Is Archbishop Pell a corporation sole at common law?
152 Liability in tort (even vicarious liability) is personal. The common law rule actio personalis moritur cum persona meant that most actions in tort died with the wrongdoer. Statute could provide for their survival and transmission after death (see eg Law Reform (Miscellaneous Provisions) Act 1944, s2(1) (survival of certain causes of action against estate); Bankruptcy Act 1966 (Cth)). None of these situations apply so as to render George Pell (if I may refer to him by his personal name) liable in law for the debts or obligations of his predecessor in office, let alone other members of the Catholic hierarchy, living or dead.
153 The plaintiff seeks to outflank these propositions by contending that "his Eminence George Cardinal Pell Archbishop of Sydney" is a legal person who eo nomine is liable for the obligations of his predecessor because perpetual succession (with attendant liability in tort) is conferred upon the office. In short, the plaintiff says that the Roman Catholic Archbishop of Sydney is a corporation sole in which are vested the obligations to pay damages and/or equitable compensation that are sued upon, being obligations putatively incurred by a predecessor in the office.
154 This submission must be rejected.
155 The plaintiff invites the Court to read the Amended Statement of Claim as containing an allegation that Cardinal Pell is capable of being sued with respect to the matters alleged because, as the incumbent Archbishop, he is said to be "a juridical person having perpetual succession established under the Code of Canon Law of the Church to govern the Archdiocese of Sydney" being thereby "a proper defendant for claims against the Church in the Archdiocese". This submission elides the canon law and the common law.
156 The submission that the incumbent Archbishop is in effect a corporation sole is based on para 1 of the Amended Statement of Claim, which (as indicated) alleges:
1. The First Defendant is the person for the time being occupying the office of Archbishop of Sydney for the Roman Catholic church (the Church), being a juridical person having perpetual succession established under the Code of Canon Law of the Church to govern the Archdiocese of Sydney (the Archdiocese) as the particular Church entrusted to him, and in all juridical transactions of the Archdiocese acts in the person of the Archdiocese and is a proper defendant for claims against the Church in the Archdiocese.
157 The primary judge did not perceive that such an argument was being pressed. His Honour was justified in this stance in light of a statement made by senior counsel for the plaintiff at first instance (Black 324). Nevertheless, the point was squarely debated on appeal and it is appropriate to address it so long as no injustice is thereby done to the defendants having regard to the way they conducted the hearing at first instance. The defendants have faintly invoked Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, claiming that they may have put additional material before the court at first instance had the point not been dropped. It is unnecessary to consider this procedural objection, because the defendants have been afforded that opportunity in this Court, and because I have concluded that the point is hopeless in any event.
158 The ecclesiastical corporation sole emerged in the late middle ages as a concept that outflanked legislation prohibiting perpetual gifts that impaired the feudal profitability of land. Several statutes banned dispositions whereby land came into mortmain, unless the disposition was made with the licence of the feudal lord, usually the king. The word "mortmain" aptly described what was feared because, in Coke's words, "a dead hand yeeldeth no service" (Coke On Littleton 18th ed, (1823), London, Vol 2.b.). (See generally F W Maitland, "The Corporation Sole" (1900) 16 Law Quarterly Review 335; S J Stoljar, op cit, chapter 9.
159 The institution of the corporation sole emerged "as a way of explaining the firm continuity of [a] gift" of land to a local parson or priest (Stoljar, op cit, p141). The "notion of corporateness also helped to stress the 'non-private' nature of endowed to charitable property, as property lying outside personal inheritance" (ibid, p143).
160 This understanding of the concept's origin and function implies that the focus was upon succession to property rights and the efficient management of property devoted to a special purpose that was intended for the personal enjoyment of the particular incumbent.
161 I shall assume in the plaintiff's favour the debatable proposition that the existence of an ecclesiastical corporation sole would allow the transmission of liabilities in tort across time and from one office holder to another.
162 The plaintiff points to no statute or Crown grant constituting the Roman Catholic Archbishop of Sydney a corporation sole (cf Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 at 124). None exists, for reasons that follow, and the absence of any such grant is fatal to the argument. Neither the common law nor prescription fills the gap as regards the ecclesiastical office held by Archbishop Pell. (In stating the matter thus, I am not inferring that any church official in Australia today is placed in any different position, absent statute.)
163 Blackstone's Commentaries commences its discussion of corporations in the following terms (17th ed, (1830), London, Vol 1, p467):
We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.
164 The same authority describes perpetual succession as a necessary and inseparable incident to every corporation, "the very end of its incorporation: for there cannot be a succession for ever without an incorporation" (p474).
165 The early history of "the incorporate person" in the common law is traced in Holdsworth's History of English Law ((1922-1972), London, vol iii, pp469-482; vol ix, pp45-71). By the time of Coke on Littleton (1st ed, published in 1628) the law recognised a division between "persons natural created of God" and "persons incorporate or politique created by the policy of man … either sole, or aggregate of many" (Coke On Littleton, op cit, 2.a. See also the Case of Suttons Hospital (1613) 10 Co Rep 23a, 77 ER 960 at 968).
166 Professor Maitland described Coke's classifications of persons as "dogmatic" and the concept of a corporation sole as a "mere ghost of a fiction to a true corporation, a corporation aggregate" (F W Maitland, "The Corporation Sole" (1900) 16 LQR 335 at 337, 353). Maitland could find no case in which the natural man has sued the corporation sole or the corporation sole has sued the natural man (at p354). The learned author nevertheless points to late medieval cases which, for some purposes at least, regarded bishops, abbots and parsons as juridical persons. Those purposes appear to relate to the protection of the assets of the ecclesiastical enterprise.
167 To revert to Blackstone's Commentaries (p469-470):
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. And the 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, quantenus 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.
168 None of this assists the plaintiff. Coke and Blackstone were dealing with traditional ecclesiastical offices in the established Church of England in England, being offices of great antiquity in the common law. No Church is established in Australia. The Roman Catholic Church never was.
169 Early in Henry VIII's reign Fineux CJ said that corporations might be by grant of the King or Pope, or both, or by act of Parliament, or at common law (Seldon Society Year Book Series, Year Books of Henry VIII, Mich Pl 2, (2002) London, vol 119, pp101-2). The Pope's jurisdiction did not survive the English Reformation and the law about creation of incorporate persons came to what Holdsworth describes as "the modern rule that a corporation can only by created either mediately or immediately by the crown, or by Act of Parliament" (History of English Law, (1922-1972), London, vol iii, p475. See also James Grant, A Practical Treatise on the Law of Corporations, (1850), London, pp11-13; Hubbard Association at 122-4). The need for the sanction of the State for the creation of a corporation was rooted in public policy (Holdsworth, op cit, vol iii, pp478-9; vol ix, p46).
170 The weight of United States law is to similar effect, on my understanding.
171 Wright v Morgan (1903) 191 US 55 involved a property claim by the Catholic Bishop of Denver. The Opinion of the Court includes a statement (at 59) that:
Apart from statute the law does not recognise the bishop as a corporation sole….