Frederic William Maitland

“ If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence. Unless custom or statute aids it, it cannot (so we are told) own a chattel, not even a chattel real. [64] A different and an equally inelegant device was adopted to provide an owning "subject" for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. ”

“ The only artificial persons are corporations. Corporations are either aggregate or sole.
This, I take it, would be an orthodox beginning for a chapter on the English Law of Persons, and such it would have been at any time since the days of Sir Edward Coke. [1] It makes use, however, of one very odd term which seems to approach self-contradiction, namely, the term "corporation sole", and the question may be raised, and indeed has been raised, whether our corporation sole is a person, and whether we do well in endeavouring to co-ordinate it with the corporation aggregate and the individual man. ”

“ So late as the year 1522, the year after Richard Broke took his degree at Oxford, Fineux, C.J. B.R., was, if I catch the sense of his words, declaring that a corporation sole would be an absurdity, a nonentity. "It is argued", he said, "that the Master and his Brethren cannot make a gift to the Master, since he is the head of the corporation. Therefore let us see what a corporation is and what kinds of corporations there are. A corporation is an aggregation of head and body: not a head by itself, nor a body by itself ”

“ I learnt for law that if Praecipe quod reddat is brought against an abbot or a parson, they shall never have aid, for they have a fee simple in the land, for the land is given to them and their successors, so that no reversion is reserved upon the gift.... If a writ of right is brought against them they shall join the mise upon the mere droit, and that proves that they have a better estate than for term of life. And I have never seen an estate for life with the reversion in no one ”

“ Coke adds: [57] "So it is of a bishop, abbot, dean, archdeacon, prebend, vicar, and of every other sole corporation or body politic, presentative, elective, or donative, which inheritances put in abeyance are by some called haereditates iacentes." So here we catch our corporation sole in articulo mortis. If God did not create him, then neither the inferior nor yet the superior clergy are God's creatures.
So much as to the state of affairs when there is no parson: the freehold is in abeyance, and "the fee simple and right is in abeyance". ”

“ On an intestate's death we stopped the gap with no figment, but with a real live bishop, and in later days with the Judge of the Probate Court: English law has liked its persons to be real. Our only excuse for making a fuss over the parson is that, owing to the slow expropriation of the patron, the parson has an estate in church and glebe which refuses to fit into any of the ordinary categories of our real property law; but, as we have already seen, our talk of corporations sole has failed to solve or even to evade the difficulty. ”

“ Again, it seems that conveyances were sometimes made to a parish church without mention of the parson, and when an action for land is brought against a rector he will sometimes say, "I found my church seised of this land, and therefore pray aid of patron and ordinary." [37] We may, however, remember at this point that in modern judgments and in Acts of Parliament lands are often spoken of as belonging to "a charity". Still, our books do not teach us that charities are persons. Lands that belong to a charity are owned, if not by a corporation, then by some man or men. ”

“ English lawyers were no longer learning from civilians and canonists, and were constructing their grand scheme of estates in land. It is with their heads full of "estates" that they approach the problem of the glebe, and difficult they find it. At least with the consent of patron and ordinary, the parson can do much that a tenant for life cannot do; [44] and, on the other hand, he cannot do all that can be done by a tenant in fee simple. It is hard to find a niche for the rector in our system of tenancies. ”

“ Yes, rather than have any dealings with fictitious persons, subjectified churches, personified dignities, corporations that are not bodies, we will have a subjectless right, a fee simple in the clouds. ”

“ In the case of the bishop a permanent "body" exists in which the ownership, the full fee simple, of lands can be reposed. "For", as Littleton says, "a bishop may have a writ of right of the tenements of the right of his church, for that the right is in his chapter, and the fee simple abideth in him and his chapter." [23] The application of the term "corporation sole" to bishops, deans, and prebendaries marked the end of the long disintegrating process, and did some harm to our legal theories. ”

“ Now it seems to me that a speculative jurist might have taken advantage of this phrase in order to reconstruct the theory of the parson's relation to the glebe. He might have said that in this case, as in the case of the corporation aggregate, we have a persona ficta, an ideal subject of rights, in which a fee simple may repose; that the affairs of this person are altered by a single man, in the same way in which the affairs of certain other fictitious persons are administered by groups of men ”

“ But to all appearance there can be no legal transaction, no act in the law, between the corporation sole and the natural man who is the one and only corporator. We are told, for example, that "a sole corporation, as a bishop or a parson, could not make a lease to himself, because he cannot be both lessor and lessee". ”

“ In the case of Henry VI's reign [6] an action for an annuity is maintained against a parson on the ground that he and all his predecessors have paid it; but no word is said of his being a corporation. In the case of Edward IV's reign we may find Danby's dictum. [7] He says that land may be given to a parson and his successors, and that when the parson dies the donor shall not enter; but there is no talk of the parson's corporateness. So again we may learn from Littleton's chapter on frankalmoin [8] that land may be given to a parson and his successors ”

“ If we compare what we have learned as to the old English law of advowsons with the ius commune of the Catholic Church as it is stated by Dr Hinschius we shall see remarkable differences, and in all cases it is the law of England that is the more favourable to pattonage. [31] Also in England we read of survivals which tell us that the old notion of the patron's ownership of the church died hard. [32]
But here we are speaking of persons. ”

“ Its advocates, if they troubled themselves with our affairs, would claim many rules of English law as evidence that favours their doctrine and as protests against what they call "the Fiction Theory". They would also tell us that a good deal of harm was done when, at the end of the Middle Ages, our common lawyers took over that theory from the canonists and tried, though often in a half-hearted way, to impose it upon the traditional English materials. ”

“ Now we must not press this analogy between medieval churches and modern charities very far, for medieval lawyers were but slowly elaborating that idea of a trust which bears heavy weights in modern times and enables all religious bodies, except one old-fashioned body, to conduct their affairs conveniently enough without an apparatus of corporations sole. still, in the main, church and charity seem alike. Neither ever sues, neither is ever sued. The parson holds land "in right of his church". ”

“ The failure of the church to become a person for English temporal lawyers is best seen in a rule of law which can be traced from Bracton's day to Coke's through the length of the Year Books. A bishop or an abbot can bring a writ of right, a parson cannot. The parson requires a special action, the iurata utrum ”

“ The lawyers who take part in the argument say nothing of any corporation sole, and seem to think that obligations could be created in favour of the Treasurer of England and his successors or the Chief Justice and his successors. [20] As to the king, I strongly suspect that Coke himself was living when men first called the king a corporation sole, though many had called him the head of a corporation. But of this at another time. The centre of sole corporateness, if we may so speak, obviously lies among ecclesiastical institutions. ”

“ There follows a comparison which is luminous, even though some would say that it suggests doubts touching the soundness of the theory that is being expounded. "If it is allowable to illustrate one fiction by another, we may say that the artificial person is a fictitious substance conceived as supporting legal attributes." ”

“ The man dies and, if there is office or benefice in the case, he will have no successor until time has elapsed and a successor has been appointed. That is what had made the parson's case a difficult case for English lawyers. Fineux was against feigning corporateness where none really existed. At any rate, a good deal of his judgment seems incompatible with the supposition that "corporation sole" was in 1522 a term in current use. ”

“ I can find no case in which the natural man has sued the corporation sole or the corporation sole has sued the natural man.
When a man is executor, administrator, trustee, bailee, or agent, we do not feel it necessary to speak of corporateness or artificial personality, and I fail to see why we should do this when a man is a beneficed clerk. ”

“ You can conceive ownership, a full fee simple, vested in a man "and his heirs", or in an organized body of men such as a bishop and chapter, or abbot and convent, but you cannot conceive it reposing in the series, the intermittent series, of parsons. ”

“ It will not be news to readers of this journal that there are nowadays many who think that the personality of the corporation aggregate is in no sense and no sort artificial or fictitious, but is every whit as real and natural as is the personality of a man. ”

“ There is, it is true, another passage in what at first sight looks like Littleton's text which seems to imply that a parson is a body politic, and Coke took occasion of this passage to explain that every corporation is either "sole or aggregate of many", and by so doing drew for future times one of the main outlines of our Law of Persons. ”

“ Rede J. seems to say that such a licence would make a corporation. ↑ Rot. Parl. V. 258. It had been supposed for a hundred and twenty years that there had been a chantry sufficiently founded in law and to have stood stable in perpetuity "which for certain diminution of the form of making used in the law at these days is not held sufficient." ↑ 14 Hen. VIII f. 3 (Mich. pl. 2) : "Car coment que le roy voile faire corporacion a J.S. ceo n'est bon, pur ceo que comen reason dit que n'est chose permanent et ne poit aver successor." ”