of the act of Congress as applied to such a class of persons might be open to question. Its power to enact the law does not seem to be subject to reasonable question. The constitutional guaranty of the equal protection of the laws is invoked by Turner's counsel, as well as that of due process of law. These provisions are invoked to show that his imprisonment under the warrant based on the statute is illegal. But the de cisions have established that the deportation of an alien entering in violation of law does not deprive him of liberty without due pro cess of law. It is clear that, if Congress has the right to exclude an alien from this coun try, such exclusion does not deny him the equal protection of the laws. The sole ques tion, therefore, seems to be whether or not it is within the power of Congress to say what classes of aliens shall be permitted to enter this country. IN the American Law Register for July Professor George Wharton Pupper, in the first of a series of articles on "Irregular As sociation," discusses in an able manner the important and difficult question of the lia bility of the associates. Are they liable without limit as -principals? On this point he says in conclusion: It being the fact that limited liability is by modern custom accorded to many debt ors, and it being conceded that limited liabi lity is nowadays an incident of regular statutory organization, the important ques tion is whether limited liability can be at tained by irregular as well as by regular organization? To answer the question in the negative is to refuse recognition to the conditions which result from the American decisions. To give an affirmative answer is (excepting where the defendant's immunity can be explained on agency principles) to recognize the possibility of incorporation by the private act of the associates. To choose between these two alternatives is a responsi bility which courts cannot escape. Longer to make fictional applications of a collateral attack theory and an estoppel doctrine is in
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consistent with intellectual self-respect. To develop the contract theory is to give the name of contract to an obligation not really consensual. Therefore it is necessary to choose between adherence to the commonlaw principle of unlimited liability and a view which enables associates to limit their liability but leaves the State free to regulate the conditions under which the limitation may be lawfully effected. Frankly to aban don the unhistorical concession theory and to limit the function of the State to the regu lation of associations formed by the parties is to furnish a rational explanation of a mass of cases in which collateral attack and estoppel and contract are at present mingled in distressing confusion. . . . It remains for the courts to recognize and avow the real significance of their own decisions or else render those decisions obsolete by enforcing liability in even- case in which there has not been substantial com pliance with a constitutional statute. Ъу 'substantial' is meant such compliance a* would be regarded as sufficient to prevent a judgment of ouster from going against the associates. To make a wise choice between these alternatives requires that a judge should consider the economic consequences of an abolition of unlimited liability. To remove the sanction of unlimited liability is to do in the field of law that which is analogous to the weakening, in the domain of ethics, of the sense of personal accountability. In the opinion of the writer, legislative grants of limited liability have been far too freely r,,?.de in this country. The courts have only aggravated the evil by conceding immunity in cases of irregular organization. A judge may, however, well conclude that as a prac tical matter the mass of precedent cannot he disregarded and that he will recognize incor poration by private act and leave it to the legislature to punish those who limit their liability without a license. Upon this view of the situation the inquiry in each case should hereafter be whether the associates have in fact organized a group in a form for
