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The Personality of an Idol

Published online by Cambridge University Press:  16 January 2009

P. W. Duff
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Extract

In the spring of 1925, the public fancy was caught for a moment by a Privy Council case involving the legal position of Hindu idols. The Times newspaper discussed it in a leading article. The case was fully reported in India and attracted some attention there; but, though it was also reported here, it does not seem to have interested English lawyers. Few readers of this Journal are particularly concerned with the technicalities of Hindu law, but the case seems to have for students of jurisprudence a much more general interest.

Type
Research Article
Information
The Cambridge Law Journal , Volume 3 , Issue 1 , November 1927 , pp. 42 - 48
Copyright
Copyright © Cambridge Law Journal and Contributors 1927

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References

Page 42 note 1 Pramatha Nath Mullick v Pradvumna Kumar Mullick (1925) L.R. 52 Ind. App. 245: 87 Ind. Cas. 305; 23 Allahabad Law Journal Reports, 537; 41 Calcutta Law Journal. 551; (1925) Madras Weekly Notes, 431:2 Oudh Weekly Notes, 557.

Page 42 note 2 41 Calcutta Law Journal, p. 11 n; and even in America: Am. Bar Ass. Journ. Vol. II (1925). p. 431.

Page 42 note 3 Present: Lord Shaw, Lord Blanesburgh, Sir John Edge and Mr. Ameer Ali.

Page 43 note 1 The Reports give either “contracts” or “contacts.” L.R. 52 Ind. App. at p. 257 has contacts.

Page 44 note 1 Though persona in classical Roman Law means a human being, not a “juristic entity”: Buckland. Roman Law of Slavery, 1908, p. 4; 17 Law Quarterly Review, p. 180.

Page 45 note 1 Sutton's Hospital Case (1612) 10 Co. Rep. 32 b.

Page 45 note 2 Savigny, , System des heutigen Römischen Rechts (1840), Vol. 2, p. 312Google Scholar. “Ganz dasselbe gilt aber auch von den Obligationen aus Delicten,” ibid., p. 317. English courts, on the other hand, have held corporations criminally liable, not only for non-feasance, but also for misfeasance, Regina v. The Great North of England Railway Company (1816) 9 Q.B. 315, and their liability in tort extends even to malicious prosecution, Cornford v. Carlton Bank [1899] 1 Q.B. 392 [1900] 1 Q.B. 22; and malicious libel, Citizens' Life Assurance Co. v. Brown, [1904] A.C. 423.

Page 45 note 3 Salmond's Jurisprudence, 7th ed. p. 343.

Page 45 note 4 For this and the other theories see Maitland's, classic introduction to his translation of Glerke's Political Theories of the Middle Age, 1900Google Scholar (reprinted 1913), pp. xx ff.

Page 46 note 1 Trade Union Act, 1871: Interpretation Act, 1889, sect. 19: Taff Vale Rv. Co. v. Amalgamated Society of Railway Servants [1901] A. C. 126; United Mine Workers v. Coronado Co., 259 U.S. 344.383–392; The Status of Trade Unions in England, by W.M. Geldart, 25 Harvard Law Review, p. 579; Herbert A. Smith, The Law of Associations, 1914.

Page 46 note 2 Commentaries: 468, 472.

Page 46 note 3 Marshall, Ch. J., in Bank of U.S.A. v. Deveaux, 5 Cranch U.S. at 90.

Page 46 note 4 Political Theories, p. xxiv; cf. Carr, C.T., Law of Corporations, 1905, chap. XVGoogle Scholar.

Page 46 note 5 Geist des römischen Rechts, 5th ed., 1906, Vol. 3, p. 356 f. For a strong expression of this view see Kniep, Societas Publicanorum, 1896, 1. 273.

Page 47 note 1 E.g. Salomon v. Salomon and Company, Limited [1897] A.C. 22; Macaura v. Northern Assurance Co. [1925] A.C. 619, especially p 633.

Page 47 note 2 Maitland, Political Theories of the Middle Age, p. xxxix.

Page 47 note 3 Has the Common Law received the Fiction Theory of Corporations? 27 Law Quarterly Review, p. 219.

Page 47 note 4 Political Theories of the Middle Age, p. xxv. See also his Collected Papers, Vol. 3. pp. 210–404.

Page 47 note 5 Law and Opinion in England, p. 154.

Page 47 note 6 Legal Personality. 27 Law Quarterly Review, p. 90.

Page 47 note 7 Especially the Trade Union cases referred to in previous note.

Page 47 note 8 E.g. “A living thing with a separate existence which cannot be swept aside as a technicality…a legal body clothed with the form prescribed by the Legislature.” Lord Reading, C.J., , in Continental Tyre and Rubber Co. (Great Britain) Limited v. Daimler Co., Limited [1915], 1 K.B. 893 at 904Google Scholar. Some Symbolist language was used in the House of Lords [1916] 2 A.C. 307, on this case of a British company with 24,999 shares out of 25,000 held by Germans, but the decision went on other grounds: p. 337.