy to credit this when we reflect that as late as 1818, over forty years after its adoption, the State did not possess the original Constitution; it was in the hands of a private gentleman. (Assembly Journ., Feb. 11, 1818, p. 156.) Even the principal authorship of the State Constitution-though generally attributed to Mr. Jay-is uncertain. There is specific proof that Mr. Jay objected to some of its provisions (N. Y. Col. Rev. Papers, 678); and it is asserted in the late history published from the manuscript of the Tory Judge Jones, that the historian William Smith, who later on deserted the popular cause, was its main author. (1 Jones' Hist'y N. Y., p. 143.) However this may be, all must concede the inspiration of its text. It is unnecessary to pursue the historical aspect of the Constitution farther; the late Centennial has added much to the literature of the subject. (See Stevens' Birth of the Empire State, 3 Mag. Am. Hist'y, 1; O'Conor's Centennial Address before the N. Y. Hist. So., 1877; Centennial Celebration of the State of N. Y., Weed, Parsons & Co.; see, also, Butler's Outline of the Const. Hist'y of N. Y.; Address of Chan. Kent before N. Y. Hist. So., December 6, 1828; Sparks' Life of Morris; Life of John Jay, by his son.)

The first Constitution of this State was a statute

* Used formerly in England to designate the government under Cromwell.

enacted by the suffragists of the old province, acting through a convention delegated for the express purpose. It is not difficult to discern that this instrument was the product of the common law, for the terminology and the peculiar institutes, the ear-marks of the common law, are visible in its every line. Such changes as it imposed were the inevitable results of historical forces applied to colonial conditions. Therefore its construction and its development must be read, as its framers intended, by the light of the accumulated experience and bistory of the common law in this country and in England; or else, sophists, Constitution-menders and empiricists will ultimately subvert what remains of it, possibly to substitute something better, but probably something worse.

Few of the features of the first Constitution were novel. There is perhaps no better illustration of this fact than Sparks' accidental commentary, contained in the "Life of Gouverneur Morris" (1 Vol., p. 121): Speaking of the formation of the State government, this author says: "The greatest difficulty was experi"enced in determining where to lodge the power of "appointing officers both civil and military, and by "what mode this power should be exercised. No won"der that this should prove a perplexing topic to new "beginners in the art of government-making, and "especially when a plan embracing many original and "untried features was to be contrived. It was easy to "form a practical system for regulating the powers "and proceedings of the executive, Legislature and "judiciary, as far as the specific duties of each were "concerned, and also the electoral franchise- because "there were very good models in several of the old "colonial governments, and experience afforded all "necessary light." This is a startling commentary on the novel features of the new Constitution, for it would seem that the judicature, the Legislature and the executive, the three great branches of government, were left substantially to the old model, while the main attention of the founders of the new government were directed to the method of appointing the placeBut, yet, this was not an oversight; it was the result of design. The Revolutionary statesmen were not doctrinaires; they were wise and patriotic. It would have been as easy a task to have overthrown the old institutions as it was to preserve them; for the new Constitution was not submitted to the people and it was enacted in a time of great public excitement. The reason why so many of the former features of government were retained, is explained by the reply of John Adams to Mr. Turgot's strictures on the resemblance of the American Constitutions to the English model. He says, in substance, that the colonial plans of government were retained after the Revolution because they were founded in nature and reason, and the people were attached to their familiar features. (Adams' Am. Const., 1 Vol., p. 5.) The Revolution was not waged against these things; it was waged against the king and the Parliament, not against the common law, nor the familiar institutions including the legislative plan, the juridical structure and the general administrative features of government. Hence it was that the Revolutionary statesmen were not doctrinaires.

men.

The first great statute of this State, termed the Constitution, begins with an important preamble in justification of the change of government which it inaugurated; it recites the several steps taken toward this new establishment and concludes, that by virtue thereof all powers of government had reverted to the people. This conclusion, in connection with the first section of the enacting part of the Constitution, was a most explicit enunciation of the doctrine of popular Sovereignty-but of popular sovereignty in a more restricted sense than we now understand the term. The enlightened theory of manhood suffrage came long

after the establishment of the new government by the freeholders of the province. Mr. O'Conor, in the address already referred to, has termed the constitutional declaration that the people were the only source of power, the new political institute. Yet theoretically this institute was not new. The eighteenth century had been the very elysium of political theorists, and many writers of different nations had advanced the proposition that the existence of all States was based on the will of the persons composing them, or upon the social compact. The Constitution of New Jersey, adopted in the year prior to 1777, had contained the recital," that all the constitutional authority ever possessed by the kings of Great Britain over these colonies, or their other dominions, was by compact derived from the people and held of them for the common interest of the whole society;" thus, it is evident that the doctrine embodied in the Constitution was new rather as an institution than as an institute.

To what class of governments the new State government created by the Constitution may most properly be determined, it is not proposed to consider; it may be generally described as of the parliamentarian type. There is reason to suppose that if any violent or radical changes had been made in the pre-existing legislative or judicial institutions they would have alienated the conservative portion of the continental party. For a like reason, the former freeholders of the province were retained as the basis of the future government; and thus all reasons for dissatisfaction were allayed.

The sections of the Constitution which are of paramount importance to the discussion of our subject are those which relate to an institutional Legislature on the Anglican plan, the new and old limitations of the legislative power, the judicatories and the jurisprudence of the new State. A very slight reference to the executive and to the other distributaries of the administrative functions of government will suffice.

The entire legislative power was vested in two separate and distinct bodies; the lower of which retained its provincial name, the Assembly, and the upper of which received that dignified title, the Senate. Their resemblance to the former legislative chambers was so marked as to cause them to be functionally indistinguishable. Referring to the upper branch of the State legislature, Mr. O'Conor says: "The only State organism that bore any shadow of resemblance to the English House of Peers was the Senate; and there, in the closest imitation of our parent state, the Constitution enthroned the supreme judicial power, with final appellate jurisdiction in law and equity. Grace and majesty shone forth in the copy as the original." The resemblance which the Senate bore to the House of Lords was, indeed, slight, for it was modeled on the provincial council, which also had appellate jurisdiction in law and equity. The framers of the State government, intimately acquainted with the organization of tho legislative council, naturally chose for a model that body with which they were most familiar, and which by reason of inherent differences, other than the mere titular dignity and tenure of the members-was a much more desirable model than the House of Lords. What these differences were, we shall have occasion to consider in connection with the extraordinary powers ultimately assumed by the judicial branch of the new government. The leading authorities seem to indicato that the council of the province was unquestionably the model of the State Senate. (Int'd to Journ. of Leg. Council of N. Y., p. xxvi; Col. Doc. III, 624, 628; Journ. Leg. Council; 1 Smith's Hist'y N. Y. 305; Butler's Const. Hist'y N. Y., p. 42.)

Unaccustomed to unlimited legislation, and fearful of the misuse of such vast powers, the Revolutionary Statesmen devised a very remarkable check upon hasty legislation. The third section of the Constitution provided for a revision of all bills by a council cousist