Reprinted from Dickinson Law Review, Fall 1988 By: James B. O'Hara
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II. The "Old" Common Law Corporation Sole
"Legal nomenclature is for once its own interpreter. A member of a corporation sole is one of a series of single persons succeeding one another in some official position." {14} The crux of this description is not that the corporation sole is composed of a single person. Rather, it is really composed of a number of persons who, one after another, hold the same office. The really crucial element of this definition is the series itself and the seriatim succession.
For example, Queen Elizabeth II, as corporation sole, is identical to Victoria; the present Archbishop of Canterbury in his corporate form is one with his predecessors, Laud, Benson or Lang. {15} The corporation sole, unlike its business counterpart, is only vertical in time.
"There are very few points of corporation law applicable to a corporation sole," according to Kent. {16} There are, however, four legal characteristics unique to it:
1. All corporations sole are "either public officers or dignitaries of the established church." {17} In short, the corporation sole is the incorporation of an office.
2. At common law, the corporation sole can claim title to real property only. {18}
3. Property and powers of a corporation sole are transferred on the death of an incumbent to successors in the office, not to heirs or through executors. {19}
4. The corporation sole lacks the usual trappings of a corporation. It does not have a board of directors, officers, stock, by-laws, official minutes, seal, or corporate name. {20} The older corporations sole are also devoid to royal charter or other formal authorization, characteristics that are required in later corporations. {21}
Historically, both the king and a variety of clergy qualified as corporations in their official capacities. However, the ecclesiastical form is older, dating to the mid-fifteenth century. {22} Initially, the corporation sole grew out of the efforts of judges to solve title problems that arose from the passage of real property to a church. Although the early common law of property was elaborate and intricate, it sometimes lacked the sophistication to deal with these problems. At that time, legal forms did not exist that allowed the devise of real property to a church in fee simple absolute.
The law struggled with this problem in amusing ways. For example, property was sometimes devised to the saint after whom a parish was named, or to the four walls of a church building. Under these circumstances, the local bishop or priest was the agent or administrator. Therefore, it was only a short leap in logic to incorporate the agent. {23}
The hierarchical polity of the English church was well suited to this type of corporate structure. However, it was still another one hundred fifty years before a civil corporation sole appeared when Lord Coke ascribed coporateness to the crown. {24} Blackstone confidently called this development uniquely English. {25} In one sense, he is correct, but modern scholarship also finds a powerful Roman Catholic Canon Law influence on the process. {26}
For all its singularity, the sole corporation had many detractors. In fact, Maitland and Pollock particularly thought it was an anomaly, a "strange conceit," a "juristic abortion," {27} an "unhappy freak of English law," {28} and a "useless figment of shreds and patches." {29}
Some of the criticism came from theorists who objected to the philosophical underpinnings of the fictitious personality of the corporation sole. {30} But practical problems were also evident. The courts accepted some officers as corporations, yet resisted the corporate claims of others similarly situated. {31} This inconsistency may explain why the corporation sole was not widely extended to other civil officers.
Other practical questions were also raised. What claims on corporate property might arise from the heirs of deceased incumbent? What limits on fraudulent transfer by a dishonest incumbent? Is a separate accounting required for the incumbent as corporation and as a private person? Is there a quasi-fiduciary relationship between the corporation sole and his successors?
Added to these questions are several other crucial problems: What happens to the corporation during the illness or absence of the incumbent; and who manages the property, and with what legal force, during an interregnum? These practical considerations were more difficult than the theoretical questions. Yet for all the inconsistency of application and the eccentricity of the concept, the corporation sole has endured in some form for more than five centuries.
