Page:Harvard Law Review Volume 9.djvu/287

EXERCISE OF CORPORATE POWER, 259 was not discussed, although distinctly recognized. In the later case the plaintiff unquestionably had a claim against the defendant to prevent the unjust enrichment of the latter. In point of fact, equitable proceedings in disaffirmance of the contract and for an accounting are to-day pending in the Circuit Court of the United States for the Eastern District of Pennsylvania.^ The other cases cited need not be reviewed in detail. The writer, after careful consideration, ventures the assertion that in no one of them is there to be found a recognition of the doctrine outlined by the learned author. Possibly, therefore. Judge Thompson is unnecessarily severe when he asserts^ that '* such was the doctrine which our ancestral lawyers mouthed with owl-like wisdom, and which our ancestral judges rolled as a sweet morsel under their tongues." The second point for examination is the "revolt against the doc- trine of ultra vires, This judicial movement is treated by Judge Thompson as a moral reformation. He begins with some re- marks to the effect that half the exertions of an advocate are put forth in maintaining the wrong side in legal controversies. Then follows this somewhat startling language: "The natural result is, that, when reasoning on legal subjects, lawyers, though upright and just in their private affairs, fall into the habit of dismissing con- science and of laying moral considerations out of view. This habit follows them when they ascend the bench as judges ; it has settled like a fog over the professional intellect and conscience to such an extent that we now constantly hear from high sources the infamous proposition that there is no necessary connection between the law and concrete justice or morality." In such a state of moral chaos one could scarcely have hoped to find the germs of higher life. It might well have been feared that persistence in the practice of up- holding the wrong for at least one half the time would have ended in the hopeless perversion of conscience and the destruction of the moral principle. But no : Judge Thompson assures us that the renaissance of conscience had its beginning when all that was good seemed about to perish. "Nevertheless, the judicial and profes- sional conscience, dulled as it had been by this habit of reasoning in behalf of wrong, could not forever endure a rule of law which enabled one party to a contract, perfectly innocent when made be- tween natural persons, to keep the fruits of it, and repudiate it ^ No. 44, October Sessions, 1886. See report of one of the stages of this litigation in 65 Fed. Rep. 158. 2 Page 380.