While the commerce of corporations like that of individuals is universally recognized and accepted by for

contemplation of the law, and by force of the law; and where that law ceases to operate and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty. But although it must live and have its being in that State only, yet it does not by any means follow, that its existence there will not be recognized in other places; and its residence in one State creates no insuperable objection to its power of contracting in another. It is, indeed, a mere artificial being, invisible, and intangible; yet it is a person for certain purposes, in contemplation of law, and has been recognized as such by the decisions of this court. Now, natural persons, through the intervention of agents, are continually making contracts in countries in which they do not reside; and where they are not personally present when the contract is made; and nobody has ever doubted the validity of these agreements. And what greater objection can there be to the capacity of an artificial person, by its agents, to make a contract, within the scope of its limited powers, in a sovereignty in which it does not reside; provided such contracts are permitted to be made by them by the laws of the place? "The corporation must, no doubt, show, that the law of its creation gave it authority to make such contract, through such agents. Yet, as in the case of a natural person, it is not necessary that it should actually exist in the sovereignty in which the contract is made. It is sufficient that its existence as an artificial person in the State of its creation is acknowledged and recognized by the law of the nation where the dealing takes place; and that it is permitted by the laws of that place, to exercise there the powers with which it is endowed.

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Every power, however, of the description of which we are speaking, which a corporation exercises in another State, depends for its validity upon the laws of the sovereignty in which it is exercised; and a corporation can make no valid contract without their sanction, express or implied. And that brings us to the question which has been so elaborately discussed, whether, by the comity of nations and between these States the corporations of one State are permitted to make contracts in another. It is needless to enumerate here the instances in which by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another. Where the rights of individuals are concerned, the cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them, according to the laws of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible, when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that Courts of Justice have continually acted upon it, as a part of

eign States, it should be borne in mind that all the rights which they enjoy in the absence of express stipulation flow, not from the commercial clause of a treaty, but from comity. The long observance of this custom has given it the force of a treaty obligation, but it in no way impairs the general rule that a corporation is neither a citizen, subject nor inhabitant in the treaty sense.

Mr. Jefferson in his instructions to the Commissioners to Spain who were to negotiate for the free navigation of the Mississippi River enunciated the doctrine that the terms of Gentis Amicissimae have in view only existing nations and not those that may spring up in the future,1

the voluntary laws of nations.

Adopting, as we do, the principle here stated, we proceed to inquire whether, by the comity of nations, foreign corporations are permitted to make contracts within their jurisdiction; and we can see no sufficient reason for excluding them when they are not contrary to the known policy of the State or injurious to its interests."

The rule is accepted in England and we have adopted our general principles of jurisprudence from that country. Bank of Augusta v. Earle, 13 Peters, p. 519.

1"It will probably be urged, because it was urged on a former occasion, that if Spain grants to us the right of navigating the Mississippi, other nations will become entitled to it by virtue of treaties giving them the rights of the most favored nation. Two answers may be given to this: When those treaties were made, no nations could be under contemplation, but those then existing, or those at most who might exist under similar circumstances. America did not then exist as a nation; and the circumstances of her position and commerce are so totally dissimilar to everything then known, that the treaties of that day were not adapted to any such being. They would better fit even China than America; because, as a manufacturing nation, China resembles Europe more. When we solicited France to admit our whale oils into her ports, though she had excluded all foreign whale oils, her Minister made the objection now under consideration, and the foregoing answer was given. It was found to be solid, and the whale oils of the United States are in consequence admitted though those of Portugal and the Hanse Towns, and of all other nations are excluded. Again, when France and England were negotiating the late treaty of commerce, the great dissimilitude of our commerce (which furnishes raw materials to employ the industry of others, in exchange for articles where industry has been exhausted) from the commerce of European nations (which furnished things ready wrought only) was suggested to the attention of both negotiators, and that they should keep their nations free to make peculiar arrangements with ours, by communicating to each other,

which has since been adopted by several writers.1 It is extremely doubtful if Mr. Jefferson's proposition could be sustained. He himself, as shown in his report to the President, seems of this opinion, for he lays great stress upon the equivalents which the United States had already extended to Spain. It could hardly be supposed that if, through some unforeseen cause, a new nation were created in Western Europe which should secure for its commerce unusual favors from one of the Western Powers, that the latter would not be obliged upon terms of reciprocity to extend the like privilige to nations enjoying the privileges of the most favored nation clause. Such arguments as remoteness or dissimilarity of commerce which might have been used to advantage a century ago have disappeared, owing to the greatly increased facilities of commercial intercourse.

only the rights of the most favored European Nation. Each was separately sensible of the importance of the distinction; and as soon as it was proposed by the one, it was acceeded to by the other, and the word European was inserted in their treaty." (Jefferson turns the argument against himself.) "It may fairly be considered then as the rational and received interpretation of the diplomatic terms of gentis amicissimae, that it has not in view a nation unknown in many cases at the time of using the terms, and so dissimilar in all cases as to furnish no ground of just reclamation to any nation." The report of Mr. Jefferson to the President on substance of instructions to Commissioners to Spain. Am. State Papers. F. R. vol. I, p. 253.2

"In the second place, we have a claim on Spain for indemnification for nine years; exclusion from that navigation, and a reimbursement of the heavy duties levied on commodities she has permitted to pass to New Orleans. The relinquishment of this will be no unworthy equivalent." Ibid, p. 255.

1This favored nation concession has in view only existing nations, and not what may spring up in the future. Bowen, Int. Law, sec. 99. Also Wharton, Int. L. Dig. sec. 134.

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CHAPTER V.

The most favored nation clause deals with favors in foreign commerce and navigation, and for its proper understanding it is necessary to inquire into the meaning of these terms. Commerce between foreign nations means commerce between them as carried on through their citizens, subjects and inhabitants respectively. It consists in selling the superfluity, in purchasing articles of necessity, as well productions as manufactures. It is traffic, but not traffic alone; for it embraces commercial intercourse, which it describes between nations and parts of nations in all its branches; and it is regulated by prescribing rules for carrying on that intercourse.1 Strictly

1(Chief Justice Marshall.) "The subject to be regulated is commerce; and our Constitution being, as was aptly said at the bar, one of enumeration and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The Counsel for the Appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects to one of its significations. Commerce, undoubtedly is traffic, but it is something more,—it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter. If commerce does not include navigation, the Government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the Government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands and has uniformly understood the

considered, foreign commerce consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities. Its transactions have been aptly described as having their beginning in the departure of persons or property from a foreign country, and ending only when those persons become mingled with the common inhabitants, and when the property becomes mingled with the mass of other property of the State to which they are severally brought; and any impediment to these transactions is an impediment to commerce.2

Articles of commerce are the subjects of trade and barter offered in the market as something having an exist ence and value independent of the parties to them. They are commodities shipped and forwarded from one State to another and then put up for sale. But the broad term " commerce" covers more than the mere commodities; it embraces its agents and instruments. The former are the persons through whose efforts traffic and intercourse are effected, as the merchant engaged in foreign trade, the importer, the exporter, and the furnisher of means of transportation; and the latter are, primarily, the means of conveyance or intercourse, namely: the ship, the railroad or other common carrier, and, secondarily money, the bill of exchange, the bill of lading, the post, the telegraph, and the telephone. The right to engage in foreign commerce carries with it not only a license to import, export, buy, sell and exchange the articles of

word commerce' to comprehend navigation." Gibbons v. Ogden, 9 Wheaton, 190, 191.

"Commerce consists in selling the superfluity in purchasing articles of necessity, as well productions as manufactures, in buying from one nation and selling to another, or in transporting the merchandise from the seller to the buyer to gain the freight." Passenger Cases, 7 Howard, p. 416.

2 By Mr. Lord in his argument in the Head Money Cases, 112 U. S. p. 508.