Personality, Privacy, Immortality: Pre-American Roots of Corporate Law

Where do corporations come from? Most scholars of U.S. corporate history confine themselves to U.S. law and practice. But research in common law sources, going back to Henry II, illuminates US corporation law from a revealing angle. Popular criticism of the modern business corporation, and much of the historical and legal scholarship on it, has focused on the corporation’s alleged personality: its awkward fit into the problematic category of a legal “person.” Justice John Marshall’s formative decisions did indeed grant corporations legal standing as “persons.” But it is not clear what his alternatives were. Scholars have generally failed to deal with the question of alternatives, in the context of conceptual categories available when Marshall brought corporations into constitutional law. Alternatives present themselves, however, in the root system of common law (corporate cases, statutes, compilations, manuals, commentaries, and treatises on law and commerce). The most persistent alternative was to consider corporations as branches, agencies, deputies, or franchises of the sovereigns who create them. Several of Justice Marshall’s other foundational choices— about which his language was often tentative and provisional—appear, in light of this longer history of common law, to be as open as his decision to call them “persons.” Marshall inherited the distinction between private and public corporations, for example. But in his first major corporate decision—Bank of the United States v. Deveaux, 1809—he studiously avoided the word private. Ten years later, however, Marshall relied very heavily on Blackstone’s distinction of a “private” corporation, in the Dartmouth College case. Marshall made the related claim—what may be the most radical and consequential claim—that a corporate charter is a “contract.” Yet much of the common law of contracts conflicts with other features of corporate law, including one that Marshall and his predecessors held dear: that corporations are “immortal.”