Source: US Global Legal Monitor
Last year, to mark the 400th anniversary of the Mayflower Compact, I wrote a post on this blog about the Compact’s origins and legacy in Early American history. In that post, I wrote that the Compact served as a place-holder to acknowledge that the colonists were operating outside the region of North America that their patent authorized them to settle. It did not solve the problem of their need for a new patent for their colony. It did, however, represent a best effort at coloring their actions as legal or quasi-legal.
The language of the Compact is at once concise and vague – in its brief 195 words, it does not propose specific laws or a form of government, and it characterizes the collective that the people aboard the Mayflower intended to create with a famous but somewhat opaque phrase: “civil body politic.” In this post, I’d like to talk about the expression “civil body politic” and what it probably meant to the settlers at that time.
At the time of the Mayflower Compact, the phrase “body politic” was routinely used in the law to refer to corporations of all sorts. The category of corporation was both more broadly conceived in the 17th century than the modern word corporation and more transitional. While the latter might generally refer to private for-profit companies that bear a number of traits, including shareholder ownership, professional management, limited liability, and indefinite lifespan, corporations in the 17th century included, for example, hospitals, charities, colleges, some trade guilds, towns, public utilities, and even certain individuals who occupied important posts in public institutions. (Sheppard, pp. 1-5.) Relatively fewer business endeavors benefited from incorporation at that time than now, especially among joint-stock companies. (Seavoy, pp. 46-47.) It was also a period in which the Crown experimented with the new directions in the use of the corporate form. (Guenther, p. 10.)
William Sheppard, an attorney and author of several books in the 17th century, wrote Of Corporations, Fraternities and Guilds (London, 1659), a brief work on the law of corporations. In the introduction, he writes about his subject, “…although art cannot altogether arrive at the perfection of nature; yet it has in this showed a fair adumbration, and given to man the nearest resemblance of his maker, that is, to be in a sort immortal.” Photo by Nathan Dorn.
The word corporation itself is derived from the Latin word corpus, which means body, via the verb corporare, which means to embody. This usage rests on the widespread and longstanding European tradition of using the metaphor of a body to describe human communities. One pervasive idea was that the people in a community acted together in such a way that they became the mutually dependent parts of a single living organism, with, the king, for instance, standing in as the head. This metaphor has roots in antiquity, and can be traced in various forms through medieval Europe and England where it was used for a variety of organizations, but especially the church and the state. (Chroust, pp. 451-452.) Along somewhat different lines, it was repeated by lawyers in Tudor England that the King has two bodies, a natural one, that is mortal and will die, and a “body politic,” an institutional personality representing his sovereignty that can never die. (Axton, p. 212.)
The idea that smaller collective bodies within the kingdom could have and benefit from distinctive traits such as corporate personality and perpetual life already appeared in English sources from the 13th century. (Baker, p. 213.) By the 17th century, the law regularly used the expression “body politic” to make a distinction between natural persons – i.e. even human beings who are not the king – and artificial persons, which were often secular organizations, companies, or associations.
William Sheppard, the first author to write a treatise of any kind on the law of corporations in England, expressed it in his book Of Corporations, Fraternities and Guilds (London, 1659) this way, “our law doth take notice of a body natural, and a body politic.” (Sheppard, p. 2.) A corporation, he explains, is “a body in fiction of law.” The anonymous author of the second treatise on corporations, The Law of corporations: containing the laws and customs of all the corporations and inferior courts of record in England (London, 1702), repeats this formula and expands somewhat on Sheppard’s language: “A corporation or an incorporation is a body framed by policy or fiction of law, and it’s called an incorporation or body incorporate because the persons are made into a body, which endureth in perpetual succession…” (The Law of Corporations, pp. 1-2.)
The anonymous author of The Law of Corporations (London, 1702), the first serious treatise on the law of corporations, remarks in his introduction about William Sheppard’s earlier book on the subject, “I remember not any treatise designedly written on this subject except a little duodecimo by Mr. Shepard (sic), which extends not to the fortieth part of matters relating to corporations.” Photo by Nathan Dorn.
Generally, the creation of a corporation required the state’s authority. Both of the treatises cited above followed the analysis of “the lawful authority of incorporation” that Sir Edward Coke presented in the 1612 Case of Sutton’s Hospital. (Holdsworth, p. 382.) A corporation could only be created in one of four ways, namely a) by the common law (the prime example of this was the king; the British monarch is still today a corporation sole); b) by the authority of parliament; c) by royal charter, and d) by prescription or custom. ((1612) 10 Co. Rep. 1a, 30b.)
The state was willing to extend the privilege of incorporation on the grounds that the companies promote its preferred public policies. (Williston, 105, 110.) For instance, to provide assistance for the needy, it incorporated hospitals and charities; or to grow markets, through the establishments of fairs and trade guilds. At the end of the 16th century, the Crown began experimenting with the use of the corporate form to confer exclusive rights to conduct trade in foreign lands. This led to the creation of the merchant trading companies: the Merchant Venturers (1551), the Muscovy Company (1555), the Levant Company (1581), the Cathay Company (1576) and the East India Company (1600). (Baker, p. 483.)
In the 17th century, the Crown chartered corporations to further its efforts to build colonies in foreign lands. (Osgood, p. 261.) As a result, the language of corporations appears in the charters of early American colonies. To name a few examples, the Charter of New England, issued in 1620, establishes that company as “one body politic and corporate.” The same phrase appears in A Grant of the Province of Maine to Sir Ferdinando Gorges and John Mason in 1622. The Charter of Massachusetts Bay of 1629 also creates that colony as “one body politic and corporate.” Likewise, when Parliament passed the act of incorporation for the Society for the Propagation of the Gospel in New England in 1649, it established it as “one body politic and corporate in law.” The Harvard Charter of 1650 (which was not a royal charter) also establishes “one body politic and corporate in law.” As for Plymouth, part of the long hoped-for solution to the colony’s need for official authorization came in the Charter of the Colony of New Plymouth Granted to William Bradford and his Associates in 1629, which likewise established “one body politic and corporate.”
The Mayflower Compact’s “civil body politic” may have been meant to refer to a body politic that was “civil” as opposed to “ecclesiastical,” which is a distinction that is found in corporations of the time (Kyd, p. 22.) And since some see the Compact as a civil parallel to the church covenants that were an important feature of the practice of the separatist community who settled Plymouth, this meaning is suggestive. Or it may have been meant as a civil corporation as opposed to an eleemosynary, or charitable one, which is another distinction that one encounters. (Kyd, p. 25.) Or it was “civil” in the sense of urban, as a township, which is an obsolete meaning of the word that is attested in the 17th century. Or the word “civil” simply relates to community and citizenship. In any event, lacking the authority of the Crown and the formalities that royal charters or parliamentary acts of incorporation required, the Compact did not create a corporation that was valid in England. It looks in retrospect like a founding of a different sort.
Early works on corporations law in the Law Library’s rare books collection include:
Sheppard, William, -1675? Of corporations, fraternities, and guilds, or, A discourse, wherein the learning of the law touching bodies politique is unfolded, shewing the use and necessity of that invention, the antiquity, various kinds, order and government of the same … London: Printed for H. Twyford, T. Dring, and J. Place, and are to be sold at their shops …, 1659.
The Law of corporations: containing the laws and customs of all the corporations and inferior courts of record in England. Treating of the essentials of, and incidents to, a corporation. Of mayors, bailiffs, serjeants, &. and their executing process… London, Printed by the assigns of R. and E. Atkins for I. Cleeve, 1702.
Kyd, Stewart, -1811. A treatise on the law of corporations. London: Printed for J. Butterworth …, 1793-1794.
Angell, Joseph K. (Joseph Kinnicut), 1794-1857. A treatise on the law of private corporations aggregate, by Joseph K. Angell and Samuel Ames. Boston, Hilliard, Gray, Little & Wilkins, 1832 [c1831].
Axton, Marie. The Influence of Edmund Plowden’s Succession Treatise. Huntington Library Quarterly, Vol. 37, No. 3 (May, 1974), pp. 209-226.
Baker, John H. (John Hamilton). An introduction to English legal history. Fifth edition. Oxford: Oxford University Press, 2019.
Bilder, Mary Sarah. “The Corporate Origins of Judicial Review.” Yale Law Journal 116, no.3 (2006): 502-566.
Bilder, Mary Sarah. “English Settlement and Local Governance.” in The Cambridge History of Law in America. Eds. Michael Grossberg, Christopher Tomlins. New York: Cambridge University Press, 2007-2008. pp. 63-103.
Chroust, Anton-Hermann. The Corporate Idea and the Body Politic in the Middle Ages. The Review of Politics, Vol. 9, No. 4 (Oct., 1947), pp. 423-452.
Guenther, David B. “Of Bodies Politic and Pecuniary: A Brief History of Corporate Purpose,” Michigan Business & Entrepreneurial Law Review, Vol. 9, no. 1 (2020).
Kantorowicz, H. The King’s Two Bodies, A Study in Medieval Political Theology (Princeton: Princeton University Press, 2016 ).
F.W. Maitland, ‘The Crown as Corporation’, in The Collected Papers, ed. H.A.L. Fisher, vol. 3. (Cambridge: Cambridge University Press, 1911).
Osgood, Herbert L. “The Corporation as a Form of Colonial Government.” Political Science Quarterly, Vol. 11, No. 2 (Jun., 1896), pp. 259-277.
Seavoy, Ronald E. The origins of the American business corporation, 1784-1855: broadening the concept of public service during industrialization. (Westport, Conn.: Greenwood Press, 1982).
Williston, Samuel. “History of the Law of Business Corporations Before 1800 I,” Harvard Law Review, 2, No. 3 (Oct. 15, 1888), pp. 105-124.