§ 119. The State as a Corporation.
Of all forms of human society the greatest is the state. It owns immense wealth and performs functions which in number and importance are beyond those of all other associations. Is it, then, recognised by the law as a person? Is the commonwealth a body politic and corporate, endowed with legal personality, and having as its members all those who owe allegiance to it and are entitled to its protection? This is the conclusion to which a developed system of law might be expected to attain. But the law of England has chosen another way. The community of the realm is an organised society, but it is no person or body corporate. It owns no property, is capable of no acts, and has no rights nor any liabilities imputed to it by the law. Whatever is said to the contrary is figure of speech, and not the literal language of our law.
How, then, are we to account for this failure of the law to make so obvious and useful an application of the conception of incorporation and legal personality? Why has it failed to recognise and express in this way the unity and permanence of the state? The explanation is to be found in the existence of monarchical government. The real personality of the King, who is the head of the state, has rendered superfluous any attribution of fictitious personality to the state itself. Public property is in the eye of the law the property of the King. Public liabilities are those of the King; it is he, and he alone, who owes the principal and interest of the national debt. Whatsoever is done by the state is in law done by the King. The public justice administered in the law courts is royal justice administered by the King through his servants the judges. The laws are the King’s laws, which he enacts with the advice and consent of his Parliament. The executive government of the state is the King’s government, which he carries on by the hands of his ministers. The state has no army save the King’s army, no navy save the King’s navy, no revenues save the royal revenues, no territory save the dominions of the King. Treason and other offences against the state and the public interest are in law offences against the King, and the public peace is the King’s peace. The citizens of the state are not fellow-members of one body politic and corporate, but fellow-subjects of one sovereign lord.
Insomuch, therefore, as everything which is public in fact is conceived as royal by the law, there is no need or place for any incorporate commonwealth, respublica, or universitas regni. The King holds in his own hands all the rights, powers and activities of the state. By his agency the state acts, and through his trusteeship it possesses property and exercises rights. For the legal personality of the state itself there is no call or occasion.
The King himself, however, is in law no mere mortal man. He has a double capacity, being not only a natural person, but a body politic, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and undying persona ficta, in whom by our law the powers and prerogatives of the government of this realm are vested. When the King in his natural person dies, the property real and personal which he owns in right of his crown and as trustee for the state, and the debts and liabilities which in such right and capacity have been incurred by him, pass to his successors in office, and not to his heirs, executors, or administrators. For those rights and liabilities pertain to the King who is a corporation sole, and not to the King who is a mortal man.[[296]]
In modern times it has become usual to speak of the Crown rather than of the King, when we refer to the King in his public capacity as a body politic. We speak of the property of the Crown, when we mean the property which the King holds in right of his crown. So we speak of the debts due by the Crown, of legal proceedings by and against the Crown, and so on. The usage is one of great convenience, because it avoids a difficulty which is inherent in all speech and thought concerning corporations sole, the difficulty, namely, of distinguishing adequately between the body politic and the human being by whom it is represented and whose name it bears. Nevertheless we must bear in mind that this reference to the Crown is a mere figure of speech, and not the recognition by the law of any new kind of legal or fictitious person. The Crown is not itself a person in the law. The only legal person is the body corporate constituted by the series of persons by whom the crown is worn. There is no reason of necessity or even of convenience, indeed, why this should be so. It is simply the outcome of the resolute refusal of English law to recognise any legal persons other than corporations aggregate and sole. Roman law, it would seem, found no difficulty in treating the treasure-chest of the Emperor (fiscus) as persona ficta, and a similar exercise of the legal imagination would not seem difficult in respect of the Crown of England.
Just as our law refuses to personify and incorporate the empire as a whole, so it refuses to personify and incorporate the various constituent self-governing states of which the empire is made up. There is no such person known to the law of England as the state or government of India or of Cape Colony.[[297]] The King or the Crown represents not merely the empire as a whole, but each of its parts; and the result is a failure of the law to give adequate recognition and expression to the distinct existence of these parts.[[298]] The property and liabilities of the government of India are in law those of the British Crown. The national debts of the colonies are owing by no person known to the law save the King of England. A contract between the governments of two colonies is in law a nullity, unless the King can make contracts with himself. All this would be otherwise, did the law recognise that the dependencies of the British Empire were bodies politic and corporate, each possessing a distinct personality of its own, and capable in its own name and person of rights, liabilities, and activities. Some of the older colonies were actually in this position, being created corporations aggregate by the royal charters to which they owed their origin: for example, Massachusetts, Rhode Island, and Connecticut. A similar corporate character pertains to modern dependencies such as the Chartered Company of South Africa. Even an unincorporated colony of the ordinary type may become incorporate, and so possessed of separate personality, by virtue of its own legislation.[[299]] In the absence of any such separate incorporation of the different portions of the empire, their separate existence can be recognised in law only by way of that doctrine of plural personality which we have already considered in another connection.[[300]] Although the King represents the whole empire, it is possible for the law to recognise a different personality in him in respect of each of its component parts. The King who owns the public lands in Cape Colony is not necessarily in the eye of the law the same person who owns the public lands in England. The King, when he borrows money in his capacity as the executive government of Australia, may be deemed in law a different person from the King who owes the English national debt. How far this plural personality of the Crown is actually recognised by the common law of England is a difficult question which it is not necessary for us here to answer.[[301]] It is sufficient to point out that in the absence of any separate incorporation this is the only effective way of recognising in law the separate rights, liabilities, and activities of the different dependencies of the Crown.
SUMMARY.
| The nature of personality. | |
| Persons | Natural. |
| Legal. | |
| Natural persons—living human beings. | |
| The legal status of beasts. | |
| The legal status of dead men. | |
| The legal status of unborn persons. | |
| Double personality. | |
| Legal persons. | |
| Legal personality based on personification. | |
| Personification without legal personality. | |
| Classes of Legal persons | 1. Corporations. |
| 2. Institutions. | |
| 3. Funds or Estates. | |
| Corporations—the only legal persons known to English law. | |
| Corporations aggregate and corporations sole. | |
| The fiction involved in incorporation. | |
| The beneficiaries of a corporation. | |
| The representatives of a corporation. | |
| The members of a corporation. | |
| Authority of a corporation’s agents. | |
| Liability of a corporation for wrongful acts. | |
| The purposes of incorporation: | |
| 1. Reduction of collective to individual ownership and action. | |
| 2. Limited liability. | |
| The creation and dissolution of corporations. | |
| The personality of the state. | |