Page:Harvard Law Review Volume 9.djvu/295

EXERCISE OF CORPORATE POWER. 267 of private corporations, except in respect of contracts which are bad in themselves, the making of which are sic prohibited by consider- ations of public morality, of justice, or of a sound public policy, and which therefore stand upon such a footing that neither party can be regarded as innocent or blameless in entering into them." This is the same thing as saying that doctrines of corporate power should no longer exist in any case, for the qualifications enumerated by the learned author already obtain in the case of contracts between man and man. It is somewhat difficult to perceive just how Judge Thompson reaches his conclusion upon principle, for he seems to have but a hazy conception of the two great theories of corporate power, and it is not clear that he even perceives the importance of working out his result upon one or the other of them. His view may be accepted, however, as an evidence of what is believed to be the general sense of the American world to-day ; namely, that society is vastly more interested in the adjustment of the actual relations subsisting between corporations and individuals than in the maintenance of fancied relations between corporations and the State. The franchise to be a corporation is no longer in the hands of favorites of the Crown. It is no longer true that the owners of this franchise have their brethren at their mercy, or even that they occupy a position of peculiar advantage as compared with them. Corporate activity has taken its place in the mercantile world side by side with individual enterprise, and the two work together on equal terms. There are many aggregations of capital which do not take on the corporate form ; while, on the other hand, behind the corporate machinery of many a gigantic enterprise stands a single individual, who has become the owner of all, or almost, all, the shares. It is indeed to the interest of the State that these business ventures should succeed, and it may be said that the scope of their activity should therefore be circumscribed. But surely the question of what branches of business should or should not be combined together is not a question for the courts. The mercantile world must be left to work out the solution of this prob- lem for itself. If, when the problem is solved, it is found that the union of two forms of business enterprise (as, for example, bank- ing and insurance) is fraught with peculiar danger to the public, the case becomes one that is appropriate for legislation ; and specific measures may then be adopted in order to deal with the difficulties which present themselves. Moreover, it must not be forgotten that, independently of these considerations, it remains