CURRENT LEGAL ARTICLES.

IN an exhaustive article in the Michigan Law Review for February, Professor Horace L. Wilgus sets forth "The Need of a National Incorporation Law." After tracing the growth of corporations and the attempts which have been made at regulating them, he says:

The thing to be regulated is the big thing, the big, menacing corporation; its national commerce is to be regulated; its holding of stock in other companies is to be regulated; its power to consolidate is to be regulated; its issue of shares is to be regulated; its promotion and organization are to be regulated; its competition with others throughout the country is to be regulated.

Professor Wilgus believes that "No power or authority to do these in the proper and uniform way resides anywhere except in the National Government," and that it would be wise "to enact a national corporation law, in such a manner as to give the National Government unequivocally the ordinary powers of complete control that any State has over its own corporations." To the "imaginary danger" which some persons see in such an act, he replies:

To these something in the way of answer may be suggested. (1) There is no concentration of power,-all that is to be exercised now exists in the National Government; there is therefore no shifting of the balance of powers. (2) It has become apparent that the State governments are unequal to the task, because they have not, and never since the Constitution have had, the power. Because they can not exercise the power, shall the National Government refuse to exercise it when the occasion demands, and when it was conferred upon that government to be exercised "in order to promote the general welfare" as much as any other power? (3) But all the civil rights that are to be so seriously affected, we now hold and always have held, under the same possibility of being limited, expanded, and controlled for the benefit of all, when occasion demanded. (4) But also, it is "we the people" that control in the Federal Union as well as

in the States. The National Government was created to do for the benefit of all, what the States could not do, within the terms of the Constitution. (5) The burdening of the courts might occur temporarily, but not likely to any great extent. Complexity, diversity, conflict, uncertainty, beget litigation. Simplicity, uniformity and certainty have the reverse effect. But even if otherwise the creation of the necessary courts is not often made a plea for refusing to relieve a threatening condition of national extent and operation. (6) Such, or similar, dire results were predicted from the establishments of National banks, but they proved to be imaginary and not real.

There seems to be but one supreme legal test involved in this method,-and that is could the National Government, if it found it necessary, or desirable, classify corporations according to their size and extent of operation, and require, if found necessary, all above a certain size to forego the privilege of engaging in interstate commerce, or tax them so it would be unprofitable, unless they organize under a national act? We believe this question will be answered in the affirmative. The rest would depend on the wisdom of Congress.

Such a national incorporation act should be liberal enough to encourage honorable industrial enterprises; strict enough to prevent fraud and oppression; should protect from unjust State exactions, but require complete compliance with all the laws; should permit large profits commensurate with great risks undertaken, and require the risks and liabilities to be assumed and discharged by those undertaking them; should allow extensive operations and the power and capital necessary to carry them on, but prevent their use as a club to obstruct or detroy others as legal as they; and in general allow great things to be done or undertaken, in subservience to, but not in defiance of, the general warfare; be great to strengthen the hands and add energy to the capital of the honorable and dutiful, and be administered by a power strong and quick to smite the dishonorable and disobedient.

IN The Law Magazine and Review for February, Charles L. Nordon has a timely article on "Blockade and Contraband: Law and Practices of Nations in Modern Times." Concerning blockades Mr. Nordon says:

The conditions necessary to the due institution and maintenance of a blockade, and to insure the liability of any neutral for a breach, are as follows:

(1) The belligerent must intend to institute it as a distinct and substantive measure of war, and his intention must have been brought to the knowledge of the neutrals it affected:

(2) It must have been instituted under sufficient authority:

(3) It must be maintained by a sufficient and properly disposed force.

Although it may be stated of these rules that in theory they are universal in their acceptation by those concerned in war, yet they vary greatly in the method of their application.

The first point whereon any appreciable difference of opinion and practice has existed in recent times is upon the question of the knowledge of the neutral of the existence of the state of blockade. And hereon considerable difference has been adopted between two great schools of thought-that of England and America on the one hand, and that of France, Italy, Spain and Sweden on the other. According to the English and American theory, blockades are for this purpose divided into two classes, viz.: blockades de facto, without proclamation, and notified blockades. In the former case no vessel incurs liability until she commits a breach conscious of the existence of the blockade, that is to say, the onus will be on the belligerent to prove the knowledge of the neutral, save in the case where such de facto blockade has existed for some considerable time, when a presumption of knowledge may be drawn from its notoriety. . . . In the case of notified blockades, notification of the impending blockade being given to neutrals by general proclamation, and a reasonable time being allowed for such notification to take effect, all neutral vessels are deemed to be affected

with notice, and the mere sailing with an intent to break the blockade will be sufficient to warrant condemnation, for a neutral is bound to shape his conduct upon a presumption that a place subject to a blockade at the commencement of a proposed voyage thereto will continue to be so subject up to its termination, and thus be and remain a prohibited destination for the neutral.

But according to the French and Continental theory, all distinction between blockades de facto and those with proclamations on this point being disregarded, the neutral is not bound by any such presumption of continuance; on the contrary, he is permitted to ignore any knowledge acquired by him at any time before he can experimentally test the existence of the blockade on the place subjected to it.

The next point of difference lies in the contrary opinions held as to the continuance and maintenance of the blockade. According to the English and American practice, the blockade is not raised by a mere temporary cessation of operations, provided such cessation be merely the result of unfavorable weather-secus, if by reason of the ships engaged being told off for employment. . . The Declaration of Paris (in harmony with the English doctrine) provides that "Blockades in order to be binding must be effective." . . .

The remaining incident of blockade of any great importance wherein differences obtain both in theory and in practice is its breach.

.. Summing up the French practice hereon, it may be laid down as a general rule that, as the presumption of continuance of every blockade is not admitted, the only act which will occasion forfeiture is an actual attempt on the part of the neutral to effect a breach either by force or fraud. . . . But the English and American Courts, admitting as they do the presumption of continuance, it follows as a natural and logical consequence that they hold subject to confiscation the property of a trader seized at any time during the course of a voyage having clearly for its intended termination the blockaded port. . . .

Certain differences of opinion exist as to the effect of contraband on the vessel carrying it. The penalty attaching to the goods is not in general extended to the ship, and some writers even consider that the neutral vessel has a right to continue on her voyage on her abandoning the contraband she is carrying to the belligerent, unless their quantity is so great that the captor cannot receive them. And this practice was followed by the Confederate States during the American Civil War, though in the opinion of Wheaton it could only be applied to cases in which there is a capacity in the neutral vessel to insure the captor against a claim to the goods. But, under the more common practice, the vessel with its contraband cargo is taken into a port of the captor, where the contraband articles are dealt with either by confiscation or preëmption, the vessel itself in ordinary cases being subjected to no further penalty than loss of time, freight and expenses. If, however, the owner of the ship is a party or privy to the carriage of the contraband goods, the ship itself is dealt with in a similar manner to the cargo.

The Canada Law Journal for February advocates the "Territorial Expansion of Canada"-particularly "the acquisition of the two islands of St. Pierre and Miquelon"and adds:

There is this further argument in favor of the acquisition of these several portions of contiguous territory by Canada, namely, that by no reasonable extension of the Monroe doctrine can the Government of the United States object to any part of the proceeding. It is true that President Polk's gloss upon the now famous doctrine enunciated by his predecessor Monroe, at the suggestion of the English statesman Canning, has been interpreted to mean that any European power would have to obtain the consent of the United States to any acquisition of dominion in the Americas whether by voluntary cession, or transfer, or by conquest (see Dana's notes to Wheaton's Elements, p. 102; Taylor's International Law, p. 146.) But Canada does not come within the

letter or spirit of this inhibition, and the burden that might rest upon Great Britain, were she purchasing sua causa, of establishing that this inhibition is no part of the code of international law, or that Great Britain is herself an American power and so not within the inhibition even if it were valid, would not be raised in the matter of territorial expansion here advocated.

The Harvard Law Review for February contains the second of Professor Bruce Wyman's important papers on "The Law of Public Callings as a Solution of the Trust Problem."

What is contended (says Professor Wyman) is that this distinction between the pulic calling and the private calling is the key to the situation. . . .

All of these cases now under discussion are alike in this, that in all of them the conditions surrounding the industry, and these alone, are held enough to put the business within the law of public calling. That position of affairs may be summed up in a single phrase-virtual monopoly. A review of the instances which have been cited in the course of this discussion will show that this conception of virtual monopoly will cover everything. Nothing narrower will do, as for example the difference sometimes made between the undertaking of a public service an 1 the furnishing of a public supply. Now, it is true that most of the cases are cases of service-the railway and the warehouse, for example; but others of the cases are of supply, -the waterworks and gas works, for instance. Indeed, there is nothing in this distinction, either in economics or in law. Virtual monopoly is therefore the exact description of the situation. It is submitted that any business is made out to be a public calling in which there is, from the nature of things, an inherent virtual monopoly.

Virtual monopoly must now be differentiated from virtual competition. It is submitted that upon this difference our constitutional law turns. If virtual monopoly is made out as the permanent condition of affairs in a given business, then the law, it

seems, will consider that calling public in its nature; on the other hand, if virtual competition is proved as the regular course of things in a given industry, the law will hold all businesses within it as private in their character. In the public calling, regulation of service, facilities, prices, and discriminations is possible to any extent. Such monopolistic conditions demand such police; in no period has this been more apparent than now. In the private callings, however, no such legislation: should be permitted; in no epoch has it been more necessary to insist upon this. Competitive conditions should be left without such restrictions. . . .

So far as one can see, virtual competition is at an end in many of the great industries, and virtual monopoly will henceforth prevail. Therefore it must be said that the public has now an interest in the conduct of these businesses by their owners; they are affected at the present time with a public interest, since these agencies are carried on in a manner to make them of public consequence. Therefore the corporations conducting these businesses, having devoted their property to a use in which the public has an interest, have in effect granted to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest they have created. . .

A company that is engaged in a public business is . . . entitled to a fair return upon its investment. . . .

Plainly there is no safe basis for the determination of the rate except the actual investment. It may be urged that the result of this rule will be to give to the public the alvantage of operation under monopolistic conditions, in particular the elimination of the wastes of competition. The reply is that this is precisely the method that should be pursued in dealing with the trust problem. If the State permits monopoly is may demand in return that the monopolist serve at a reasonable price. This has always been the law of public callings when the statement of it is made with discrimination. No rate per ton, no price per cubic foot is reasonable in itself; it depends for its propriety upon

whether by such charges the railroad company or the gas company in question will earn too much. In the same way the contention of the promoters of the trusts should be met by our law. It is not an answer for the Standard Oil Company to point to the fact that upon the whole it has not advanced the price of kerosene above the price at which it would have been fixed from time to time had competitive conditions prevailed during the whole period. It is still open to the general public to point to the forty-eight per cent. dividends in the last years, to say that these are the proofs of the contention that, notwithstanding, the price of kerosene has been too high during the whole period.

It is not pretended that what has been suggested in this article should be taken as established. It is put forth merely as a working hypothesis that a solution of the trust problem may be found in the law governing the public callings. . . . If this law of public employment could be enforced against the industrial trusts, it may be hoped, a solution would be found for the trust problem.

IN The Commonwealth Law Review (Australia) for December, Wolfe Fink, in an article entitled "The Trend of Litigation and Costs," pleads for simplicity in procedure. On this point he says:

A case should be founded (he says) on a statement of claim, a defence, and a series. of all those admissions of fact which are now only wrung out of each side mutually by the operation of legal machinery.

It is significant that a man can be tried on the most important issue in the world-his life-without any pleadings, and without any interlocutory proceedings, and even an appeal from the verdict, when it lies, is provided for by the simplest, most expeditious and economical of processes; so it is hard to argue that quarrels about property and civil rights demand the expensive decorations that are now in the vogue.

I am arguing for simplicity in litigation because I hold that it means increase of litigation. It is a statistical fact that the greater the prosperity of a country the greater the

litigation; it is a vulgar error to consider such an evil. The adjustment of disputes is a part of the business of the world, and the more simply and expeditiously they can be adjusted the better for the individual and for the Commonwealth.

CHARLES THORNTON DAVIS associate justice of the court, contributes to the Yale Law Journal for February a valuable article on the "Massachusetts Court of Land Registration," in the course of which he says:

All of its provisions are carried out under the immediate order of a special court created for the purpose. The use of the act is purely voluntary, but land once registered remains so. The procedure is purely in rem, and consists in the judicial investigation and determination, upon petition of any person or persons claiming the ownership or power of disposal in fee simple, of the status of the title, and the boundaries upon the ground, of any given parcel of land; of the issuance of a decree and certificate of title in accordance therewith; and thereafter of the immediate judicial construction and determination of all instruments and proceedings affecting the land, and the maintenance of an official and conclusive muniment of the current title thereto.

Upon the receipt of an application for the registration of a parcel of land the title is referred to one of the official examiners, who returns, as his report in the case, a complete abstract of the record title, together with such facts outside the record as he may be able to definitely state, any recommendations he may deem it advisable to make as to requiring the investigation or proof of further facts by the petitioner, a statement of parties other than those named in the petition upon whom notice of the proceedings should be served, and finally, his opinion upon the title. Notice of the proceedings is then issued by the court to every person who appears from any source to have any right or color of claim in the property. The entire abstract is carefully read by the judge before whom the matter comes, this having

been found essential to the issuance of proper notice, to an intelligent trial of the case, and to the ordering of a proper decree which definitely and permanently determines the title.

Any person deprived by land registration of any right or estate without fault on his part is entitled to indemnity from the State treasury, and the responsibility of safeguarding the interests of the Commonwealth, as well as those of all persons having possible claim in or to the land, is thrown directly upon the judges, the whole matter being thus made one, not of clerical routine, but of the administration of justice. . . .

After final decree, future dealings with the land are effectuated by the endorsement or certificate of the recording officer, much as in the case of transfer of certificates of stock, except that the authority for the acts of the assistant recorder is evidenced by deeds and other instruments in their present ordinary form. Registered land is dealt with precisely as is unregistered land, except as to the method and evidence of transfer and the compulsory use of definite boundaries, but the land is no longer subject to the acquirement of any right or interest by adverse possession or prescription. Voluntary transactions are accompanied by a surrender of the duplicate certificate for the proper endorsement, in case of the creation or transfer of a right less than a fee, or the cancellation of the old and issuance of a new certificate where the title passes. In involuntary transactions process issues to the owner to surrender his certificate for proper action thereon.

Judge Davis says, in closing:

There seems to be a present need and a probable future for some such court as a modern though legitimate part of the regular judicial system. The present AttorneyGeneral of Massachusetts has renewed the recommendations of his predecessor that to the new court be given general jurisdiction. in all real actions; and such, if it be properly and conservatively administered, would seem to be its probable and natural development.