The Crown as Corporation
Frederic Maitland
1901

Law Quarterly Review 17 (1901) pp. 131-46.

The greatest of artificial persons, politically speaking, is the
State. But it depends on the legal institutions and forms of
every commonwealth whether and how far the State or its titular
head is officially treated as an artificial person. In England we
now say that the Crown is a corporation: it was certainly not so
when the king's peace died with him, and "every man that could
forthwith robbed another."(1*)

    I quote these words from Sir F. Pollock's First Book of
Jurisprudence. They may serve to attract a little interest to
that curious freak of English law, the corporation sole. In a
previous paper I have written something concerning its
history.(2*) I endeavoured to show that this strange conceit
originated in the sixteenth century and within the domain of what
we may call "church property law". It held out a hope, which
proved to be vain, that it would provide a permanent "subject" in
which could be reposed that fee simple of the parochial glebe
which had been slowly abstracted from the patron and was not
comfortable in those clouds to which Littleton had banished it.
Then, following in the steps of Sir William Markby, I ventured to
say that this corporation sole has shown itself to be no
"juristic person", but is either a natural man or a juristic
abortion. 
    If the corporation sole had never trespassed beyond the
ecclesiastical province in which it was native, it would nowadays
be very unimportant. Clearly it would have no future before it,
and the honour of writing its epitaph would hardly be worth the
trouble. Unfortunately, however, the thought occurred to Coke --
or perhaps in the first instance to some other lawyer of Coke's
day -- that the King of England ought to be brought into one
class with the parson: both were to be artificial persons and
both were to be corporations sole.
    Whether the State should be personified, or whether the
State, being really and naturally a person, can be personified,
these may be very interesting questions. What we see in England,
at least what we see if we look only at the surface, is, not that
the State is personified or that the State's personality is
openly acknowledged, but (I must borrow from one of Mr Gilbert's
operas) that the king is "parsonified". Since that feat was
performed, we have been, more or less explicitly, trying to
persuade ourselves that our law does not recognize the
personality or corporate character of the State or Nation or
Commonwealth, and has no need to do anything of the sort if only
it will admit that the king, or, yet worse, the Crown, is not
unlike a parson. 
    It would be long to tell the whole story of this
co-ordination of king and parson, for it would take us deep into
the legal and political thoughts of the Middle Ages. Only two or
three remarks can here be hazarded.(3*) The medieval king was
every inch a king, but just for this reason he was every inch a
man and you did not talk nonsense about him. You did not ascribe
to him immortality or ubiquity or such powers as no mortal can
wield. If you said that he was Christ's Vicar, you meant what you
said, and you might add that he would become the servant of the
devil if he declined towards tyranny. And there was little cause
for ascribing to him more than one capacity. Now and then it was
necessary to distinguish between lands that he held in right of
his crown and lands which had come to him in right of an
escheated barony or vacant bishopric. But in the main all his
lands were his lands, and we must be careful not to read a
trusteeship for the nation into our medieval documents. The
oft-repeated demand that the king should "live of his own"
implied this view of the situation. I do not mean that this was
at any time a complete view. We may, for example, find the
lawyers of Edward II's day catching up a notion that the
canonists had propagated, declaring that the king's crown is
always under age, and so co-ordinating the corona with the
ecclesia.(4*) But English lawyers were not good at work of this
kind; they liked their persons to be real, and what we have seen
of the parochial glebe has shown us that even the church
(ecclesia particularis) was not for them a person.(5*) As to the
king, in all the Year Books I have seen very little said of him
that was not meant to be strictly and literally true of a man, of
an Edward or a Henry. 
    Then, on the other hand, medieval thought conceived the
nation as a community and pictured it as a body of which the king
was the head. It resembled those smaller bodies which it
comprised and of which it was in some sort composed. What we
should regard as the contrast between State and Corporation was
hardly visible. The "commune of the realm" differed rather in
size and power than in essence from the commune of a county or
the commune of a borough. And as the comitatus or county took
visible form in the comitatus or county court, so the realm took
visible form in a parliament. "Every one", said Thorpe C.J. in
1365, "is bound to know at once what is done in Parliament, for
Parliament represents the body of the whole realm."(6*) For a
time it seems very possible, as we read the Year Books, that so
soon as lawyers begin to argue about the nature of corporations
or bodies politic and clearly to sever the Borough, for example,
from the sum of burgesses, they will definitely grasp and
formulate the very sound thought that the realm is "a corporation
aggregate of many". In 1522 Fineux C.J. after telling how some
corporations are made by the king, others by the pope, others by
both king and pope, adds that there are corporations by the
common law, for, says he, "the parliament of the king and the
lords and the commons are a corporation."(7*) What is still
lacking is the admission that the corporate realm, besides being
the wielder of public power, may also be the "subject" of private
rights, the owner of lands and chattels. And this is the step
that we have never yet formally taken.(8*)
    The portrait that Henry VIII painted of the body politic of
which he was the sovereign head will not be forgotten:(9*)

    Where by divers sundry old authentic histories and chronicles
it is manifestly declared and expressed that this realm of
England is an Empire, and so hath been accepted in the world,
governed by one supreme Head and King, having the dignity and
royal estate of the Imperial Crown of the same, unto whom a Body
Politick, compact of all sorts and degrees of people and by names
of Spirituality and Temporality been bounden, and owen to bear,
next to God, a natural and humble obedience.... 

    It is stately stuff into which old thoughts and new are
woven. "The body spiritual" is henceforth to be conceived as
"part of the said body politick" which culminates in King Henry.
The medieval dualism of Church and State is at length transcended
by the majestic lord who broke the bonds of Rome. The
frontispiece of the Leviathan is already before our eyes. But, as
for Hobbes, so also for King Henry, the personality of the
corporate body is concentrated in and absorbed by the personality
of its monarchical head. His reign was not the time when the
king's lands could be severed from the nation's lands, the king's
wealth from the common wealth, or even the king's power from the
power of the State. The idea of a corporation sole which was
being prepared in the ecclesiastical sphere might do good service
here. Were not all Englishmen incorporated in King Henry? Were
not his acts and deeds the acts and deeds of that body politic
which was both Realm and Church? 
    A certain amount of disputation there was sure to be over
land acquired by the king in divers ways. Edward VI, not being
yet of the age of twenty-one years, purported to alienate land
which formed part of the duchy of Lancaster. Did this act fall
within the doctrine that the king can convey while he is an
infant? Land had been conveyed to Henry VII "and the heirs male
of his body lawfully begotten". Did this give him an estate tail
or a fee simple conditional? Could the head of a body politic
beget heirs? A few cases of this kind came before the Court soon
after the middle of the sixteenth century. In Plowden's reports
of these cases we may find much curious argumentation about the
king's two "bodies", and I do not know where to look in the whole
series of our law books for so marvellous a display of
metaphysical -- or we might say metaphysiological --
nonsense.(10*) Whether this sort of talk was really new about the
year 1550, or whether it had gone unreported until Plowden arose,
it were not easy to say; but the Year Books have not prepared us
for it. Two sentences may be enough to illustrate what I mean: 

    So that he [the king] has a body natural adorned and invested
with the estate and dignity royal, and he has not a body natural
distinct and divided by itself from the office and dignity royal,
but a body natural and a body politic together indivisible, and
these two bodies are incorporated in one person and make one body
and not divers, that is, the body corporate in the body natural
et e contra the body natural in the body corporate. So that the
body natural by the conjunction of the body politic to it (which
body politic contains the office, government and majesty royal)
is magnified and by the said consolidation hath in it the body
politic.(11*)

    "Which faith", we are inclined to add, "except every man keep
whole and undefiled, without doubt he shall perish
everlastingly." However, a gleam of light seems sometimes to
penetrate the darkness. The thought that in one of his two
capacities the king is only the "head" of a corporation has not
been wholly suppressed. 

    The king has two capacities, for he has two bodies, the one
whereof is a body natural... the other is a body politic, and the
members thereof are his subjects, and he and his subjects
together compose the corporation, as Southcote said, and he is
incorporated with them and they with him, and he is the head and
they are the members, and he has the sole government of
them.(12*)

    Again, in that strange debate occasioned by the too sudden
death of Sir James Hales, Brown J. says that suicide is an
offence not only against God and Nature, but against the King,
for "he, being the Head, has lost one of his mystical
members".(13*) But, for reasons that lie for the more part
outside the history of law, this thought fell into the
background. The king was left with "two bodies"; one of them was
natural, the other non-natural. Of this last body we can say
little; but it is "politic", whatever "politic" may mean. 
    Meanwhile the concept of a corporation sole was being
fashioned in order to explain, if this were possible, the
parson's relation to the glebe. Then came Coke and in his
masterful fashion classified Persons for the coming ages. They
are natural or artificial. Kings and parsons are artificial
persons, corporations sole, created not by God but by the policy
of man.(14*)
    Abortive as I think the attempt to bring the parson into line
with corporations aggregate -- abortive, for the freehold of the
glebe persists in falling into abeyance whenever a parson dies --
the attempt to play the same trick with the king seems to me
still more abortive and infinitely more mischievous. In the first
place, the theory is never logically formulated even by those who
are its inventors. We are taught that the king is two "persons",
only to be taught that though he has "two bodies" and "two
capacities" he "hath but one person".(15*) Any real and
consistent severance of the two personalities would naturally
have led to "the damnable and damned opinion", productive of
"execrable and detestable consequences", that allegiance is due
to the corporation sole and not to the mortal man.(16*) In the
second place, we are plunged into talk about kings who do not
die, who are never under age, who are ubiquitous, who do no wrong
and (says Blackstone(17*)) think no wrong; and such talk has not
been innocuous. Readers of Kinglake's Crimea will not have
forgotten the instructive and amusing account of "the two kings"
who shared between them control of the British army: "the
personal king" and "his constitutional rival". But in the third
place, the theory of the two kings or two persons stubbornly
refuses to do any real work in the case of jurisprudence. 
    We might have thought that it would at least have led to a
separation of the land that the king held as king from the land
that he held as man, and to a legal severance of the money that
was in the Exchequer from the money that was in the king's
pocket. It did nothing of the sort. All had to be done by
statute, and very slowly and clumsily it was done. After the
king's lands had been made inalienable, George III had to go to
Parliament for permission to hold some land as a man and not as a
king, for he had been denied rights that were not denied to "any
of His Majesty's subjects".(18*) A deal of legislation, extending
into Queen Victoria's reign, has been required in order to secure
"private estates" for the king. "Whereas it is doubtful", says an
Act of 1862.(19*) "And whereas it may be doubtful", says an Act
of 1873.(20*) Many things may be doubtful if we try to make two
persons of one man, or to provide one person with two bodies. 
    The purely natural way in which the king was regarded in the
Middle Ages is well illustrated by the terrible consequences of
what we now call a demise of the Crown, but what seemed to our
ancestors the death of a man who had delegated many of his powers
to judges and others. At the delegator's death the delegation
ceased. All litigation not only came to a stop but had to be
begun over again. We might have thought that the introduction of
phrases which gave the king an immortal as well as a mortal body
would have transformed this part of the law. But no. The
consequences of the old principle had to be picked off one after
another by statute.(21*) At the beginning of Queen Victoria's
reign it was discovered that "great inconvenience had arisen on
occasion of the demise of the Crown from the necessity of
renewing all military commissions under the royal sign
manual".(22*) When on a demise of the Crown we see all the wheels
of the State stopping or even running backwards, it seems an idle
jest to say hat the king never dies. 
    But the worst of it is that we are compelled to introduce
into our legal thinking a person whose personality our law does
not formally or explicitly recognize. We cannot get on without
the State, or the Nation, or the Commonwealth, or the Public, or
some similar entity, and yet that is what we are professing to
do. In the days when Queen Elizabeth was our Prince -- more often
Prince than Princess -- her secretary might write in Latin De
republica Anglorum, and in English Of the Commonwealth of
England: Prince and Republic were not yet incompatible. A little
later Guy Fawkes and others, so said the Statute Book, had
attempted the destruction of His Majesty and "the overthrow of
the whole State and Commonwealth".(23*) In 1623 the Exchequer
Chamber could speak of the inconvenience that "remote
limitations" had introduced "in the republic".(24*) But the great
struggle that followed had the effect of depriving us of two
useful words. "Republic" and "Commonwealth" implied kinglessness
and therefore treason. As to "the State", it was a late comer --
but little known until after 1600 -- and though it might govern
political thought, and on rare occasions make its way into the
preamble of a statute, it was slow to find a home in English
law-books. There is wonderfully little of the State in
Blackstone's Commentaries.(25*) It is true that "The people"
exists, and "the liberties of the People" must be set over
against "the prerogatives of the King"; but just because the King
is no part of the People, the People cannot be the State or
Commonwealth. 
    But "the Publick" might be useful. And those who watch the
doings of this Publick in the Statute Book of the eighteenth
century may feel inched to say that it has dropped a first
syllable. After the rebellion of 1715 an Act of Parliament
declared that the estates of certain traitors were to be vested
in the king "to the use of the Publick".(26*) Whether this is the
first appearance of "the Publick" as cestui que trust of a part
of those lands of which the king is owner I do not know; but it
is an early example. Then we come upon an amusing little story
which illustrates the curious qualities of our royal corporation
sole. One of the attainted traitors was Lord Derwentwater, and
the tenants of his barony of Langley had been accustomed to pay a
fine when their lord died: such a custom was, I believe, commoner
elsewhere than in England. But, says an Act of 1738, the said
premises "being vested in His Majesty, his heirs and successors
in his politick capacity, which in consideration of law never
dies, it may create a doubt whether the tenants of the said
estates ought... to pay such fines... on the death of His present
Majesty (whom God long preserve for the benefit of his People) or
On the death of any future King or Queen." So the tenants are to
pay as they would have paid "in case such King or Queen so dying
was considered as a private person only and not in his or her
politick capacity".(27*) Thus that artificial person, the king in
his politick capacity, who is a trustee for the Publick, must be
deemed to die now and then for the benefit of cestui que trust. 
    But it was of "the Publick" that we were speaking, and I
believe that "the Publick" first becomes prominent in connexion
with the National Debt. Though much might be done for us by a
slightly denaturalized king, he could not do all that was
requisite. Some proceedings of one of his predecessors, who
closed the Exchequer and ruined the goldsmiths, had made our king
no good borrower. So the Publick had to take his place. The money
might be "advanced to His Majesty", but the Publick had to owe
it. This idea could not be kept off the statute book. "Whereas,"
said an Act of 1786, "the Publick stands indebted to" the East
India Company in a sum of four millions and more.(28*)
    What is the Publick which owes the National Debt? We try to
evade that question. We try to think of that debt not as a debt
owed by a person, but as a sum charged upon a pledged or
mortgaged thing, upon the Consolidated Fund. This is natural, for
we may, if we will, trace the beginnings of a national debt back
to days when a king borrows money and charges the repayment of it
upon a specific tax; perhaps he will even appoint his creditor to
collect that tax, and so enable him to repay himself. Then there
was the long transitional stage in which annuities were charged
on the Aggregate Fund, the General Fund, the South Sea Fund, and
so forth. And now we have the Consolidated Fund; but even the
most licentious "objectification" (or, as Dr James Ward says,
"reification") can hardly make that Fund "a thing" for
jurisprudence. On the one hand, we do not conceive that the
holders of Consols would have the slightest right to complain if
the present taxes were swept away and new taxes invented, and, on
the other hand, we conceive that if the present taxes will not
suffice to pay the interest of the debt more taxes must be
imposed. Then we speak of "the security of an Act of Parliament",
as if the Act were a profit-bearing thing that could be pledged.
Or we introduce "the Government" as a debtor. But what, we may
ask, is this Government? Surely not the group of Ministers, not
the Government which can be contrasted with Parliament. I am
happy to think that no words of mine can affect the price of Bank
Annuities, but it seems to me that the national debt is not a
"secured debt" in any other than that loose sense in which we
speak of "personal security", and that the creator has nothing to
trust to but the honesty and solvency of that honest and solvent
community of which the King is the head and "Government" and
Parliament are organs. 
    One of our subterfuges has been that of making the king a
trustee (vel quasi) for unincorporated groups. Another of our
subterfuges has been that of slowly substituting "the Crown" for
King or Queen. Now the use which has been made in different ages
of the crown -- a chattel now lying in the Tower and partaking
(so it is said(29*)) of the nature of an heirloom -- might be
made the matter of a long essay. I believe, however, that an
habitual and perfectly unambiguous personification of the Crown
-- in particular, the attribution of acts to the Crown -- is much
more modern than most people would believe. It seems to me that
in fully half the cases in which Sir William Anson writes
"Crown", Blackstone would have written "King". In strictness,
however, "the Crown" is not, I take it, among the persons known
to our law, unless it is merely another name for the King. The
Crown, by that name, never sues, never prosecutes, never issues
writs or letters patent. On the face of formal records the King
or Queen does it all. I would not, if I could, stop the process
which is making "the Crown" one of the names of a certain
organized community; but in the meantime that term is being used
in three or four different, though closely related, senses. "We
all know that the Crown is an abstraction", said Lord
Penzance.(30*) I do not feel quite sure of knowing even
this.(31*)
    The suggestion that "the Crown" is very often a suppressed or
partially recognized corporation aggregate is forced upon us so
soon as we begin to attend with care to the language which is
used by judges when they are freely reasoning about modern
matters and are not feeling the pressure of old theories. Let us
listen, for example, to Blackburn J., when in a famous opinion he
was explaining why it is that the Postmaster-General or the
captain of a man-of-war cannot be made to answer in a civil
action for the negligence of his subordinates. "These cases were
decided upon the ground that the government was the principal and
the defendant merely the servant... All that is decided by this
class of cases is that the liability of a servant of the public
is no greater than that of the servant of any other principal,
though the recourse against the principal, the public, cannot be
by an action."(32*) So here the Government and the Public are
identified, or else the one is an organ or agent of the other.
But the Postmaster-General or the captain of a man-of-war is
assuredly a servant of the Crown, and yet he does not serve two
masters. A statute of 1887 tells us that "the expressions,
permanent civil service of the State", permanent civil service of
Her Majesty "and, permanent civil service of the Crown" are
hereby declared to have the same meaning".(33*) Now as it is
evident that King Edward is not (though Louis XIV may have been)
the State, we seem to have statutory authority for holding that
the State is "His Majesty". The way out of this mess, for mess it
is, lies in a perception of the fact, for fact it is, that our
sovereign lord is not a "corporation sole", but is the head of a
complex and highly organized "corporation aggregate of many" --
of very many. I see no great harm in calling this corporation a
Crown. But a better word has lately returned to the statute book.
That word is Commonwealth.
    Even if the king would have served as a satisfactory debtor
for the national debt, some new questions would have been raised
in the course of that process which has been called the expansion
of England; for colonies came into being which had public debts
of their own. At this point it is well for us to remember that
three colonies which were exceptionally important on account of
their antiquity and activity, namely Massachusetts, Rhode Island,
and Connecticut, were corporations duly created by charter with a
sufficiency of operative and inoperative words. Also we may
notice. that the king was no more a corporator of Rhode Island
than he was a corporator of the city of Norwich or of the East
India Company, and that the Governor of Connecticut was as little
a deputy of the king as was the Governor of the Bank of England.
But even where there was a royal governor, and where there was no
solemnly created corporation, there was a "subject" capable of
borrowing money and contracting debts. At least as early as 1709,
and I know not how much earlier, bills of credit were being
emitted which ran in this form: 

This indented bill of shillings due from the Colony of New York
to the possessor thereof shall be in value equal to money and
shall be accepted accordingly by the Treasurer of this Colony for
the time being in all public payments and for any fund at any
time in the Treasury. Dated, New York the first of November,
1709, by order of the Lieutenant Governor, Council and General
Assembly of the said Colony.(34*)

    In 1714 the Governor, Council and General Assembly of New
York passed a long Act "for the paying and discharging the
several debts and sums of money claimed as debts of this Colony".
A preamble stated that some of the debts of the Colony had not
been paid because the Governors had misapplied and extravagantly
expended "the revenue given by the loyal subjects aforesaid to
Her Majesty and Her Royal Predecessors, Kings and Queens of
England, sufficient for the honourable as well as necessary
support of their Government here." "This Colony", the preamble
added, "in strict justice is in no manner of way obliged to pay
many of the said claims"; however, in order "to restore the
Publick Credit", they were to be paid.(35*) Here we have a Colony
which can be bound even in strict justice to pay money. What the
great colonies did the small colonies did also. In 1697 an Act
was passed at Montserrat "for raising a Levy or Tax for defraying
the Publick Debts of this His Majesty's Island". 
    The Colonial Assemblies imitated the Parliament of England.
They voted supplies to "His Majesty"; but they also appropriated
those supplies. In Colonial Acts coming from what we may call an
ancient date and from places which still form parts of the
British Empire, we may see a good deal of care taken that
whatever is given to the king shall be marked with a trust. For
instance, in the Bermudas, when in I698 a penalty is imposed,
half of it is given to the informer, "and the remainder to His
Majesty, His Heirs and Successors, to be imployed for and towards
the support of the Government of these Islands and the contingent
charges thereof".(36*) If "the old house and kitchen belonging to
their Majesties [William and Mary] and formerly inhabited by the
Governors of these Islands" is to be sold, then the price is to
be paid "into the Publick Stock or Revenue for the Publick Uses
of these Islands and the same to be paid out by Order of the
Governor, Council and a Committee of Assembly".(37*) It would, I
believe, be found that in some colonies in which there was no
ancestral tradition of republicanism, the Assemblies were not far
behind the House of Commons in controlling the expenditure of
whatever money was voted to the king. In 1753 the Assembly of
Jamaica resolved "that it is the inherent and undoubted right of
the Representatives of the People to raise and apply monies for
the services and exigencies of government and to appoint such
person or persons for the receiving and issuing thereof as they
shall think proper, which right this House hath exerted and will
always exert in such manner as they shall judge most conducive to
the service of His Majesty and the interest of his People." In
many or most of the colonies the treasurer was appointed, not by
the Governor but by an Act of Assembly; sometimes he was
appointed by a mere resolution of the House of Representatives.
In the matter of finance, "responsible government" (as we now
call it) or "a tendency of the legislature to encroach upon the
proper actions of the executive" (as some modern Americans call
it) is no new thing in an English colony.(38*)
    We deny nowadays that a Colony is a corporation. The three
unquestionably incorporated colonies have gone their own way and
are forgotten of lawyers. James L.J. once said that it seemed to
him an abuse of language to speak of the Governor and Government
of New Zealand as a corporation.(39*) So be it, and I should not
wish to see a "Governor" or a "Government" incorporated. But can
we -- do we really and not merely in words -- avoid an admission
that the Colony of New Zealand is a person? In the case that was
before the Court a contract for the conveyance of emigrants had
professedly been made between "Her Majesty the Queen for and on
behalf of the Colony of New Zealand" of the first part, Mr
Featherston, "the agent-general in England for the Government of
New Zealand", of the second part, and Sloman & Co. of the third
part. Now when in a legal document we see those words "for and on
behalf of" we generally expect that they will be followed by the
name of a person; and I cannot help thinking that they were so
followed in this case. I gather that some of the colonies have
abandoned the policy of compelling those who have aught against
them to pursue the ancient, if royal, road of a petition of
right. Perhaps we may not think wholly satisfactory the
Australian device of a "nominal defendant" appointed to resist an
action in which a claim is made "against the Colonial
Government", for there is no need for "nominal parties to actions
where real parties (such, for example, as a Colony or State) are
forthcoming.(40*) But it is a wholesome sight to see "the Crown"
sued(41*) and answering for its torts.(42*) If the field that
sends cases to the Judicial Committee is not narrowed, a good
many old superstitions will be put upon their trial. 
    In the British North America Act, 1867, there are courageous
words.(43*) "Canada shall be liable for the debts and liabilities
of each Province existing at the Union. Ontario and Quebec
conjointly shall be liable to Canada...The assets enumerated in
the fourth schedule... shall be the property of Ontario and
Quebec conjointly. Nova Scotia shall be liable to Canada... New
Brunswick shall be liable to Canada... The several Provinces
shall retain all their respective public property... New
Brunswick shall receive from Canada...The right of New Brunswick
to levy the lumber dues... No lands or property belonging to
Canada or any Province shall be liable to taxation...." This is
the language of statesmanship, of the statute book, and of daily
life. But then comes the lawyer with theories in his head, and
begins by placing a legal estate in what he calls the Crown or
Her Majesty. "In construing these enactments, it must always be
kept in view that wherever public land with its incidents is
described as 'the property of' or as 'belonging to' the Dominion
or a Province, these expressions merely import that the right to
its beneficial use, or to its proceeds, has been appropriated to
the Dominion or the Province, as the case may be, and is subject
to the control of its legislature, the land itself being vested
in the Crown."(44*) And so we have to distinguish the lands
vested in the Crown "for" or "in right of" Canada from the lands
vested in the Crown "for" or "in right of" Quebec or Ontario or
British Columbia, or between lands "vested in the Crown as
represented by the Dominion" and lands "vested in the Crown as
represented by a Province." Apparently "Canada" or "Nova Scotia"
is person enough to be the Crown's cestui que trust and at the
same time the Crown's representative, but is not person enough to
hold a legal estate. It is a funny jumble, which becomes funnier
still if we insist that the Crown is a legal fiction.
    "Although the Secretary of State [for India] is a body
corporate, or in the same position as a body corporate, for the
purpose of contracts, and of suing and being sued, yet he is not
a body corporate for the purpose of holding property. Such
property as formerly vested, or would have vested, in the East
India Company now vests in the Crown."(45*) So we sue Person No.
1, who has not and cannot have any property, in order that we may
get at a certain part of the property that is owned by Person No.
2. It is a strange result; but not perhaps one at which we ought
to stand amazed, if we really believe that both these Persons,
however august, are fictitious: fictitious like the common
vouchee and the casual ejector.(46*)
    We are not surprised when we read the following passage in an
American treatise: 

    Each one of the United States in its organized political
capacity, although it is not in the proper use of the term a
corporation, yet it has many of the essential faculties of a
corporation, a distinct name, indefinite succession, private
rights, power to sue, and the like. Corporations, however, as the
term is used in our jurisprudence, do not include States, but
only derivative creations, owing their existence and powers to
the State, acting through its legislative department. Like
corporations, however, a State, as it can make contracts and
suffer wrongs, so it may, for this reason and without express
provision, maintain in its corporate name actions to enforce its
rights and redress its injuries.(47*)

    There are some phrases in this passage which imply a
disputable theory. However, the main point is that the American
State is, to say the least, very like a corporation: it has
private rights, power to sue and the like. This seems to me the
result to which English law would naturally have come, had not
that foolish parson led it astray. There is nothing in this idea
that is incompatible with hereditary kingship. "The king and his
subjects together compose the corporation, and he is incorporated
with them and they with him, and he is the head and they are the
members."(48*) There is no cause for despair when "the people of
New South Wales, Victoria, South Australia, Queensland and
Tasmania, humbly relying on the blessing of Almighty God, have
agreed to unite in one indissoluble Federal Commonwealth under
the Crown of the United Kingdom of Great Britain and Ireland". We
may miss the old words that were used of Connecticut and Rhode
Island: "one body corporate and politic in fact and name"; but
"united in a Federal Commonwealth under the name of the
Commonwealth of Australia" seems amply to fill their place.(49*)
And a body politic may be a member of another body politic.
    But we must return from an expanding Empire, or rather
Commonwealth, to that thin little thought the corporation sole,
and we may inquire whether it has struck root, whether it has
flourished, whether it is doing us any good.
    Were there at the beginning of the nineteenth century more
than two corporations sole that were not ecclesiastical? Coke had
coupled the Chamberlain of the City of London with the King.(50*)
But the class of corporations sole was slow to grow, and this
seems to me a sure proof that the idea was sterile and
unprofitable. It is but too likely that I have missed some
instances,(51*) but provisionally I will claim the third place in
the list for the Postmaster-General. In 1840 the
Postmaster-General and his successors "is and are" made "a body
corporate" for the purpose of holding and taking conveyances and
leases of lands and hereditaments for the service of the Post
Office. From the Act that effected this incorporation we may
learn that the Postmaster as a mere individual had been holding
land in trust for the Crown.(52*) One of the main reasons, I take
it, for erecting some new corporations sole was that our "Crown",
being more or less identifiable with the King, it was difficult
to make the Crown a leaseholder or copyholder in a direct and
simple fashion. The Treasurer of Public Charities was made a
corporation sole in 1853.(53*) Then in 1855 the Secretary of
State intrusted with the seals of the War Department was enabled
to hold land as a corporation sole.(54*) Perhaps if there were a
Lord High Admiral he would be a corporation sole vel quasi.(55*)
The Solicitor to the Treasury was made a corporation sole in
1876, and this corporation sole can hold "real and personal
property of every description"(56*) All this -- and there is more
to be said of Boards such as the Board of Trade and the Board of
Agriculture and so forth -- seems to me to be the outcome of an
awkward endeavour to ignore the personality of the greatest body
corporate and politic that has ever existed. And after all, we
must ask whether this device does its work. The throne, it is
true, is never vacant, for the kingship is entailed and
inherited. But we have yet to be taught that the Solicitor to the
Treasury never dies. When a Postmaster-General dies, what becomes
of the freehold of countless post offices? If we pursue the
ecclesiastical analogy -- and it is the only analogy -- we must
let the freehold fall into abeyance, for, when all is said, our
corporation sole is a man who dies.(57*) Suppose that a prisoner
is indicted for stealing a letter being the proper goods of "the
Postmaster-General", and suppose that he objects that at the time
in question there was no Postmaster-General, he can be silenced;
but this is so, not because the Postmaster is a corporation sole,
but because a statute seems to have said with sufficient
clearness that the indictment is good.(58*) So long as the State
is not seen to be a person, we must either make an unwarrantably
free use of the King's name, or else we must for ever be
laboriously stopping holes through which a criminal might glide.
A critical question would be whether the man who is Postmaster
for the time being could be indicted for stealing the goods of
the Postmaster,(59*) or whether the Solicitor to the Treasury
could sue the man who happened to be the Treasury's Solicitor.
Not until some such questions have been answered in the
affirmative have we any reason for saying that the corporation
sole is one person and the natural man another.(60*)
    I am aware of only one instance in which a general law, as
distinguished from privilegia for this or that officer of the
central government, has conferred the quality of
sole-corporateness or corporate-soleness upon a class of
office-holders. The exceptional case is that of the clerks of the
peace.(61*) This arrangement, made in 1858, was convenient
because we did not and do not regard the justices of the peace as
a corporation. But then so soon as the affairs of the counties
were placed upon a modern footing by the Act of 1888, a
corporation aggregate took the place of the corporation sole, and
what had been vested in the clerk of the peace became vested in
the county council. Such is the destined fate of all corporations
sole.(62*)

NOTES:

1. Pollock, First Book of Jurisprudence, p. 113.

2. 16 Law Quarterly Review (1900), pp. 335-354.

3. The theme of this paper was suggested by Dr Gierke's
Genossenschafsrecht, a portion of which I have lately published
in English: Political Theories of the Middle Ages. (Cambridge,
1900).

4. Placit. Abbrev. p. 339 (15 Edw. II, Northampton).

5. 16 Law Quarterly Review (1900), p. 344.

6. Y.B. 39 Edw. III, f. 7a.

7. Y.B. 14 hen. VIII, f. 3 (Mich. pl. 2).

8. The mistake, so I think, of John Allen's memorable treatise on
the Royal Prerogative (1830; new ed. 1849) consists in the
supposition that already in very old days the Folk could be and
was clearly conceived as a person: a single "subject" of
ownership and other rights.

9. 24 Hen. VIII, c. 12 (For the Restraint of Appeals).

10. Case of the Duchy of Lancaster (1561), Plowden, 212; Willion
v. Berkley (1559), Ibid. 223; Sir Thomas Wroth's Case (1573),
Ibid. 452. 

11. Plowden, p. 213.

12. Plowden, p. 234.

13. Ibid. 261.

14. Co. Lit. 2a, 250a; Sutton's Hospital Case (1612), 10 Rep.
26b.

15. Calvin's Case (1608), 7 Rep. 10a.

16. Calvin's Case (1608), 7 Rep. 11a, b.

17. 1 Comm. 246.

18. 39 & 40 Geo. III, c. 88.

19. 25 & 26 Vict. 37.

20. 36 & 37 Vict. c. 61.

21. 1 Edw. VI, begins the process.

22. 7 Will. IV & 1 Vict. c. 31.

23. 3 Jac. I, c. 2, pr.

24. Child v. Baylie, Palm. 335, 336.

25. Such phrases as "when the danger of the state is great" (1,
135) are occasionally used.

26. 1 Geo. I, stat. 2, c. 50. We must distinguish this Public
from the Public (quilibet de populo) to whom a highway is
dedicated.

27. 11 Geo. II, c. 30, pr. and s. 1.

28. 26 Geo. III, c. 62.

29. Co. Lit. 18b.

30. Dixon v. London Small Arms Co. (1876), L.R. 1 App. Cas. 632,
at 652.

31. The Acts which enable the king to hold "private estates" are
officially indexed under "Crown Private Estates". It is hard to
defend this use of the word unless the Crown is to give garden
parties.

32. Mersey Docks Trustees v. Gibbs (1866), L.R. 1 H.L. 93, 111.

33. Pensions (Colonial Service) Act, 1887, 50 & 51 Vict. c. 13,
s. 8.

34. Act of 12th Nov. 1709 (8 Anne).

35. Act of 1714 (13 Anne).

36. Acto of 11th Nov. 1698. Acts of the British Parliament (e.g.
6 Geo II, c. 13, s. 3) sometimes give a penalty to the use of the
king "to be applied for the support of the government of the
colony or plantation where the same shall be recovered.". See
Palfrey, New England, vol. IV, p. 302. Apparently it was over a
clause of this kind that James Otis first came to the front in
Massachusetts.

37. Act of 29th Sept. 1693.

38. See Mr E.B. Green's very interesting book on the Provincial
Governor, Harvard Historical Series; especially pp. 177ff. The
Jamaican resolution stands on p. 172.

39. Sloman v. Government of New Zealand (1876), 1 C.P.D. 563,
565-566.

40. Farnell v. Bowman (1887), 12 App. Cas. 643 (N.S. Wales).

41. Hettihewage Siman Appu v. The Queen's Advocate (1884), 9.
App. Cas. 571 (Ceylon).

42. A.-G. of the Straits Settlement v. Wemyss (1888), 13 App.
Cas. 192 (Penag).

43. 30 Vict. c. 3, ss. 110-125.

44. St. Catherine's Milling and Lumber Co. v. The Queen (1888),
14 App. Cas. 46. esp. p. 56; A.-G. of Brit. Columbiav. A.-G. of
Canada, 14 App. Cas. 295; A.-G. of Ontario v. Mercer (1883), 8
App. Cas. 767; A.-G. of Canada v. As.-G. of Ontario, Quebec, Nova
Scotia [1898] A.C. 700.

45. Ilbert, Government of India (3rd. ed. 1915), p. 196.

46. In Kinlock v. Secretary of State for India in Council (1880),
15 Ch. D. 1, 8 James L.J. said that "there really is in point of
law, no such person or body politic whatever as the Secretary of
State for India in Council." Apparently in his view this is only
a name by which "the Government of India" is to sue and be sued.
But this only has the effect of making "the Government of India"
a person, real or fictious. [The report of the final apeal to the
House of Lords (1882), 7 App. Cas. 619, adds nothing on this
head.]

47. Dillon, Municipal Corporations, ed. 4. section 31.

48. Willion v. Berkley (1559), Plowden, p. 234.

49. 63 & 64 Vict. c. 12.

50. Fulwood's Case (1591), 4 Rep. 64b.

51. The Master of the Rolls (who, however, as a matter of
history, was not quite free from an ecclesiatical taint) must
have been not unlike a corporation sole, for he held land in
right of his office. 12 Car. II, c. 36; 20 Geo. II, c. 34 (Sir J.
Jekyll granted leases to a trustee for himself).

52. 3 & 4 Vict. c. 96, s. 67 [now 8 Ed. VII, c. 48, s. 45].

53. 16 & 17 Vict. c. 137, s. 47.

54. 18 & 19 Vict. c. 117, s. 2.

55. 27 & 28 Vict. C. 57, s. 9.

56. 39 & 40 Vict. c. 18, s. 1.

57. See 16 Law Quarterly Review, (1900), p. 352.

58. 7 Will. IV & 1 Vict. c. 36, s. 40 [now 8 Ed. VII, c. 48, s.
73; 5 & 6 Geo. V. c. 90, s. 9].

59. [The Indicments Act, 1915 (5 & 6 Geo. V, c. 90) Sched. 1, 5,
6, probably does not solve the difficulty.]

60. See 16 Law Quarterly Review (1900), p. 355.

61. 21 & 22 Vict. c. 92 [repealed by Statute Law Revision Act,
1892]. But this Act does not use the term corporation sole.

62. 51 & 52 Vict. c. 41, s. 64. We do not find it necessary to
use mysterious language about the coporateness of every public
accountant. But when such an accountant dies the balance to his
credit at the bank where the public account is kept is not "in
any manner subject to the control of his legal representative".
See 29 & 30 Vict. c. 39, s. 18.