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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

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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