not be had against the director in a foreign State. But if the liability is penal, the obligation is not to be enforced outside the State which created it.

In the State courts the question, what is a penal obligation, appears to be well settled. If the directors' obligation formed part of the original contract, and is given the creditor to prevent his personally suffering a loss of his claim because of some misconduct of the director, it is remedial, and may be enforced in any State. Such a statute as that making the directors liable for debts contracted in excess of the capital stock creates a liability which may be enforced in any State.1 "Where the purpose of a statute is to furnish a remedy to creditors who have been injured by the directors' violation of the requirements of the statute, the liability of such officers is contractual, and actions upon such statutes are transitory and can be brought in any State in courts of competent jurisdiction."2

If on the other hand the liability is imposed upon the director as a punishment for not doing his duty, as for instance, for failure to file a report or for misrepresentation contained in such report, and enures to the benefit of the creditor without regard to the creditor's injury or even to the time of contracting the debt-if in short, the liability is imposed for some act or neglect in no way connected with the contracting of the debt, the obligation is a penal one, and cannot be enforced in a foreign State.

To the same effect are decisions of the courts that liability of the sort just de

'Field v. Haines, 28 Fed. 919; Neal v. Moultrie, 12 Ga. 104; ex parte Van Riper, 20 Wend. 614; Farr v. Briggs, 72 Vt. 225.

2 Tyler, J., in Farr v. Briggs, 72 Vt. 225.

3 Flash v. Conn, 109 U. S. 371 (semble); Mitchell v. Hotchkiss, 48 Conn. 9; Diversey v. Smith, 103 Ill. 378; Halsey v. McLean, 12 All. 438; Derrickson v. Smith, 3 Dutch. 166; Woods v. Wicks, 7 Lea 40; Stephens v. Fox, 83 N. Y. 313. On this ground enforcement of the director's liability in a foreign State was refused in First Nat. Bank v. Price, 33 Md. 487, though in that case the liability would seem to have been purely remedial.

scribed is penal, and therefore does not survive, and that a judgment obtained against the corporation in an action on the contract is res inter alios, and cannot be shown in an action against the director."

The Supreme Court of the United States, however, has taken a different view of this question. It has expressed the opinion that no obligation will be refused enforcement as penal in a foreign State unless it arises out of the commission of a crime. In this opinion Mr. Justice Gray followed the reasoning of the English Privy Council on a Canadian appeal, and held that the statutory liability of a director for filing a false return is not penal, but may be enforced by a creditor by an action brought in a foreign State.

In support of this doctrine no authority. quite in point was cited except the decision of the Privy Council; nor is it believed that at that time any such authority existed. The cases in State courts holding such obligations penal were cited without attempting to distinguish them. The court in support of its view referred to several cases (previously cited in this article) where the remedy was clearly remedial; and to a few cases in which it is difficult to discover how the question under consideration was in any way involved. The view expressed in the case cannot be regarded as sound in principle.

This doctrine was not necessary to the decision of the case before the court, either in the Privy Council or in the Supreme Court of the United States. In both cases the question was whether action could be brought in a foreign State upon a judgment obtained against the director in the State of charter.

4 Fisher v. Graves, 80 Fed. 590; Stokes v. Stickney, 96 N. Y. 323.

How far the dictum in Huntington v. Attrill will be followed when the question is actually presented in the Supreme Court of the United States it is difficult to say. It is naturally followed in the inferior Federal courts.1

A proceeding against a director in such at case, though an action for a penalty is not a criminal proceeding; and if action is brought against the director and judgment obtained in the State of charter, the judgment will be enforced everywhere. The original claim, which was not enforceable in a foreign State. merged in the judgment; and that being an ordinary judgment inter partes, effect is given to it in a foreign State. By this method the director may always be reached, if the incor

'First Nat. Bank v. Weidenbeck, 97 Fed. 896.

2 Huntington v. Attrill, 146 U. S. 657, reversing Attrill v. Huntington, 70 Md. 191.

porating State will have it so; for even if the director is not an inhabitant of that State, a valid judgment may be had against him under a statute providing that any member of the corporation shall be subject to the jurisdiction of the courts of the State. Judgment having been obtained in the State of charter may then be enforced anywhere. No injustice is done, therefore, by the refusal of a foreign State to enforce such provisions.

IV.

When one stockholder or director is obliged to satisfy a claim against the corporation, because of his statutory liability to do so, a claim for contribution from his fellowstockholders or fellow-directors arises which may be enforced in any jurisdiction.3

3 Allen v. Fairbanks, 45 Fed. 445; (but see Sayles v. Brown, 40 Fed. 8); Nickerson v. Wheeler, 118 Mass. 295.

VI.

'HIS period (1688-1789) witnessed the rise

THIS

and development of the press as an organ of public opinion. On May 3, 1695, the Licensing Act expired, and since that day there has been no censorship of the press in England. Within a fortnight the first real newspaper made its appearance, and the history of this great factor in civilization had begun. But no sooner had the press escaped the clutches of the licenser than it compromised its character and imperiled its freedom by becoming the instrument of party rancor. With a construction of the law of libel inherited from the Star Chamber it was an easy matter for the dominant party party to suppress criticism and to crush its critics. The former was accomplished by means of stamp taxes, and the latter by prosecutions for criminal libel. The law was rigorously enforced under William III. and Anne, but the long supremacy of Walpole brought a period of general toleration. Walpole was indifferent to public attack and openly avowed his contempt for the public press. Although the mass of political writers might well be described as "a herd of wretches whom neither information can enlighten nor affluence elevate," the press was, nevertheless, slowly gaining in influence. During the period from about 1760 to 1792 it rose above party and justified its claim to represent public opinion. This period, beginning with the activities of John Wilkes and ending with the excesses of the French Revolution, is one of the most important eras in the history of the liberty of the press. It was then that the nation, excluded from representation in a servile and corrupt House of Commons, found utterance in the public press.

The first notable trial for seditious libel

aiter the Revolution was that of Tutchin, in 1704 (14 St. Tr. 1905). Tutchin was a characteristic specimen of the low class party scribbler of the time. He had fallen into Jeffrey's clutches after Monmouth's Rebellion, and had been sentenced to imprisonment for seven years, together with a whipping each year through every market-town in Dorsetshire-which involved a whipping every fortnight during the term of his imprisonment. He managed to escape this punishment, however, by catching smallpox, and upon his recovery he was able to purchase a pardon. Among many subsequent adventures he is said to have called on Jeffreys, when, after the Revolution, the latter was confined in the Tower, and to have impressed upon him some obvious reflections on the irony of fate. He was finally beaten so severely for one of his scurrilous libels that he died of his injuries.

Tutchin was brought to trial before Lord Chief Justice Holt in 1704 for a libel in The Observator. He had said, in substance, that the ministry was corrupt and the navy inefficient. For this statement, which would now pass unnoticed, he was tried and found guilty of seditious libel, in order that (to use the language of the prosecuting attorney, Sir Thomas Powis) "men might be warned of the difference between liberty and licentiousness." He was ably defended by Sir James Mountague, who succeeded in arresting

Mountague's opening was very graceful: "I can hardly say I am counsel with Mr. Tutchin, because I have never seen him but upon recording his appearance in open court; and he has not thought fit to send us any instructions till this morning, when we were just going down to Westminster. But I do suppose this remissness in his temper does proceed from the inno.cency of the accusation against him, and he has a mind to let the world see how easy it is to make his defense, since he has pitched upon me for his advocate, and given me so little time to prepare myself for it."