i6o
THE GREEN BAG
actions by any fear of punishment.1 Step by step, however, the courts have torn down the artificial protections reared about these artificial persons. Their appearance in court, for a long time stubbornly fought, has been determined legally enforceable. One by one crimes have been added to the list of misdeeds legally committable and legally punishable. The gravest difficulty now confronting the government in its efforts to enforce obedience to the laws is found not in lack of ability to punish, but apparent lack of ability to punish effectively, the convicted wrongdoers. Logically, the next step forward would be to apply to corporations that last resource of the injured State against the persistent law breaker — the absolute restraint for a period of time of his pernicious activities, and the confinement of his illdoing person within limits of absolute control. Corporation law has been developed to its present state by two great causes: First: The desire of guilty individuals to shift the burden of blame from themselves to artificial persons. Second: The desire of the courts to place the responsibility of wrongdoing upon the person who, though the artificial, was in fact the actual wrongdoer. The fifth point raised by Mr. Judson, therefore, is entirely opposed by the trend of modern decisions." While it may logi1 Thompson, Com. on Corporations, Vol. 5, Sec. 6285. "There is no reason why a corporation should be included in the word 'person' for the purpose of jurisdiction and be excluded from it for the purpose of being exempted from liability to penal actions for the commission of wrong for which the statute law makes individuals so liable. On the contrary such an interpretation gives to an aggregated body of wrongdoers an immunity from punishment which individuals do not enjoy." 1 Purdy's Beach on Private Corporations, Chap, on Crimes and Criminal Prosecutions, Sec. 1016 : "The former view that a corporation because it has no physical body, could commit no criminal act, and having no soul, could not be a subject for punishment, is now obsolete. Under the
cally seem highly advisable to single out and punish the actual human beings who have been the chess-men in a corporation's criminal game, there are two good reasons for opposing such procedure. First, the power which has moved knights and pawns is left unpunished and unrestrained. Sec ond, as a practical fact, it is extremely difficult to ascertain who the actual wrong doer is. In most cases, even if he be singled out, he will b« found to have been an uninformed agent made, by the neces sities of earning his livelihood, a mere mechanical tool in the hands of the real criminals who cannot be reached, whose orders cannot be traced, whose responsi bility cannot be proved and who can only be properly attacked, restrained and pun ished through direct punishment of the corporation.1 The corporation is much more flesh and blood of the wrongdoer than is the helpless unpaid employee, whom the law could attack as directly responsible. The very case cited by Mr. Judson of contempt of courts wherein he claims the individual should be held responsible, is the case in which the courts in recent days have gone farthest in upholding the distinct individu ality of the corporation and declaring it has a legal entity capable of violating the orders of court and liable as an artificial person modern rule, the policy of the law and the practice of the courts, is to hold corporations as far as practicable to the same civil liability as natural persons, for wrongful acts, and whether or not committed within the scope of its granted powers. A corporation may be indicted, or punished for any act done or omitted, in violation of law. It may be indicted for committing a felony or a misdemeanor punishable by a fine or a forfeiture. . . . There seems to be no reasonable objection to laws which make corporations criminally liable for the mis conduct of their officers and agents in the dis charge of their duties." 1 Bishop, Criminal Law, Vol. 1, Sec. 424 "Though a corporation is indictable for a particu lar wrong, still the individual member and officers who participate in it may be also for the same act. But they are not so liable in all cases in which the corporation is."
