Sometimes, for want of a better method, church property was held in fee simple by the local priest
or by a pious layman. This system, however, led to endless difficulty. There was a constant fear that church property held in a private name might be claimed by a relative of the holder. Worse yet, the possibility existed that some unworthy claimant with a plausible story could make out a case for ownership. In one lawsuit, an unfrocked priest claimed to be heir to land that a deceased predecessor had purchased to build a church.

Bishop Carroll won that suit, but for the next seventy years the Roman Catholic hierarchy struggled to find a legally sufficient and canonically suitable manner for its church to own property. Vesting title in a board of elected or appointed trustees was one obvious possibility. In fact, that is the way Carroll originally incorporated in Maryland." But "trusteeism" itself became an issue when the trustees in some areas used their property ownership to pressure the bishops in doctrinal or disciplinary disputes."

The internal problems of the Catholic Church were exacerbated and complicated by the rise of a
national social and political phenomenon called the "Know-Nothing" movement In addition to their many other objections to Catholicism, these opponents had particular objections to control of church property by the clergy, and strenuously battled the church on this issue." The bishops battled back, in what they saw as a defense of the doctrine and practice of their religion against bigots on the outside and recalcitrants on the inside. Over time, the corporation sole became a major weapon."

Beginning in 1829, a series of national bishops meetings was held to address the problems of
Catholicism in America. Invariably, property problems were on the agenda. Soon after the first of these gatherings, Archbishop Whitfield of Baltimore sought a charter in the form of a corporation sole from the Maryland General Assembly. In 1832, it was granted."

The link between Roman Catholicism and the legal concept of a corporation sole was surprising for two reasons. "First of all, in England, this mode of incorporation was limited to the Anglican Church." In fact, the Roman Catholic hierarchy was not reinstated in England until 1850. Second, Catholic Canon Law did not envision a one-person corporation.  The minimum number required to constitute a "collegiate moral person" was three." Even the Pope was not a corporation sole. Even though bishops of dioceses have great autonomy in church law, favorable action by a board of consultants is still required on major property decisions to this day.

As Roman Catholicism spread geographically and grew in numbers in the last decade of the nineteenth century, new dioceses were created as new areas of the country were settled. Where they could, the bishops incorporated as a corporation sole. In some states, this required a private act of special incorporation; in others, a general incorporation statute was utilized.

The effort was not successful everywhere. On at least one occasion, a legislature defeated a bishop’s request for sole incorporation on the grounds that Catholicism would thus acquire a legal right not held by other religious denominations. Slowly, Roman Catholics won the battle for their church to be incorporated in a manner consistent with church polity. During this struggle, the old common law corporation sole was gradually transformed. There was no longer any link with an established church.  Although legislative action was often the result of activity by one church, the laws passed were usually broad enough for others.

In the courts, judges began to require specific legislative authorization for a corporation sole. The
common law was not invoked to create sole corporations in states where the legislature had not acted. Finally, at the beginning of this century, the Supreme Court, in an opinion by Justice Holmes, confirmed what was already an almost universal judicial stance: Apart from statute the law does not recognize the bishop as a corporation sole.

The transformation of the corporation sole from its common law form to a legislative format, however subtle, created something altogether new. Zollmann, writing in 1915, called it "a new form vigorously flourishing and American in the true sense of the word." The tide had turned. Momentum to secure the property rights of the Roman Catholic Church a century ago left permanent traces in modern American law. Today at least thirty states have a corporation sole in one form or another.

IV. The Corporation Sole in Statutory Form

Seventeen states explicitly recognize the corporation sole under statutory law, often in a special section for nonprofit corporations or in a section on religious societies. At least eight other
jurisdictions have at least one corporation sole created under special or private charter, sometimes
dating to a time before the passage of a general incorporation statute.

To understand the corporation sole under both of these categories, a method of analysis will be useful. For states that recognize the corporation sole under general law, California’s statutes can serve as a comparative model. For the states with special or private acts of incorporation, Maryland’s private charter for the Archbishop of Baltimore is a useful example.

The California legislation dates to 1877 and comprises part 6 of the title division on nonprofit
corporations. Some sections are technical, and relate to filing provisions, applicability to corporations organized prior to the implementation of the law, and procedures for voluntary dissolution. The key sections are those dealing with who may incorporate, the corporate powers, and the questions of vacancy and succession.

The California statutory system indicates that a corporation sole may be formed by a bishop, chief
priest presiding elder, or other presiding officer of any religious denomination, society, or church. The corporate powers specified in the California law are comprehensive.

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