Reprinted from Dickinson Law Review, Fall 1988 By: James B. O'Hara
Footnote hyperlinks located within { }
In 1894, Sir Frederick Pollock asked his American friend Oliver Wendell Holmes. "Have you such a thing as a corporation sole still about you?" The future Justice replied, "I don't know of any corporation sole." {1}
I. Introduction
Blackstone begins his treatment of corporations with the following classification:
The first division of corporations is into aggregate and sole... "Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had." {2}
He then proposes two conspicuous examples of corporations sole, one civil ("the king is a sole corporation"); the other, ecclesiastical ("so is a bishop... and so is every parson and vicar"). {3}
In the period prior to the rise of the modern business corporation and the legal evolution and development that accompanied it, {4} the corporation sole was a fixture in every tier of English society. The corporation sole was as distant from the ordinary peasant and tradesman as the Crown, but as the parish clergy.
A modern Holmes attempting a reply to a modern Pollock might initially be perplexed, since the usual sources of ready reference suggest two contradictory conclusions. On the one hand, the sources indicate the corporation sole is "not common," "almost obsolete," {5} or "obsolescent." {6} The standard casebooks and hornbooks of corporation and property law do not usually treat the topic. {7} Cases cited in legal literature are often very old, and the only full-length journal article devoted exclusively to the subject is from the turn of the century. {8} At least one author equates it with the modern "one-person" corporation, {9} although the two have completely distinct origins. {10}
On the other hand, further research reveals functioning corporations sole in at least one-half of the states, with explicit statutory provisions for corporations sole in about a third. In many jurisdictions, this is the manner of incorporating Roman Catholic dioceses, or more accurately, the bishops of those dioceses. {11} From this perspective, the corporation sole is a useful, even commonplace, legal reality.
The apparent discrepancy is not real. The old common law corporation sole, which was transported to American shores in colonial days, is indeed almost dead. However, a modern version, which bears the same name, has evolved and is widely used today. {12} The transformation from the old to the new is a fascinating story, well worth the telling.
The present study proposes: 1) to define the classic common law corporation sole; 2) to trace its development in America; and 3) to describe the present status of the corporation sole in the United States with analysis of its modern forms. The emphasis will be fundamentally American, with English sources serving as points of reference and prologue. Moreover, the English side of the story has already been told. {13}
