requires nothing more. The State is not prohibited from discriminating in the privileges it may grant to foreign corporations as a condition of their doing business or hiring offices within its limits, provided always such discrimination does not interfere with any transaction by such corporations of interstate or foreign commerce. It is not every corporation, lawful in the State of its creation, that other States may be willing to admit within their jurisdiction or consent that it have offices in them; such, for example, as a corporation for lotteries. And even where the business of a foreign corporation is not unlawful in other States the latter may wish to limit the number of such corporations. or to subject their business to such control as would be in accordance with the policy governing domestic corporations of a similar character. The States may, therefore, require for the admission within their limits of the corporations of other States, or of any number of them, such conditions as they may choose, without acting in conflict with the conclud. ing provision of the first section of the Fourteenth Amendment. As to the meaning and extent of that section of the amendment see Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Missouri v. Lewis, 101 U. S. 22, 30; Missouri Pacific Railway Co. v. Humes, 115 U. S. 512; Yick Wo v. Hopkins, 118 U. S. 356; Hayes v. Missouri, 120 U. S. 68.

"The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions, for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the Federal government, or where its business is strictly commerce, interstate or foreign. The control of such commerce, being in the Federal government, is not to be restricted by State authority." Judgment affirmed.1

Mr. JUSTICE BRADLEY was not present at the argument of this cause and took no part in its decision.

NOTE.

"THIS eleventh section [of the Judiciary Act of 1789] deals only with citizens, and it has been from first to last admitted that corporations are not citizens. They are political beings, created by the law, and cannot sustain the character of citizens.

"I suppose it may fairly be said, that neither the framers of the Constitution nor the framers of the Judiciary Act had corporations in view. . . . When this subject first came before the Supreme Court, they took a pretty rigid view of it They considered that a corporation created by the law of a particular State was like a partnership; it had some privileges which partnerships had not, but in substance they considered it to be a partnership, and they went on from that view to this inference that if all the members of a corporation were citizens of one State, and the party on the other side was a citizen of a different State, by alleging that fact jurisdiction could be obtained. This was held in the case of The Bank of the United States v. Deveaux, 5 Cranch. 61

1 Compare Horn Silver Mining Co. v. N. Y. 143 U. S. 305.- ED.

and in the case of The Hope Insurance Company v. Boardman, in the same book, page 57. The two cases were considered together; and it was repeated afterwards, so late as the case of The Bank of Vicksburg v. Slocumb, 14 Peters, 60. Now, you will readily see that there were very few cases of large corporations where all the members were citizens of one State, and that, if it were necessary to aver that fact on the record, the jurisdiction of the courts of the United States would have a very narrow application to corporations. I suppose there is no considerable corporation created by either of the States in which there are not one or more persons who are stockholders outside of the State. Well, this was a difficulty which had been encountered before in the history of the law. If you should take the trouble to look into Mr. Maine's admirable book on the History of Ancient Law, you will find mentioned there three cases of an analogous character. The first arose under the Roman law, where it was necessary, in order to give their important courts jurisdiction, to allege that the plaintiff was a Roman citizen; but after the commerce of the city and the empire became so extended, and such a number of foreigners had important rights and interests to be vindicated in the courts, they introduced what they called a fiction' (fictio), which meant that anybody who had a proper cause of complaint might allege that he was a Roman citizen, and that allegation should not be denied. In other words, they introduced, by their own authority, a rule that a falsehood might be stated on the record, and that the other party could not allege the truth. Well, there were two instances in England like this. One was where the Court of Exchequer obtained a great amount of jurisdiction by an allegation in the declaration that the plaintiff was a debtor to the king, and could not pay his debt unless the court would help him to recover what he demanded in that action; and that allegation was held not to be traversable. A similar allegation was permitted by the Court of King's Bench, in order to obtain jurisdiction as against the Common Pleas; that the plaintiff was in the custody of the marshal of the Court of King's Bench, and consequently could not go into any other court and prosecute his rights. That was held not to be traversable. Now, I want to bring your attention to the case of The Ohio and Mississippi Railroad Company v. Wheeler, 1 Black, 286, and you will see how this decision corresponds with the progress made by the Roman and English courts on similar subjects. Some parts of the marginal note express clearly what I wish to bring to your attention: A corporation exists only in contemplation of law and by force of law, and can have no legal existence beyond the bounds of the sovereignty by which it is created, and it must dwell in the place of its creation.' All that had been previously settled, and is unquestioned law. 'A corporation is not a citizen within the meaning of the Constitution, and cannot maintain a suit in the courts of the United States against a citizen of a different State from that by which it was created, unless the persons who comprise the corporate body are all citizens of that State.' That is the old law. In such cases, they may sue by their corporate name, averring the citizenship of all the members, and such a suit would be regarded as the joint suit of individual persons, united together in a corporate body, and acting under the authority conferred upon them for the more convenient transaction of business, and consequently entitled to maintain a suit in the courts of the United States against the citizen of any State.' That is the old law also.

"Where a corporation is created by the laws of a State' (we now advance to some new doctrine), the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence.' That is laid down as a legal presumption.

"A suit by or against a corporation in its corporate name may be presumed to be a suit by or against citizens of the State which created the corporate body, and no averment or denial to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States.' There is the Roman ‘fiction.' The court first decides the law, presumes all the members are citizens of the State which created the corporation, and then says you shall not traverse that presumption; and that is the law now. Under it, the courts of the United States constantly entertain suits by or against corporations. It has been so frequently settled, that there is not the slightest reason to suppose that it will ever be departed from by the court. It has been repeated over and over again in subsequent decisions; and the Supreme Court

seems entirely satisfied that it is the right ground to stand upon; and, as I am now going to state to you, they have applied it in some cases which go beyond, much beyond, these decisions to which I have referred. So that when a suit is to be brought in a court of the United States by or against a corporation, by reason of the character of the parties, you have only to say that this corporation (after naming it correctly) was created by a law of the State of Massachusetts, and has its principal place of business in that State; and that is exactly the same in its consequences as if you could allege, and did allege, that the corporation was a citizen of that State. According to the present decisions, it is not necessary you should say that the members of that corporation are citizens of Massachusetts. They have passed beyond that. You have only to say that the corporation was created by a law of the State of Massachusetts, and has its principal place of business in that State; and that makes it, for the poses of jurisdiction, the same as if it were a citizen of that State."U. S. Courts, 127-133.1

pur

CURTIS, Jurisd.

"IT is certain that the Constitution and statute law of New York (Const. art. 2, N. Y. Revised Statutes, i. 126, sec. 2) speaks of men of color as being citizens, and capable of being freeholders, and entitled to vote. And if, at common law, all human beings born within the legiance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to the United States, in all cases in which there is no express constitutional or statute declaration to the contrary. Blacks, whether born free or in bondage, if born under the jurisdiction and allegiance of the United States, are natives, and not aliens. They are what the common law terms natural-born subjects. Subjects and citizens are, in a degree, convertible terms as applied to natives; and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. The privilege of voting, and the legal capacity for office, are not essential to the character of a citizen, for women are citizens without either; and free people of color may enjoy the one, and may acquire and hold and devise and transmit, by hereditary descent, real and personal estates. The better opinion, I should think, was, that negroes or other slaves, born within and under the allegiance of the United States, are natural-born subjects, but not citizens. Citizens, under our Constitution and laws, mean free inhabitants, born within the United States, or naturalized under the law of Congress. If a slave, born in the United States, be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States, and born free, he becomes thenceforward a citizen, but under such disabilities as the laws of the States respectively may deem it expedient to prescribe to free persons of color."-2 KENT'S Com. 258, n.

1 Reprinted by permission. This book, published in 1880, consists of a course of lectures given by Judge Curtis at the Harvard Law School in 1872-73.- ED.

STATE v. MANN.

SUPREME COURT OF NORTH CAROLINA. 1829.

[2 Dev. 263.]

THE defendant was indicted for an assault and battery upon Lydia, the slave of one Elizabeth Jones.

On the trial it appeared that the defendant had hired the slave for a year that during the term, the slave had committed some small offence, for which the defendant undertook to chastise her - - that while in the act of so doing, the slave ran off, whereupon the defendant called upon her to stop, which being refused, he shot at and wounded her.

His Honor, JUDGE DANIEL, charged the jury, that if they believed the punishment inflicted by the defendant was cruel and unwarrantable, and disproportionate to the offence committed by the slave, that in law the defendant was guilty, as he had only a special property in the slave.

A verdict was returned for the State, and the defendant appealed.

No counsel appeared for the defendant. The Attorney-General contended, that no difference existed between this case and that of The State v. Hall, 2 Hawks, 582. In this case the weapon used was one calculated to produce death. He assimilated the relation between a master and a slave, to those existing between parents and children, masters and apprentices, and tutors and scholars, and upon the limitations to the right of the superiors in these relations, he cited Russell on Crimes, 866.

RUFFIN, J. A judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own, exist and are thoroughly understood. The struggle, too, in the judge's own breast between the feelings of the man, and the duty of the magistrate is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless, however, to complain of things inherent in our political state. And it is criminal in a court to avoid any responsibility which the laws impose. With whatever reluctance, therefore, it is done, the court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North Carolina.

The indictment charges a battery on Lydia, a slave of Elizabeth Jones. Upon the face of the indictment, the case is the same as The State v. Hall, 2 Hawks, 582.

No fault is found with the rule there adopted; nor would be, if it were now open. But it is not open; for the question, as it relates to a battery on a slave by a stranger, is considered as settled by that case. But the evidence makes this a different case. Here the slave had been

hired by the defendant, and, was in his possession; and the battery was committed during the period of hiring. With the liabilities of the hirer to the general owner, for an injury permanently impairing the value of the slave, no rule now laid down is intended to interfere. That is left upon the general doctrine of bailment. The inquiry here is, whether a cruel and unreasonable battery on a slave, by the hirer, is indictable. The judge below instructed the jury that it is. He seems to have put it on the ground, that the defendant had but a special property. Our laws uniformly treat the master or other person having the possession and command of the slave, as entitled to the same extent of authority. The object is the same - the services of the slave; and the same powers must be confided. In a criminal proceeding, and indeed in reference to all other persons but the general owner, the hirer and possessor of a slave, in relation to both rights and duties, is for the time being, the owner. This opinion would, perhaps, dispose of this particular case; because the indictment, which charges a battery upon the slave of Elizabeth Jones, is not supported by proof of a battery upon defendant's own slave; since different justifications may be applicable to the two cases. But upon the general question, whether the owner is answerable criminaliter, for a battery upon his own slave, or other exercise of authority or force, not forbidden by statute, the court entertains but little doubt.

That he is so liable, has yet never been decided; nor, as is known, been hitherto contended. There have been no prosecutions of the sort. The established habits and uniform practice of the country in this respect, is the best evidence of the portion of power deemed by the whole community requisite to the preservation of the master's dominion. If we thought differently, we could not set our notions in array against the judgment of everybody else, and say that this, or that authority, may be safely lopped off. This has indeed been assimilated at the bar to the other domestic relations; and arguments drawn from the wellestablished principles, which confer and restrain the authority of the parent over the child, the tutor over the pupil, the master over the apprentice, have been pressed on us. The court does not recognize their application. There is no likeness between the cases. They are in opposition to each other, and there is an impassable gulf between them, the difference is that which exists between freedom and slavery - and a greater cannot be imagined. In the one the end in view is the happiness of the youth, born to equal rights with that governor, on whom the duty devolves of training the young to usefulness, in a station which he is afterward to assume among freemen. To such an end, and with such a subject, moral and intellectual instruction seem the natural means; and for the most part, they are found to suffice. Moderate force is superadded, only to make the others effectual. If that fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person. With slavery it is far otherwise. The