EDITORIAL DEPARTMENT the case of commercial associations. . . . The concessions in fact made . . . amount to little more than a recommendation that this sort of juridical person should be dealt with leniently and admitted to recognition on easy terms. "In the United States the consequences of the principle that a foreign juridical person has de jure no personal status have been worked out in a different manner. The prin ciple itself is fully accepted. A corporation, it is said, is an invisible, intangible, and arti ficial being, and certainly not a citizen. It exists only in the contemplation of law and by force of the law, and where that law ceases to operate and is no longer obligatory, the corporation can have no existence. Being a mere creature of local law, it can have no existence beyond the limits of the sovereignty which created it. Such opinions are univer sally accepted, and still repeated. But, under the compulsion of the practical necessities of interstate commerce, judges have declined to draw from them the conclusions of the more severely restrictive school. Story's theory of comity provides a means of escape. . . . All laws, it is said, are of territorial application only, but ' in the silence of any positive rule, affirming, or denying, or restraining the opera tion of the foreign laws, courts of justice pre sume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interest.' This is the comity, not of the courts, but of the na tion. . . . Amongst other foreign laws tacitly adopted by comity must be included those which create juridical persons and clothe them with capacities. No express recognition of the foreign juridical person is necessary. . . . Together with civil personality it must enjoy a personal law. The laws of its domestic state which regulate its existence are the subjects of comity just as much as the laws which create its existence, and therefore it must be recognized to possess the capacities conferred upon it by those laws. Thus all controversies relating to the internal management of the foreign juridical persons, and all disputes be tween its members in their capacities as mem bers only, must be ruled by its domestic law_ and the courts of the state of origin only should exercise jurisdiction over them. At
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the same time comity is not compulsion. . . . When the interest or policy of any state requires it to abolish or restrict the rule of comity, it has but to declare its will by the legislature, and the legal presumption of admission to status and capacity is at once abolished or restricted accordingly. " The position of the foreign juridical person under this theory is in practice almost like that allowed it in the liberal system.'" The vast inconvenience of the restrictive theory is pointed out by Mr. Young. Recog nizing that that is not a sufficient answer to a theory he attacks the soundness of the reasoning on which it is based. Leaving the truth of the " fiction " theory to be criticized in connection with the liberal system and admitting it for the present there is serious confusion in concluding from it that a foreign juridical person is incapable of enjoying civil personality abroad, or of possessing a personal law. Juridical like other persons " have two sorts of function to perform. On the one hand they can sue and be sued, contract, and own property. These are their civil capaci ties. On the other hand they have their pur pose to fulfil; they can educate, heal the sick, insure lives, or mine gold. This we may call their capacity to discharge their functions, or functional capacity. There is nothing in the nature of a juridicial person to prevent it from exercising the former without exercising the latter. A commercial company may sue for a debt in a country without carrying on any business there. A state may buy goods in a foreign country without exercising any func tion of government there. All reasoning hos tile to the status and capacity of foreign juri dical persons based upon the fact that they concern social interests, and are therefore in separably connected with the organism of some particular state, ignores this distinction. Their functional capacities may concern the social interests of a particular state, but their civil capacities do not. . . . The same con fusion appears in the conclusion that a foreign juridical person has no status or capacity be cause its existence is indistinguishable from its object. Suppose that its object can be pursued and its functional capacity exercised in the country of its origin only, and that it can have no object and can exercise no func
