Law is made of metaphors. Metaphors are hard to pin down, at least to pin down as neatly as law’s makers and managers might like.Footnote ⁷³ Few metaphors are more slippery than that of the corporate person, through which many natural bodies are made one by law. Few more slippery, that is, than the metaphor by which jurisdiction is understood as law speaking. By highlighting corporate constitutionalism, William Pettigrew considers the interaction of these two conceits. Here, where the corporate person spoke and was spoken to by law we find the corporate person’s “jurisdictional evasiveness,” the efforts of others to check its evasions, and the reasons for their ultimate failure.

A corporation is a technique of jurisdiction by which a sovereign attempts to direct collective action.Footnote ⁷⁴ Like all techniques of jurisdiction, the corporation constantly threatens to slip the traces of sovereign control. This tendency to jurisdictional evasiveness that is inherent in all creatures made by the sovereign is intensified by the corporate person’s strangeness: certainly not human, but enough like one that it can insinuate itself into otherwise unseen legal, political, and economic spaces within and among multiple sovereignties. All the while, the corporate person takes on many qualities of a sovereign. It can because, as Sir Edward Coke put it, a corporation “is invisible, immortal, and rests only in intendment and consideration of the law.”Footnote ⁷⁵

A strange person indeed, but perhaps no more strange than the sovereign being by whose concession a corporation is created as a juridical subject.Footnote ⁷⁶ As Pettigrew suggests, we will do better in charting the history of political and legal ideas to move from our traditional focus on sovereignty to jurisdiction—to the ongoing business of speaking the law. As Bradin Cormack puts it, making this shift redirects our attention from “political theology” to the “mundane process of administrative distribution and management…through which juridical power, in confronting its own inefficacies, fantasises itself as sovereignty.”Footnote ⁷⁷ Jurisdiction, not sovereignty, is the means by which we might apprehend most clearly law and politics as languages and practices, in part because jurisdiction involves this fantasizing—a constant implicit assertion—of sovereignty. In other words, jurisdiction, not sovereignty, must be understood as the ground concept and practice of legal and political relations.

Listening to law speak reminds us that many voices competed not only to determine questions, but to determine the determiner of questions about the capacities of law’s subjects. In this competition lay the corporation’s opportunity for evasion. Despite its evasiveness, the English overseas corporation was at one time subject to a clear determiner. After all, a corporation is a franchise, an authority to trade, to govern, or both delegated to it by the monarch. Use of that delegated authority was supervised by the king’s justices in King’s Bench. The Merchant Venturers, a corporation trading across the Channel, learned of the justices’ supervisory power when their corporate privileges were taken away in 1615.Footnote ⁷⁸ The corporate person, with neither body nor soul, may not have been controllable in the same way as a natural person. But corporations were, in fact, controllable by judicial means. In this, the corporate person was no more successful in its evasions than law’s other subjects.

Courts and judges, too little considered in our accounts of imperial actors and their global walkabout, spoke law to corporations and thereby checked their evasions in the seventeenth century. That courts and judges did this work imperfectly does not change the fact that in many ways, corporate bodies were no more successfully evasive of those jurisdictions that would speak law to them than any others who claimed to act by the sovereign’s permission: hospitals and colleges, justices of the peace and commissioners of sewers or bankrupts, and so many others. To see this, we must integrate judicial institutions, ideas, and actions fully into our understanding of how global trade and empire were made and managed. As Pettigrew proposes, doing so integrates global and domestic aspects of constitutionalism, and suggests the change over time in the location of the ultimate jurisdiction to determine the jurisdiction of corporate persons. Once upon a time, that ultimate jurisdiction lay with courts and their justices.

But corporations asserted their own jurisdiction. They pronounced, in word and deed, competing ways of conceiving their being: a “nomos,” as Robert Cover put it, “an integrated world of obligation and reality from which the rest of the world is perceived.”Footnote ⁷⁹ Conceiving their role in ways that conflicted with the pronouncements of courts, corporate bodies spoke law back to those who might speak it to them. Like any distinct community within a sovereign’s fantasised sphere of control, every corporate person asserted a nomos at odds with the nomos guiding the courts. What Pettigrew calls the corporate person’s “duality between subjection and autonomy” may be understood as a natural feature of all juridical subjects in what are inescapably plural legal environments.Footnote ⁸⁰ Courts try to eradicate that duality by speaking what they declare to be the law against the counterclaims of self-forming sectarian communities, corporations, and others. Courts thereby solve, as Cover put it, “the problem of too much law.” “Confronting the luxuriant growth of a hundred legal traditions,” judges “assert that this one is law and destroy or try to destroy the rest.”Footnote ⁸¹ By such means, according to Cormack, “a juridical order encloses the world.”Footnote ⁸² Or at least it tries.

Corporate constitutionalism persisted in unenclosed spaces. The corporate person asserted its power to speak law to those it pretended to rule in far flung lands. Overseas corporations, like the ships that carried their wares, acted as of jurisdiction tracing lines of self-generated authority across spaces left unenclosed by multiple sovereigns.Footnote ⁸³ By operating within and at the behest of multiple sovereigns, the global commercial corporation pursued its own diplomacy, built armies, and made and executed laws often at odds with those of the sovereign who gave it being and of other sovereigns in whose territories and seas it lived its life.Footnote ⁸⁴

The more a corporate person spoke law, the more it developed the sound of a sovereign’s voice. In reply, the justices of King’s Bench in the seventeenth century momentarily seemed to solve the problem of too much law by speaking over the corporation’s voice. This judicial capacity reached outward with empire in all its forms, and was as much a part of corporate constitutionalism as the corporation itself. Indeed, it was in the interaction of court and corporation that there was constitutionalism of any kind. But in part owing to the limits of writs and warrants and other techniques of jurisdiction, the justices could only do so much. Thus part of the story that needs to be told in charting corporate constitutionalism concerns the techniques by which the metaphors that are law become, or do not become, operational in the physical world. The effectiveness of the techniques by which judicial speech may be given force in the world weakened as the distances those techniques had to cover grew.Footnote ⁸⁵

The eighteenth-century response to the failure of one court’s techniques for containing the corporate person’s evasions was to turn to another court, to Parliament. Parliament’s creation of new courts or modification of the techniques of old ones underscored the crucial point: that it now spoke law to all other claimants of jurisdiction. A growing parliamentary constitutionalism sustained an evasive corporate constitutionalism, in part by checking what courts like King’s Bench had once been able to say. This happened most famously when Parliament created a Supreme Court in Calcutta by the Regulating Act of 1773.Footnote ⁸⁶ Though made to curb some aspects of East India Company rule, further statutory regulation checked that court’s ability to speak law. As court and company battled in Calcutta, Parliament asserted its ultimate jurisdiction, thereby sustaining corporate constitutionalism.Footnote ⁸⁷ Parliament maintained the spaces where the corporate person’s alternate understanding of law could be asserted and made real in the world. The story of corporate constitutionalism remains one of evasion.