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The King's Two Bodies
A Study in Mediaeval Political Theology
By Ernst H. Kantorowicz PRINCETON UNIVERSITY PRESS
Copyright © 1985 Princeton University Press
All rights reserved.
ISBN: 978-1-4008-8078-2
CHAPTER 1
THE PROBLEM: PLOWDEN'S REPORTS
In Edmund Plowden's Reports, collected and written under Queen Elizabeth, Maitland found the first clear elaboration of that mystical talk with which the English crown jurists enveloped and trimmed their definitions of kingship and royal capacities. In order to describe conveniently both the problem and the theory of the King's Two Bodies it may be appropriate to choose as a starting point Plowden, himself a law apprentice of the Middle Temple, and quote some of the most telling passages from the arguments and judgments made in the king's courts and epitomized in his Reports.
The cause célèbre concerning the Duchy of Lancaster, which the Lancastrian Kings had owned as private property and not as property of the Crown, was tried — not for the first time, to be sure — in the fourth year of Queen Elizabeth. Edward VI, the Queen's predecessor, had made, while not yet of age, a lease of certain lands of the Duchy. Thereupon the crown lawyers, assembled at Serjeant's Inn, all agreed:
that by the Common Law no Act which the King does as King, shall be defeated by his Nonage. For the King has in him two Bodies, viz., a Body natural, and a Body politic. His Body natural (if it be considered in itself) is a Body mortal, subject to all Infirmities that come by Nature or Accident, to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other People. But his Body politic is a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for the Direction of the People, and the Management of the public weal, and this Body is utterly void of Infancy, and old Age, and other natural Defects and Imbecilities, which the Body natural is subject to, and for this Cause, what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in his natural Body.
It may be mentioned immediately that the pattern after which the King's body politic — "void of Infancy and old Age, and other natural Defects and Imbecilities" — has been modelled, can be gathered readily from Sir John Fortescue's tractate on The Governance of England, where he writes:
... it is no poiar to mowe synne, and to do ylle, or to mowe to be seke, wex olde, or that a man may hurte hym self. Ffor all thes poiars comen of impotencie ... wherefore the holy sprites and angels that mey not synne, wex old, be seke, or hurte ham selff, have more poiar than we, that mey harme owre selff with all thes defautes. So is the kynges power more....
The passage has not been adduced here in order to prove that the Elizabethan jurists "borrowed" from Fortescue, or that his treatise was their "source," although in other respects this possibility should not be excluded. What matters is that John Fortescue's passage shows how closely the legal speculations were related to theological thought, or, to be more specific, to the mediaeval concept of the king's character angelicus. The body politic of kingship appears as a likeness of the "holy sprites and angels," because it represents, like the angels, the Immutable within Time. It has been raised to angelic heights, a fact which is worth being kept in mind.
The judges, after thus having gained a foothold on, so to speak, firm celestial ground, continued their arguments in the case of the Duchy of Lancaster. They pointed out that, if lands which the King has purchased before he was King, namely "in the capacity of his Body natural," later were given away by him, such gift, even when made during his nonage, had to be recognized as the King's act. For — so the Elizabethan judges declared, and herewith their "mysticism" begins —
although he [the king] has, or takes, the land in his natural Body, yet to this natural Body is conjoined his Body politic, which contains his royal Estate and Dignity; and the Body politic includes the Body natural, but the Body natural is the lesser, and with this the Body politic is consolidated. So that he has a Body natural, adorned and invested with the Estate and Dignity royal; and he has not a Body natural distinct and divided by itself from the Office and Dignity royal, but a Body natural and a Body politic together indivisible; and these two Bodies are incorporated in one Person, and make one Body and not divers, that is the Body corporate in the Body natural, et e contra the Body natural in the Body corporate. So that the Body natural, by this conjunction of the Body politic to it, (which Body politic contains the Office, Government, and Majesty royal) is magnified, and by the said Consolidation hath in it the Body politic.
The King's Two Bodies thus form one unit indivisible, each being fully contained in the other. However, doubt cannot arise concerning the superiority of the body politic over the body natural. "Three Kings [Henry IV, V, VI] held the Duchy of Lancaster in their Body natural, which is not so ample and large as the other, and the fourth [Edward IV] held it in his Body politic, which is more ample and large than the Body natural."
Not only is the body politic "more ample and large" than the body natural, but there dwell in the former certain truly mysterious forces which reduce, or even remove, the imperfections of the fragile human nature.
His Body politic, which is annexed to his Body natural, takes away the Imbecility of his Body natural, and draws the Body natural, which is the lesser, and all the Effects thereof to itself, which is the greater, quia magis dignum trahit ad se minus dignum.
The Latin legal maxim saying that "the worthier draws to itself the less worthy" was common among mediaeval jurists. It was regularly invoked when a persona mixta (or, for that matter, a res mixta) was the issue. Baldus, the great Italian lawyer and legal authority of the fourteenth century, for example, linked that maxim most fittingly to the two sexes of an hermaphrodite: according to the Digest, the more prominent qualities were to determine the sex, for (summarizes Baldus) "if a union of two extremes is produced, while the qualities of each extreme abide, then the one more prominent and striking draws to itself the other one." What fitted the two sexes of an hermaphrodite, fitted juristically also the two bodies of a king. Hence, the Tudor jurist proceeded logically and in conformity with the rules of his trade when on that occasion he referred to the proper legal maxim.
The underlying idea was emphasized no less vigorously in the case Willion v. Berkley, which was argued in the preceding year (3 Elizabeth) in Common Bench. The subject was a trespass of Lord Berkley on certain lands for which he claimed to have paid a tax to the court of King Henry VII and which he considered as parcel in his demesne as of fee tail. The judges pointed out that
although the law should adjudge that King Henry 7. took it in his Body natural, and not in his Body politic, yet they [the judges] said that he [the King] is not void of Prerogative in regard to Things which he has in his Body natural. ... For when the Body politic of King of this Realm is conjoined to the Body natural, and one Body is made of them both, the Degree of the Body natural, and of the things possessed in that Capacity, is thereby altered, and the Effects thereof are changed by its Union with the other Body, and don't remain in their former Degree, but partake of the Effects of the Body politic. ... And the Reason thereof is, because the Body natural and the Body politic are consolidated into one, and the Body politic wipes away every Imperfection of the other Body, with which it is consolidated, and makes it to be another Degree than it should be if it were alone by itself. ... And the Cause [in a parallel case] was not because the Capacity of his Body natural was drowned by the Dignity royal ..., but the Reason was, because to the Body natural, in which he held the land, the Body politic was associated and conjoined, during which Association or Conjunction the Body natural partakes of the Nature and Effects of the Body politic.
The difficulties of defining the effects as exercised by the body politic — active in the individual king like a deus absconditus — on the royal body natural are obvious. In fact, Elizabethan jurists sometimes had to proceed with the caution and circumspection of theologians defining a dogma. It was anything but a simple task to remain consistent when one had to defend at once the perfect union of the King's Two Bodies and the very distinct capacities of each body alone. It is a veritable sword-dance that the jurists perform, when they explain:
Therefore, when the two Bodies in the King are become as one Body, to which no Body is equal, this double Body, whereof the Body politic is greater, cannot hold in Jointure with any single one.
Yet [despite the unity of the two bodies] his Capacity to take in the Body natural is not confounded by the Body politic, but remains still.
Notwithstanding that these two Bodies are at one Time conjoined together, yet the Capacity of the one does not confound that of the other, but they remain distinct Capacities.
Ergo the Body natural and the Body politic are not distinct, but united, and as one Body.
Regardless of the dogmatic unity of the two bodies, a separation of one from the other was nevertheless possible, to wit, that separation which, with regard to common man, is usually called Death. In the case Willion v. Berkley, Justice Southcote, seconded by Justice Harper, proffered some remarkable arguments to that effect, as the Law Report shows:
The King has two Capacities, for he has two Bodies, the one whereof is a Body natural, consisting of natural Members as every other Man has, and in this he is subject to Passions and Death as other Men are; the other is a Body politic, and the Members thereof are his Subjects, and he and his Subjects together compose the Corporation, as Southcote said, and he is incorporated with them, and they with him, and he is the Head, and they are the Members, and he has the sole Government of them; and this Body is not subject to Passions as the other is, nor to Death, for as to this Body the King never dies, and his natural Death is not called in our Law (as Harper said), the Death of the King, but the Demise of the King, not signifying by the Word (Demise) that the Body politic of the King is dead, but that there is a Separation of the two Bodies, and that the Body politic is transferred and conveyed over from the Body natural now dead, or now removed from the Dignity royal, to another Body natural. So that it signifies a Removal of the Body politic of the King of this Realm from one Body natural to another.
This migration of the "Soul," that is, of the immortal part of kingship, from one incarnation to another as expressed by the concept of the king's demise is certainly one of the essentials of the whole theory of the King's Two Bodies. It has preserved its validity for practically all time to come. Interesting, however, is the fact that this "incarnation" of the body politic in a king of flesh not only does away with the human imperfections of the body natural, but conveys "immortality" to the individual king as King, that is, with regard to his superbody. In the case Hill v. Grange (2 and 3 Philip and Mary) the judges argued as follows:
And then when the Act gives Remedy to the Patentees ..., and Henry 8. is mentioned before to be King, and so the Relation is to him as King, he as King never dies, but the King, in which Name it has Relation to him, does ever continue.
In this case, King Henry VIII was still "alive" though Henry Tudor had been dead for ten years. In other words, whereas the manhood of the individual incarnation appeared as negligible and as a matter of indifferent importance, the eternal essence or "godhead" of the monarch was all that counted before the tribunal of those "monophysite" judges.
Contrariwise, the "manhood" or the king's body natural might become of great importance too, as in Sir Thomas Wroth's Case (15 Elizabeth). Sir Thomas had been appointed by Henry VIII as Usher of the Privy Chamber to the entourage of Edward VI, when Edward was not yet king. At Edward's accession to the throne, Sir Thomas ceased to receive his annuities because his service, though suitable with a prince, was not considered befitting the estate of the King. Justice Saunders argued that the continuance of service after the king's accession would have been justified, for example, with regard
to a Physician or Surgeon for his Counsel and Service to the Prince; and if the King dies, and the Prince becomes King, there the Service is not discharged ..., for the Service is to be done in respect of the natural Body, which has need of Physic and Surgery, and is subject to Infirmities and Accidents as well after the Accession of the Estate-royal to it as before, so that the royal Majesty causes no Alteration as to the Service in this case. And so is it in other like Cases, as to teach the Prince Grammar, Music, et cetera, where the Service to be done has Respect merely to the Body natural, and not to the Majesty of the Body politic.
The least that can be said is that there was logic in the arguments of the lawyers. No less logical, though far less simple, were the arguments in Calvin's Case (1608) reported by Sir Edward Coke. Here the judges reasoned that every subject sworn to the king is sworn to his natural person, just as the king is sworn to his subjects in his natural person: "for the politic capacity is invisible and immortal, nay, the politic body hath no soul, for it is framed by the policy of man." Moreover, treason, that is, "to intend or compass mortem et destructionem domini Regis, must needs be understood of his natural body, for his politic body is immortal, and not subject to death."
Those arguments certainly reflect sound reasoning, although an attack against the king's natural person was, at the same time, an attack against the body corporate of the realm. Justice Southcote, in the passage quoted (above, p. 13) from the case Willion v. Berkley, referred to the simile of the state as a human body, a "Corporation" whereof the king is the head and the subjects are the members. Of course, that metaphor was very old; it pervaded political thought during the later Middle Ages. Nevertheless, the form in which Justice Southcote couched that old idea — "he is incorporated with them, and they with him" — points directly towards the politico-ecclesiological theory of the corpus mysticum which actually was quoted with great emphasis by Justice Brown in the case Hales v. Petit. The court, on that instance, was concerned with the legal consequences of a suicide, which the judges tried to define as an act of "Felony." Lord Dyer, Chief Justice, pointed out that suicide was a threefold crime. It was an offense against Nature, since it was contrary to the law of self-preservation; it was an offense against God as a violation of the sixth commandment; finally it was a crime committed "against the King in that hereby he has lost a Subject, and (as Brown termed it) he being the Head has lost one of his mystic Members."
"Body politic" and "mystical body" seem to be used without great discrimination. In fact, Coke, when discussing the politic body of the king, added in parenthesis: "and in 21 E.4 [1482] it is called a mystical body." It is evident that the doctrine of theology and canon law, teaching that the Church, and Christian society in general, was a "corpus mysticum the head of which is Christ," has been transferred by the jurists from the theological sphere to that of the state the head of which is the king.
(Continues...)
Excerpted from The King's Two Bodies by Ernst H. Kantorowicz. Copyright © 1985 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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