Common Law Corporation Sole
COMMON LAW CORPORATION SOLE
Religious corporations sole have existed under the common law for 600 years. James B. O’Hara, The Modern Corporation Sole, 93 Dickinson L. Rev. 23, 27 (1988). The common law corporation sole is the forbear of the statutory corporation sole. The corporation sole–whether at common law or by statute–is the legal recognition of an office as having the characteristics of a corporation. See In re Moore’s Estate, 223 P.2d 393 (Or. 1950) (relying upon Blackstone’s Commentaries in noting that the king is a corporation sole at common law).
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. In this sense the king is a sole corporation; so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar.
I Blackstone’s Commentaries on the Laws of England 457 (1765-1769). Blackstone explained that the parish corporation sole was a particularly propitious legal form.
[T]he necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.
Id. at 457-58. “Every diocesan bishop, every rector of a parish, is a corporation sole, and can acquire and hold land (and now also personal property) even during the vacancy of the see* or living, for the benefit of his successors, and can bind his successors by his lawful conveyances and contracts.” Black’s Law Dictionary 366 (8th ed. 1999) (quoting Edward Jenks, The Book of English Law 118-19 (P.B. Fairest ed., 6th ed. 1967).
Many states have adopted the common law of England through the “rules of decision” provision in its constitution. See, e.g., Or. Const. art. XVIII § 7. The intent behind this provision was to adopt the common law of England “as it existed, modified and amended by English statutes passed prior to the Revolution.” Peery v. Fletcher, 182 P. 143, 146-47 (Or. 1919).
We have held that by force of our constitution and statutes, § 7, Art. XVIII, Oregon Const.; Laws of Oregon, 1843-1849, p. 100, the common law of England, modified and amended by English statutes, as it existed at the time of the American Revolution, was adopted and is in force in this state, as far as it was general and not local in its nature, was applicable to the conditions of the people, and was not incompatible with the nature of our political institutions, or in conflict with the constitution and laws of the United States or of this state.
In re Moore’s Estate, 223 P.2d 393, 396 (Or. 1950) (citing cases). Such rules of decision provisions arguably mean that many states could recognize a common law corporation sole because English common law recognized both lay and religious corporations sole. I Blackstone’s Commentaries on the Laws of England 458 (1765-1769).
Florida has, because of its similar rules of decision provision adopting English common law, recognized the common law corporation sole.
Both our Constitution and our statutes provide means for the formation of corporations aggregate, but we find nothing in either Constitution or statutes which either expressly or impliedly repeals the ancient common-law institution of the “corporation sole.”
. . .
That the common-law corporation sole is, under our statute adopting the common law, the law in Florida today, seldom as it may be called into operation, there can be no doubt; and its application to this case is inescapable, and removes all doubt as to the capacity of the grantee and his successors to take the fee simple title. But whether we recognize the appellee, complainant in the court below, in his capacity as bishop, as a corporation sole or not, the analogy to the common law corporation sole is so complete as to bring him within the spirit and reason of the doctrine relating thereto, and vindicate our conclusion on the other grounds mentioned. . . .
Reid v. Barry, 112 So. 846, 859-60 (Fla. 1927); see also Willard v. Barry, 152 So. 411 (Fla. 1933); Hurley v. Werly, 203 So.2d 530 (Fla. Ct. App. 1967). Similarly, the U.S. Supreme Court held that Puerto Rico’s “rules of decision” act incorporating the laws of Puerto Rico which existed before it affiliated with the United States bound Puerto Rico to the “fundamental code of ancient Spanish law” known as the Partidas. The Partidas recognized that the institutions of the Catholic Church, by virtue of their ecclesiastical status alson, had “juristic personality” and the “general right to hold and acquire property in its corporate capacity” and, further, that:
As to England, the concept of the church as a corporation was worked out by the English canonists and fully recognized by the ordinary law courts before the end of the fourteenth century and Pollock and Maitland show that the English ecclesiastical law was practically similar to that of continental Europe in its recognition of the property rights of the church.
Municipality of Ponce, 210 U.S. at 743 (1908).
Many other states and the U.S. Supreme Court itself have recognized the religious corporation sole under common law, and they have recognized both diocesan common law corporations sole and parish common law corporations sole. The Arkansas Supreme Court, for example, acknowledge conveyances to the bishop and his successors and assigns as constituting conveyances to a common law corporation sole:
Under the common law, the existence of corporations sole was recognized and bishops were said to constitute corporations sole. A corporation sole consists of single person, the officeholder and his successors. It is recognized by law as a corporation in order to give it legal capacities and advantages unavailable to natural persons. This concept of corporation sole has been recognized as a part of the common law in other jurisdictions.
City of Little Rock v. Linn, 432 S.W.2d 455, 462 (Ark. 1968) (internal citations omitted). Accordingly, while the Court need not determine the civil legal status of the Parishes for them to be beneficiaries of the Archdiocesan trust, the civil status of common law corporation sole is available under Oregon law and supported by numerous other courts.
The following opinions recognize or partially recognize the ecclesiastical corporation sole at common law. See Reid v. Barry, 112 So. 846, 859-60 (Fla. 1927); Willard v. Barry, 152 So. 411 (Fla. 1933); Hurley v. Werly, 203 So.2d 530 (Fla. Ct. App. 1967); Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U.S. 296 (1908) (recognizing the common law diocesan corporation sole); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 45-45 (1815) (recognizing the common law parish corporation sole); City of Little Rock v. Linn, 432 S.W.2d 455, 462 (Ark. 1968); Roman Catholic Archbishop of San Francisco v. Shipman, 21 P. 830 (Cal. 1889) (Catholic bishop holding property in his individual capacity indistinguishable from holding it in his capacity as a common law corporation sole); Santillan v. Moses, 1 Cal. 92, 94, 1850 WL 595 (1850) (the “position [of the Catholic priest of Mission Dolores seems] more nearly analogous to that of a sole corporation in England, than to that of a naked agent, and power to sue is an inseparable incident to such corporation. (1 Blackstone Comm. 475, 476)” (England); Blair v. Odin, 3 Tex. 288, 1848 WL 3905 (1848) (Justice Webb, although not in the majority, observing that “the plaintiff sues as the Catholic bishop and chief pastor of the Roman Catholic church in Texas, as a corporation sole, holding the property for the use of the church.”); San Antonio v. Odin, 15 Tex. 539, 1855 WL 5079 (1855) (the conveyance to the churchman “conferred on the person designated as trustee the capacity to hold, and made him a corporation sole quoad [sacra]“); Rine v. Wagner, 113 N.W. 471 (Iowa 1917) (“bishop is for some purposes denominated a corporation sole”); McCloskey v. Doherty, 30 S.W. 649 (Ky. Ct. App. 1895) (conveyance to bishop “and his successors in office” constitutes conveyance to a corporation). See also Beckwith v. Rector, Wardens and Vestryment of St. Philip’s Parish, 69 Ga. 564, 1882 WL 3350 (1882); Weston v. Hunt, 2 Mass. 500, 1807 WL 692 (Mass. 1807) (recognizing Protestant pastors as corporations sole); Mannix v. Purcell, 19 N.E. 572 (Ohio 1888) (treating Catholic archbishop as a corporation sole without using the term and finding that parish property in which the archbishop and his successors held legal title is not part of his estate after he personally files assignment for the benefit of creditors).
Offices as, for example, the king and his successor, the bishop and his successors, the abbot and his successors, and the pastor and his successor.
3 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 474-82 (1923) (“The fact that the common lawyers were gaining a firm hold upon the conception of a corporation reacted, as Maitland has pointed out, upon those ecclesiastical corporations which had originally introduced these common lawyers to the idea of a persona ficta. The corporation is a person. The law knows only persons as the subjects of rights and the objects of gifts. We must drop our talk of gifts to saints and churches. It must be to a person that a conveyance of land is made; and, as the common law will not recognize the interest of one to whose use a conveyance is made, the conveyance must be made directly to a person, real or fictitious. Thus, if a conveyance is to be made to a rector it cannot be made, as of old, to the church, or the saint, or to God; it must be made to the man J.S. who is rector and his successors. But we do not mean to benefit J.S. personally; we mean to benefit the parson of the church of St. X., just as, if we convey land to the abbot and monks of such an abbey, we mean to benefit not the individuals but the house. If we are debarred from saying that we give the land to J.S. to the use of the church, it will appear to be a somewhat obvious alternative to say that J.S., the rector, is a corporation sole. The conveyance is then made to a person, and the church is benefited.”)