Nullem Tempus Currit Contra Regem and the King’s Two Bodies II: Time and Temporal Reflections 1

The legal fiction of the King’s Two Bodies had far reaching consequences — including creation of legal doctrines that are still honored today in various forms (like adverse possession against the state).   Importantly, the development of the king’s temporal exclusion is seen most clearly through the lens of property claims on inalienable property held by the crown.  Ernst Kantorovicz describes the emergence of prescription claims in England and their connection to the inalienability of kingly lands:

The English royal judges of the twelfth century most certainly were familiar the legal concept of prescription, which had capital importance in canon law and to which Graetian in his decretum devoted a whole section on which naturally the Decretists commented over and over again.  But the English judges apparently saw no need in themselves to reflect upon the idea of prescription, since they seem to not mention it at all.  This indifference towards prescription changed in the following century: Bracton dealt repeatedly, and in a scholarly manner, with the principle Longa Possessio Parit its, “long possession creates right.”… By [Bracton’s] time reflections upon claims to prescriptive possession had become momentous to the royal judges.  In fact, prescription attained actuality within the public sphere once a certain complex of royal lands and rights had been set aside as “inalienable.”  In that moment, prescription and the prescriptive effects of time acquired considerable importance because they clashed, or might clash, with the notion of inalienability.  That is to say, the royal judges frequently faced situations in which they had to decide not only whether or not a private person could legally claim possession by prescription, but also to what extent such claims would affect royal rights and lands which were labeled “inalienable.”

It is this combination of the declaration of lands as inalienable, with the possibility that such declaration could be undone by the inconvenient reality of private long-term possessors, that forced the royal jurists to consider the nature of the king when claims of time were levied against him.  But just as the king’s duality allowed him the temporal supremacy necessary to defeat prescriptive claims against the inalienable lands (lands that would be defined further under Henry II, and which in oath the King swore to protect, preserve and recover); the king’s duality also recognized that the king was subject to prescription whenever “res non its sacra” or things less holy were concerned — things like tolls, manorial jurisdiction which fell outside the ancient demesne.”  Thus, the King’s two bodies was truly dualistic — completely perfect when it came to matters of the king’s realm, and yet completely subservient when it came to matters which were outside the king’s realm.  Kantorowicz again summarizes this nicely:

[I]n some respects the king was under the law of prescription; he was a “temporal being,” strictly “within time,” and subjected, like any ordinary human being, to the effects of time.  In other respects, however, that is, with regard to things quasi sacrae or public, he was unaffected by time and its prescriptive power; like “holy sprites and angels,” he was beyond time and therewith perpetual or sempiternal.  The king, as least with regard to time, had obviously “two natures” — one which was temporal and by which he conformed with the conditions of other men, and another which was perpetual and by which he outlasted and defeated all other beings.

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  1. Pingback: Nullem Tempus Currit Contra Regem and The King’s Two Bodies: Foundations of the Duality « The Literary Table

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