by: Peter Kershaw, © 2004, All Rights Reserved
The corporation sole, or corporate sole, is legally defined:
All other corporations are known as "corporation aggregate":
Historical Origins & Development 5
The corporation is a product of ancient Roman civil law. By 250 B.C. Rome had perfected the corporation to include all of the legal attributes we are familiar with in corporations today. By 6 A.D. the corporation was codified into the first great body of Roman civil law, known as Corpus Juris Civilus.
Several centuries later, and particularly after the time that Emperor Constantine declared Christianity the official religion of the Roman Empire (323 A.D.), the Roman Church appropriated and used the corporation for ecclesiastical purposes and, in particular, holding church property. Among the first to do so were monks who held title to their monasteries through corporations. Such monasterial corporations usually had several officers functioning as a board of directors and were, therefore, called a "corporation aggregate."
Some years later, Archbishops were authorized by the Pope to organize corporations and appoint a bishop as head of said corporation, for the purpose of holding church property. The bishop, as the "sole officer" of said corporation, was referred to as a "corporation sole." He was authorized to act on his own authority, absent the control of a board of directors. The bishop often served as an overseer for multiple parishes or communities, in what are known as "dioceses."
When the bishop died, or was incapacitated, or was removed from office by the Pope or Archbishop, title to the property passed not to the bishop's heirs (although Catholic bishops were not permitted to marry, it was not uncommon that they had children), but to a successor corporate sole officer (usually another bishop). While the office of corporate sole held title to property, that property did not "belong" to the bishop personally. Rather, he held the property in trust for the church. In this sense, the bishop was very much like a trustee.
These ancient corporation soles were often formed under canon law (church law) and, therefore, absent the permission and jurisdiction of the State. Rather than seeking a charter or articles of incorporation from the State to organize a new corporation sole, the Catholic Archbishop had the authority of the Pope, under canon law, to charter new corporate soles and appoint an office-holder (bishop) to the new corporation sole.
As such, those old corporation soles were not "creatures of the State," as were all other corporations. Moreover, the State recognized and respected the church's authority to charter its own corporations, and did not interfere in the church's jurisdiction. Such was once the influence wielded by the all-powerful Roman Catholic Church. It was said that kings ruled nations, but the Pope ruled kings.
So significant was the power of the Roman Catholic Church throughout Europe that, for many centuries, no king could ascend to his throne unless the Pope was present for the coronation, either personally or by his emissary. Immense fortunes were often paid to the Catholic Church to induce the Pope's coronation blessing, by his personally laying the crown on the new king's head. The king, upon whose head the diadem had been laid by the Pope himself, could never be challenged. Such a king, having been crowned by the almighty "Vicar of Christ," was viewed by his people as ruling in the place of God, and by divine authority.
The use of the ecclesiastical corporation sole by Catholic bishops continued largely unabated for a number of centuries. However, things began to radically change in the sixteen-century, regarding the nature and legal attributes of the corporation sole. This was largely the result of an historic phenomenon known as "the Reformation." The Reformation spread like a wildfire throughout a number of European nations. However, for the purposes of this article, I will focus only on England and on the English king's colony, America.
The Church Of England had long been Roman Catholic, but that all changed when King Henry VIII separated the Church Of England from the Church Of Rome, by the Act of Supremacy, in 1534. This Act not only made the break from Rome, declaring that the Pope had no authority in England, it also declared that the King of England was the "lord sovereign head" of the Church Of England. The "divine right of popes" was exchanged for "the divine right of kings," and the Church-State was effectively replaced by a State-Church. It was also at this time that the Church Of England became Anglican (Episcopal).
Much of the Church Of England was reformed. Adoration of Mary (Mariolatry) and prayer to the saints was abolished as idolatrous. Their statues were declared "idols" and were removed from all church property. Worship of the elements of the eucharist was declared to be idolatry. Transubstantiation was deemed heresy. Reciting the rosary on rosary beads was deemed "vain pagan repetition." The Latin Mass was declared superstitious and was abolished in favor of an English worship service which emphasized the preaching of God's Word (in a language the people could understand).
As a means of controlling the people, and keeping them subservient to the Catholic hierarchy, the Roman Catholic Church had, for many centuries, prevented the people from knowing what the Word of God said, and reading it for themselves. The Reformation forever abolished this. The Word of God was translated into the common tongue and eagerly given to the people. The English Bible translator, William Tyndale, foretold that every plowboy would read the Scripture for himself.
But the reformation was also not as thorough-going as many had hoped for. Certain vestiges of Roman Catholicism remained, including the office of corporate sole. However, with the Act of Supremacy, and the king being declared the "lord sovereign head of the church," there also began to emerge a new understanding of who (or what) was head of the corporation sole. In this State-Church system the corporation sole was promptly converted into a creature of civil law. Bishops, rather than being emissaries of the Pope, were now agents of the king.
Since the Anglican Church Of England was (and is) a hierarchical church governed from the top down by bishops (episcopal meaning bishop rule), and since members in such a church have little if any say in the governance of their church, the office of the corporate sole was inherently consonant with the church structure in England.
However, attitudes in the American Colonies about church polity were altogether different. Rather than a top-down bishop-rule hierarchy, most Colonial American churches were governed bottom-up, usually by elders elected by the local congregation, and such elders were always accountable to those who had elected them. Accountability was the key to preventing the tyrannies of bishops endemic in both Catholicism and Anglicanism.
As the Rev. Cotton Mather put it: "Never entrust a man with more power than you are content for him to use; for use it he will." A great many of the Colonists had known first-hand the abuses of the English Bishopric, as exercised through the office of corporate sole. Star chamber abuses, "examinations" under torture, and widespread executions at the hands of the bishops, had become a major factor in "religious nonconformists" coming to America. Never again would lovers of religious liberty tolerate unchecked power.
The corporation sole did ultimately find its way to America by way of England. However, the corporation sole never gained recognition in the American Colonies as a canon law institution. In fact, its impossible to identify any specific historic example of the use of the canon law corporation sole in America, either before or after America gained independency, whether by Catholics or anyone else. Catholic scholars deny that the corporation sole, as used in America, has ever been anything other than a civil law entity.
According to the Catholic Encyclopedia:
Catholics were widely discriminated against in America, both before American independency, and for a number of years thereafter. As a result, their rights in church property were, during this long-period of discrimination, always in jeopardy. It took Catholics many years to ultimately secure their church property rights. As they were able to so, they sometimes reverted to what the Catholic Church had utilized in many other countries, the corporation sole. However, no American state was willing to acknowledge the office of corporation sole as a canon law entity. Those few state legislatures that did acknowledge the office of corporation sole did so by legislative act under civil law.
As for non-Catholic American Colonists, they too never organized any non-statutory canon law corporation soles. One likely reason they refused the use of the corporation sole is the fact that they vehemently opposed the notion of appointment of an Anglican Bishop over the American Colonial churches. As President John Adams noted, the attempted appointment of an American Bishop by the British Parliament was more responsible for America going to war with England than any other single factor.
Had the Church Of England become successful in the appointment of a Bishop in America, it would have in all likelihood, resulted in a claim that the Bishop held the office of corporate sole and, therefore, all title to church property in the American Colonies vested in him. Interestingly enough, some of the strongest opposition to the appointment of a Church Of England Bishop over the churches in America came from American Anglican pastors, a great many of whom had become patriots over the issue.
Not only was the corporation sole, as an ecclesiastical entity, never favored in its use in America (and perhaps even opposed, in the same way that the appointment of an Anglican Bishop was opposed), as has been quoted above: the conception of a corporation sole is passing out of American law. We would also note that Judge Thompson made that statement over one-hundred years ago.
Corporate sole proponents deny that the conception of the corporate sole is "passing out of American law." Because of their ignorance of both history and law, they fail to appreciate what Judge Thompson meant.
According to Sir William Blackstone, corporations in England were of two divisions, lay and ecclesiastical. Of the ecclesiastical variety, some were corporation sole, and some were corporation aggregate:
However, that which was true of the Church of England in Blackstone's day had no correlation to the church in Colonial America. In point of fact, the American Colonists were determined to take their churches much further in the cause of Reformation than had the Church of England. The very motto of the Pilgrims (and for many who came after them) had been, "Reformation without tarrying for any." Any vestige of Roman Catholicism, such as the office of corporate sole, as well as the bishop who filled the office, was viewed with suspicion, if not outright contempt.
The Law Today
Blackstone's Commentaries, as it applies to ecclesiastical corporations in old England, has even less to do with the church in America today. In point of fact, there is simply no correlation. According to the Catholic Encyclopedia:
As "private civic corporations" all incorporated churches, whether incorporated as sole or aggregate, receive their Articles Of Incorporation from their respective Secretary Of State, embossed with the State's official seal. For all intents and purposes, the corporation sole, as it is known in American jurisprudence, is little different from any other non-profit corporation.
Corporate sole proponents frequently make use the Roman Catholic Church as their shining example. They claim that the Roman Catholic Church is organized as a corporation sole. Indeed, many dioceses are (but fewer all the time); but what type of corporate soles are they? Are they anything like those that were formed centuries ago in England prior to the English Reformation under canon law, or are they something altogether different? In other words, were they chartered by the exclusive authority of the church under canon law, or did they come into existence by virtue of legislative-issued corporate charters or State statute-authorized articles of incorporation?
The record clearly shows that each and every corporation sole formed at any time in American history was organized under civil law (e.g. Dioceses of Spokane, Washington). In other words, they were not chartered by the old office of the corporate sole under canon law. The earliest corporate soles in America were formed by special legislative act in which the state legislatures issued corporate charters to various church sects and religious orders. However, after the turn of the twentieth century most of the corporation soles formed came into existence as a result of their filing articles of incorporation with their respective Secretary Of State's office. There is fundamentally no difference between how any corporation sole has ever been formed in America, and how any other non-profit religious corporation has ever been formed. They are all civil law corporations.
One of the alleged benefits of being a corporation sole (according to its promoters) is that it need not obtain 501c3 status. Yet most Catholic Churches, whether corporate sole or not, have applied for and obtained 501c3 status, or are operating under an IRS 501c3 "group exemption letter." As such, the Roman Catholic Church is actually a very poor example for the corporate sole promoters to be using.
The form of logic employed when they use the Roman Catholic Church as an example is referred to as "faulty appeal to authority." What then should we say of the example of the Church Of Satan, since it too is organized as a corporation sole? The fact that the Church Of Satan is a corporation sole may lend credence to satanists and witch covens for why they too should organize as a corporation sole; but does that lend credence for Christians to organize a church as a corporation sole?
In recent years, the corporation sole has experienced a considerable increase of new filings. Most all of it is due to zealous promotion by various tax protest groups and MLMs. Those few states which permit the formation of the corporation sole also make it surprisingly easy to do so, with nothing being required from the applicant to demonstrate that they actually fulfill the statutory prerequisites (e.g. being the bishop or head of a legitimate religious order). This ease of formation has undoubtedly contributed to the growth in its popularity, but has also left the door wide open for considerable abuse.
State statutes govern prerequisites for forming a corporation sole, legal obligations for maintaining the legal status of a corporation sole, who may incorporate, and a plethora of other rules and regulations that govern the corporate sole and maintaining a valid corporate status. Promoters of the corporate sole routinely claim that the following seventeen states legally recognize the corporate sole, and supposedly authorize anybody to form one themselves:
No state in America recognizes a corporation sole as a canon law entity. Rather, all corporate soles, if recognized at all, are only recognized as civil law entities. No mention is made anywhere in these statutes of canon law. Rather, all that is recognized is civil law.
Furthermore, only a few states even consider the corporation sole to be something unique, and worthy of a special classification in their state statutes. Of those states that do permit the formation of the corporation sole, most just lump the corporate sole in along with all other non-profit corporations, affording the corporate sole few, if any, special advantages over an ordinary non-profit corporation.
In point of fact, those few states which permit the formation of the corporation sole always classify them as a "nonprofit corporation" when they are registered with their Secretary Of State office by the Corporations Division.
The claim that seventeen states "legally recognize by statute" the corporation sole is inaccurate. Some of the above states may have once had a corporate sole statute, but have since repealed it. Where repealed, those states now treat the corporation sole as not having any unique status, whatsoever. If they recognize it, they treat it just like they do any other non-profit religious corporation.
The same can be said of incorporating a corporation sole in a state which legally authorizes them to be formed, and then operating that corporation sole in another state which doesn't permit their formation. Such states will indeed "legally recognize" them under the legal doctrine of "comity," but only if they register with the Secretary Of State as a "foreign corporation." Such is the case in Nebraska, or any other state which does not authorize the formation of the corporation sole. Failure to register as a foreign corporation can have serious legal consequences.
However, it should also be pointed out that those states which permit the formation of a corporation sole by the bishop or head of a church or denomination may also require that the church and/or bishop be located in that state:
In this statutory example, if you form a corporation sole in Washington state, but the Secretary Of State subsequently determines that you don't have a church physically present in Washington, nor are you as the corporate sole officer a resident of Washington, your corporation sole is in violation of the statute and could be declared a sham. Of the hundreds of corporation soles now registered in Washington state, it would appear that probably most of them are, in point of fact, shams.
Among those states that permit the formation of the corporation sole, some of them do nothing more than to include the corporation sole in a list of other religious non-profit corporate entities. As such, any corporate sole operated and/or organized in such a state is held to be a civil law state-created entity, and treated very much like any other non-profit religious corporation.
Of those states which permit the formation of the corporation sole, and which also classify the corporation sole in its own unique category, a thorough review of those states' statutes shows that there are far more similarities than there are differences between the corporation sole and the typical religious non-profit corporation. Any apparent differences are rather minor and of little legal or theological consequence.
Just like any other non-profit religious corporation, the corporation sole is viewed and treated by the states that legally recognize it as a "creature grounded in civil law" and, thus, a creature of the State. Even the powerful and wealthy Roman Catholic Church has never denied that this is the case, nor has the Catholic Church ever, at any time in America's history, stated that the corporation sole is a canon law entity.
The Corporation Sole As Viewed By Legal Scholars
Promoters of the corporation sole speak of it as though the corporate sole were a venerated institution, respected by the courts and legal scholars, and a well-settled area of law. However, those are not opinions universally shared among legal scholars.
Corporate sole proponents espouse that the corporate sole is an especially well-settled area of English Common Law which legal historians, legal scholars, and the courts well-understand, over which there has been complete agreement, over which there has been little if any dispute, and for which there is complete approval for its alleged virtues. However, nothing could be further from the truth.
Quoting James B. O'Hara in the Dickinson Law Review article, The Modern Corporation Sole (vol. 93, no. 1, Fall 1988):
Indeed, a number of legal scholars have had a great many derogatory things to say of the corporate sole. Apparently, the modern proponents of the corporate sole would have us disregard the opinions of genuine legal scholars, such as Sir Frederick Pollock and Frederick William Maitland in favor of their own amateurish and make-believe theories.
To counter the marketing sizzle of the internet peddlers of the corporation sole, we turn to the astute and highly respected legal scholar, Frederick Maitland, and his law review entitled, The Corporation Sole. Therein Maitland expresses some obvious contempt for the corporation sole when he states in his law review:
Contrary to the marketing hype of the peddlers of the corporation sole, the corporation sole has historically known an immense amount of legal controversy, ridicule, uncertainty, disagreement and debate; and at least among legal scholars there has been little (if any) approbation for the corporate sole. Indeed, the comments tend to be quite derogatory.
After a thorough legal and historical review, Maitland demonstrates his frustration and outright contempt for the legally unsettled nature of the corporation sole by concluding:
It is for good reason that you will rarely ever find Maitland's legal review of the corporation sole included in the information of any promoter of the corporation sole.
5. For a much more detailed understanding of these matters, as well as historic sources and references, see this author's book, In Caesar's Grip.
6. Code Of Alabama at § 10-4-1 Any bishop of a diocese consisting wholly or in part of territory in Alabama may become a corporation sole...
7. Alaska Statutes at § 10.40.060 Upon the filing of the articles of incorporation for record the person subscribing the articles and a successor in office by the name or title specified in the articles is a corporation sole, with continual perpetual succession.
8. Arizona Revised Statutes § 10-11901 Purposes for which corporation sole may be formed: Corporations may be formed to acquire, hold and dispose of church or religious society property for the benefit of religion, for works of charity and for public worship, and of property of scientific research institutions maintained solely for pure research and without expectation of pecuniary gain or profit, in the manner provided in this article.
9. California Corporate Code § 10002 A corporation sole may be formed under this part by the bishop, chief priest, presiding elder, or other presiding officer of any religious denomination, society, or church, for the purpose of administering and managing the affairs, property, and temporalities thereof.
10. Colorado Rev. Stat. 7-52-102 Upon the filing of the articles of incorporation with the secretary of state, the person subscribing the articles and his successor in office by the name or title specified in the articles is a corporation sole, with perpetual succession.
11. Hawaii Revised Statutes § 419-0001 Formation of corporation sole for ecclesiastical purposes. A nonprofit corporation sole may be formed hereunder by the bishop, chief priest, presiding elder, or other presiding officer of any church, for the purposes of administering and managing the affairs, property, and temporalities of the church, in the district within which the bishop, chief priest, presiding elder, or other presiding officer has ecclesiastical jurisdiction.
12. Idaho Code § 30-12 Repealed. The corporation sole is now only mentioned in a list among other Idaho non-profit corporations. Corporate sole peddlers, however, continue citing Idaho as a corporate sole state.
13. Michigan Combined Laws 458 Ecclesiastical Corporations. No mention is made anywhere in the MCL specifically of the corporation sole or corporate sole.
14. Montana Code Annotated 35-3-201 Whenever the rules or discipline of any religious denomination, society, or church permit or require the estate, property, temporalities, and business thereof to be held in the name of or managed by a bishop, chief priest, or presiding elder, it shall be lawful for such bishop, chief priest, or presiding elder of such religious denomination, society, or church to become a corporation sole in the manner herein prescribed.
15. Nevada Revised Statutes § 84.010 Corporations may be formed for acquiring, holding or disposing of church or religious society property, for the benefit of religion, for works of charity, and for public worship, in the manner provided in this chapter.
16. New Hampshire Revised Statutes § 306.6-8 Religious Societies. Mention is made of property title being held by the vestry and church wardens. But there is no mention anywhere in the NHRS of the corporation sole or corporate sole.
17. North Carolina General Statutes § 615. Religious Societies. No mention is made in this section, or anywhere else in the NCGS, of the corporation sole or corporate sole.
18. Oregon Revised Statutes § 61.055. Repealed (1989) The corporation sole is now only mentioned in a list among other Oregon non-profit corporations. Corporate sole peddlers, however, continue citing Oregon as a corporate sole state.
19. South Carolina Code § 33-31-140 (15). The corporation sole is only mentioned in a list among other South Carolina non-profit corporations.
20. Utah Code §16-7-1. Corporations sole may be formed for acquiring, holding or disposing of church or religious society property for the benefit of religion, for works of charity and for public worship, in the manner hereinafter provided.
21. Washington Revised Code 24.12.010. Any person, being the bishop, overseer or presiding elder of any church or religious denomination in this state, may, in conformity with the constitution, canons, rules, regulations or discipline of such church or denomination, become a corporation sole, in the manner prescribed in this chapter...
22. Wyoming Stat. Section 17-8-112. Upon making and filing for record articles of incorporation as herein provided, the person subscribing the same, and his successor in office by the name or title specified in the articles, shall thereafter be deemed, and is hereby created, a body politic and a corporation sole, with continual perpetual succession...
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