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Thursday, October 8, 2009

Sotomayor, the King's Two Bodies, Corporations and Property

So the story goes, a Justice, a King and a Property Teacher Walk into a Bar and the Justice says how are we supposed to turn the other cheek on Corporations when they are given all of the privileges of people but all of the immunities of an immortal." The King turns to the professor and says, "it helps to have two faces."  (Rim Shot -- and if you want to know why the punch line makes sense, read on....).   

 In the wake of Sonia Sotomayor's first entre' into Campaign Finance Reform on the court, she asked what many scholars have asked over time:  Why do corporations get to be treated as people for certain things. Sotomayor said: Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."   Of course, the historical precedent is not what Sotomayor is taking issue with, its the correctness of that decision.  Indeed, Abraham Lincoln warned that "Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the republic is destroyed."  Clearly, American Corporation law draws its roots in the nineteenth century's industrial revolution and the transformation of the American economy. And ever since Santa Clara County v. Southern Pacific, American law has recognized that corporations are entitled to assert the bill of rights much like an actual person.  But the concept of the corporation as a person, is far more nuanced and mystical, yea its a Dan Brown novel waiting to be written...

The first scholar to dive into the concept of origins of the Corporation was F.W. Maitland.  In two early twentiethcentury articles titled The Corporation Sole (1900),  The Crown Corporation (1901), Maitland dives into the question of corporations as artificial persons.  Maitland begins  Corporation Sole by quoting Edward Coke:

200px-Frederic_William_Maitland_by_Beatrice_Lock_(Mrs_Fripp)

Persons are either natural or artificial. The only natural corporations are either aggregate or sole. Persons are men. The only artificial persons are corporations.

Maitland then goes on to describe the creation of the concept of artificial persons as one directly attributable to property. Specifically, the first English Corporations were in the form of the Parson of the church, who as the "corporation sole" represented the body that held the lands on behalf of the church. In Coke's day, there were three distinct corporation soles, Ecclesial or parsons, the Chamberlain (or Treasurer) of the City of London, and the King.  Its the King, however, that becomes the most prominent artificial person. Indeed, the King is said in the Case of Dutchy Lane at Sergent's Inn, (Plowden's Reports) to possess

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 into 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.

But the body politic and the body natural, though joined in one "corporation" held distinctive natures. As stated in the same report:

His body natural... is a body mortal, subject to all of the infirmities that come by nature or accident, to the imbecility of infancy or old age, and to the like defects that happen to the natural bodies of other people. But his body politic is a body that cannot be seen or handled, consisting of policy and government and constituted for the direction of the people and the management of the public weal, and his body is utterly void of infancy, and old age, and other natural defects and imbecilities which the body natural is subject to, and for this reason, what the king does in his body politic cannot be invalidated or frustrated by any disability in his natural body.

Thus, the concept of the body of the king recognized that in the capacity as King a number of conclusions were appropriate including that he was flawless and that time did not run against him (nullem tempit occurit regis). What's perhaps the most interesting, is that these fictions begin at the property level. Property represented in the early days of the fiction the point in the material world where the mystical properties of corporations, kings, and governments interceded into normal human activity. It is, as Ernst Kantorowicz analogized, the metaphor of the Eucharist in one political person -- the mystical joined with the tangible and therefore made known in an understandable form. In the early days, it was the property or the person that made the corporation a meaningful entity. And thus, the corporation did not speak or exist outside of the tangible form, but rather adopted the tangibility, cleansed it, and made it sacrosanct. 
Perhaps that is why Sotomayor has a point. It seems that Sotomayor struggles with the idea of imbuing corporations with eternal qualities at the same time that we offer them human existence and privileges. In large measure this is a function of the intangible entity. Do we really want corporations that are not tied in some tangible way to human existence, whether by the actors that can be held accountable for their actions, or the property that can be taken away and therefore stripping the corporation of its existence in the real world, with the perpetual ability to speak. That seems to be a relevant point in a day in which Corporations so easily vanish without a trace of their existence except the path of destruction they left behind. 
And if Dan Brown does write a novel about King's and corporations, I expect my royalties. 
Marc 
Image of F.W. Maitland, taken from Wikipedia
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