tive only of the living, single man." Law, of a certainty, is not the result of one man's will, but of a complex fusion of wills. It distils the quintessence of an infinite number of personalities. It displays the character not of a Many, but of a One, it becomes, in fact, unified and coherent. Ultimately pluralistic, the interactions of its diversities make it essentially, within the sphere of its operations, a single thing. Men obey its commands. It acts. It influences. Surely it is but a limitation of outlook not to extend the conception of personality into this incorporeal sphere.

It is urged that to neglect this is to commit injustice where the corporation is concerned. Even less happy shall we feel when we turn to the association that is, oddly enough, termed voluntary; as if your unincorporate body were any less the result of self-will than its corporate analogue. We shall find no law of associations. What we shall find is rather a series of references to the great divisions, contract, tort, and the like, of ordinary law. For here, in the legal view, we have no bodiliness, nothing more than a number of men who have contracted together to do certain things, who, having no corporate life, can do no more than those things for which the agreement has made stipulation. Legally they are no unit, though to your ordinary man it is a strange notion that a Roman Church, a Society of Jesus, a Standard Oil Trust - the most fundamentally unified persons, so he would say, in existence should be thus devoid of group will because, forsooth, certain mystic words have not been pronounced over them by the state. Laughable to most of us this may indeed be; yet none the less certainly is it good law.

We take the voluntary society in contract. Its acts are ultra vires unless they were clearly implied in the original agreement. You join a club. An unwise draftsman has failed through inadvertence to make binding the right to change the rules. When, therefore, the club falls on evil days and changes its subscription you may refuse to pay on the ground that you have not contracted to do so.72 It does not matter that the subscription had been already raised several times; it does not matter that you had assented to the previous changes; that there was practical unanimity among

71 Cf. F. H. BRADLEY, APPEARANCE AND REALITY, p. 532. “For me a person is finite or is meaningless."

72 Harington v. Sendall, L. R. [1903] 1 Ch. 921.

the members as to the need for the change; that without it the whole future of the club was jeopardised. Of all this the courts made entire abstraction. The contract is a fundamental agreement which cannot admit of change. A society clearly living a life of its own will be denied the benefits of that life because it has failed to take advantage of a section in an Act of Parliament.

Nor is the full significance of this judgment clear until one places it side by side with the case of Thellusson v. Valentia.73 The Hurlingham Club from its origin indulged in pigeon-shooting. It was decided to do so no longer, and the plaintiff sought to obtain an injunction preventing the change on the ground that he had contracted for this sport on joining the club. Yet it was held that the change came under the clause admitting the alteration of the rules and was not a fundamental change. It surely will not be argued that a change in a subscription rate is any more fundamental than this. As a plain matter of common sense it is surely obvious that if a society can do the one thing the other should be permitted. If the courts will not protect the prejudices of members whose sporting tastes verge on the antiquarian, why should it protect those whose social tastes verge on the sullen disagreeableness of the boor?

Nor are matters improved when the trust conceals the reality of this group life. The trust, says Maitland,74 "has served to protect the unincorporated Genossenschaft against the attacks of inadequate and individualistic theories. We should all agree that if an Anstalt or a Genossenschaft is to live and thrive it must be efficiently protected by law against external enemies." If it is to live and thrive - let us repeat the words in the way in which we would wish the emphasis to lie. The association is to thrive. It is not to have its life cramped, its development impeded. It is to be sheltered against the attacks of men willing to take advantage of its corporality. So, at least one would think, the trust came into being. And yet it is in precisely the opposite way that the courts have interpreted their purpose. Men's minds may change. Their purposes may change. Not so the purposes of men bound together in an association. The famous Free Church of Scotland case needs no retelling; the House of Lords chose to regard its life as fixed

for it by the terms of a trust not seeing that the fact that the church has a life must necessarily connote its right to develop the terms on which that life is lived.75 Certain eloquent words of Lord Macnaghten, spoken in his dissenting judgment, serve to make clear the opportunity the highest English tribunal chose to neglect. "Was the Church," he asked, "thus purified the Free Church - so bound and tied by the tenets of the Church of Scotland prevailing at the time of the Disruption, that departure from those tenets in any matter of substance would be a violation of that profession or testimony which may be called the unwritten charter of her foundation, and so necessarily involve a breach of trust in the administration of funds contributed for no other purpose but the support of the Free Church-the Church of the Disruption? Was the Free Church by the very condition of her existence forced to cling to her Subordinate Standards with so desperate a grip that she has lost hold and touch of the Supreme Standard of her faith? Was she from birth incapable of all growth and development? Was she (in a word) a dead branch and not a living Church?" 76 We must, surely, accept the point of view of Lord Haldane when he argued that "the test of the personal identity of this Church lies not in doctrine but in its life." To insist on the strictest adherence to the letter of a trust means that the dead hand shall regulate the living even when they have outgrown that hand's control, sixty or six hundred years after its decease. Is there any answer to the protest of Mill when he urged that no person ought thus to be exercising the rights of property six hundred years after his death?" It is more plausible to take one's stand on the spirit of the trust. It would not in substance have been far removed from the doctrine of cy près for the House of Lords to have granted the right of self-development to the beneficiaries of a trust. It is clear, for instance, that religious interpretation has vastly changed since the advent of Darwinism. Would the courts have deprived a church which had so modernised its creed as to take account of the new knowledge from enjoying gifts left to it in a pre-Darwinian age? It is not, at any rate, insignificant that the justice of the courts had speedily to be remedied by Act of Parliament.

75 On all this DR. J. N. FIGGIS, CHURCHES IN THE MODERN STATE, is of very high value.

76 Orr, report of Free Church of Scotland case, p. 573. S. C. 4 F. 1083 (1902). I DISSERTATIONS AND DISCUSSIONS, p. 36.

77

It is no light stumbling-block that this cover of trusteeship has proved. It may be that the trustees of a club will incur liabilities on that club's behalf, though the rules have failed to provide for their indemnity. In that event the members will be able to avoid payment on the ground that they have contracted for no more than their subscriptions, even though the club (and they as its members) enjoy the benefit of the trustees' action.78 Yet it would appear to the man in the street more equitable to make the club pay for that of which it enjoys the benefit. If, for example, the committee of a football club employs an incompetent person to repair a stand which collapses, sanity would appear to require that just as the club would have enjoyed the profits, so, on the collapse of the stand, it is right that it should suffer the penalties. Yet the courts, taking their stand on the principles of the law of contract, held that the members of the committee were responsible and must pay as individuals.79 This is surely the violation of the ordinary principle of English law that he who holds property must bear its burdens no less than enjoy its advantages; nor should an agency or trusteeship obscure the real relation. A case can be conceived, can easily arise, where, without any knowledge on the part of the trustees, and by sheer misadventure on the part of one of their servants, they become liable for damages and the members go scot free. This is surely the reductio ad absurdum of legal formalism. Had the Privy Council in Wise v. Perpetual Trustee Co. applied the perfectly straightforward doctrine of Hardoon v. Belilios 80 no injustice would have thus occurred.

And the contractual theory of voluntary associations can result in fictions compared to which the supposed fiction of corporate personality has less than the ingenuity of childish invention. If you buy a liqueur in a club that does not, in the eyes of the law, constitute a sale. What was before a joint interest of all the members has been magically released to you just at the moment when you expressed your desire to the club waiter, with the result that you can drink in safety.81 Is it worth while thus to strain reality for the sake of inadequate theory?

78 Wise v. Perpetual Trustee Co., [1903] A. C. 139.

79 Brown v. Lewis, 12 T. L. R. 455 (1896).

80 [1901] A. C. 118.

81 Graff v. Evans, 8 Q. B. D. 373 (1882).

Certain property rights serve to bring out the failure of the contractual attitude with striking clearness. The luckless fate of Serjeants' Inn, of Clements' Inn, and Barnard's Inn shows how disastrous can be the attempt to conceal corporateness to the public interest.82 No one believes that the distribution of their property among the surviving members fulfilled the pious purpose of their founders. The property of the unincorporate association can now be taxed 83 (and for income tax at that); but the courts did not tell us whether this was a new method of double taxation or an attempt to recognise the fact of corporateness. The fact that the fishermen of the Wye had for a period certainly not less than three centuries had a perfectly unquestioned user, had therein acted exactly as, in like circumstances, a prescriptive corporation would have acted, did not persuade the Lords to regard them as having rights against the technical owners of the land.85 It were surely an easier as well as a wiser thing to give to this obvious unit the title of unity.

86

Yet another curiosity deserves some notice. The courts do not regard a volunteer corps as a legal entity, so that it cannot be bound by contract. It can become bound only by particular members pledging their liability on its behalf, not for it as agents but for themselves as principals. So a commanding officer of a volunteer corps will be held responsible for uniforms supplied to the corps; though, anomalous as it may seem, he is not responsible to the bankers of the batallion for its overdraft.87 If a corps cannot have a liability for uniforms, why can a liability for its overdraft exist? And, further, if "it" is no legal entity at all, why do we use collective nouns with possessive pronouns and singular verbs?

Now in all conscience these are absurdities enough; yet note what has followed from the denial of a right to sue and be sued. It was the mere accident of his membership of the Middle Temple which made Lord Eldon grant to a body of Free Masons the right to a

82 See a deeply interesting letter in the TIMES for April 10, 1902.

83 48 & 49 VICT., c. 51, and Curtis v. Old Monkland Conservative Ass'n, [1906] A. C. 86.

84 In re Free Fishermen of Faversham, L. R. 36 Ch. D. 329 (1887).

85 Harris v. Chesterfield, [1911] A. C. 623. Lord Loreburn read a valuable dissenting judgment.

86 Samuel Brothers, Ltd. v. Whetherly, L. R. [1908] I K. B. 184.

87 National Bank of Scotland v. Shaw, [1913] S. C. 133.