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5 Colum. L. T. 68 (1891-1892)
Liability of a Corporation for the Torts of Its Agents and Servants

handle is hein.journals/clt5 and id is 78 raw text is: THE LIABILITY OF A CORPORATION FOR THE TORTS OF ITS AGENTS AND SERVANTS. By ANDREW F. VAN THUN, JR., LL.B. The old and familiar principle, of uni- versal application in the law of principal and agent, that the principal is liable'for the torts of his agents and servants (though wilful), when committed within the scope of their employment, cannot, at this day be doubted as settled law in so far as the principal is a private individual. But its application in the law of corpora- tions was not, until recent times, so clearly established; owing undoubtedly to the many refinements indulged in by the Roman and early English jurists as to the real character of a corporation. For in- stance, the great German writer, Savigny, in his System of Roman Law, vol. ii., p. 243, says : That the being of all corpora- tions subject to the law exists, not in the single individuals or members composing them, or in all the individuals or members taken together ; but in the corporation considered as an ideal whole or unit. And according to Coke, a corporation is a body politic; which he defines as follows : A body politic is a body to take in succes- sion, framed (as to that capacity) by policy, and therefore it is called by Littleton a body politic; and it is called a corpora- tion, or body incorporate, because the persons are made into a body, and of a capacity to take and grant, etc. (Coke on Littleton 250'; see also Chase's Black- stone, p. 185). As a result of this conception of a cor- poration, the early jurists found great difficulty in logically bringing corporations within the rules of responsibility for crimes and torts, applied to individuals. Savigny, vol. ii., pp. 312 and 313, says : That a corporation is not subject to the criminal law, because the criminal law has to do only with persons of thought, will, and feeling. But a juristic person possesses none of these qualities. And speaking of torts, he says : If a corporation com- mits a tort, the individual wrong-doer (a member) of the corporation is personally liable, but not the corporation. If, how- ever, the corporation has been enriched by the tort, then it is liable to the amount of the enrichment. Thus introducing a qualification (vol. ii., pp. 317 and top 319 ; see also Bacon's Abr. Cor. E., 2, 5). As to crimes, Savigny likens a corporation to lunatics and persons non sui juris who do not come within the jurisdiction of the criminal law (vol. ii., p. 315). And ac- cording to Blackstone: A corporation cannot commit treason or felony, or other crime in its corporate capacity ; it cannot maintain, nor be made defendant to, an action of battery or like personal injuries (Chase's Blackstone, p. 196). We notice therefore both in the Roman and in the English law, this strict adher- ence to the fiction, that a corporation is a distinct juristic person ; an artificial per- son created and sanctioned by the law. But these subtle refinements and specu- lations as to the exact nature of a corpora- tion have, with the progress and develop- ment of modern jurisprudence passed away to a great extent. And to-day we consider not so much the idea of a legal entity, as we do the capacity and power of the individuals actually composing a corporation, in determining its rights and liabilities (Taylor on Corporations, 2d Ed.,

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