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.

Nullem Tempus Currit Contra Regem and The King’s Two Bodies: Foundations of the Duality 3

Today I wrap up teaching one of my favorite subjects in Property (ok I like them all) — Adverse Possession.  One of the topics we cover is adverse possession claims against the state.   Traditionally, Adverse Possession claims against the state did not stand.  This tradition in the common law stretches to the concept of the King’s duality, the King as Corporation as F.W. Maitland would refer to it, or simply The King’s Two Bodies as eloquently stated by Ernst Kantorowicz.   As Justices Southcoate and Harper in the case Willion v. Berkley said (as reported in Blackstone):

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 Southcoate 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, 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 Dignity royal, to another Body natural.   So that is signifies a removal of the Body politic of the King of this realm from one Body natural to another.

But perhaps the most famous iteration of the King’s two bodies comes from a case involving Edward VI’s lease of certain lands in the Duchy of Lancaster.   The land in question was considered to be the private lands of the Lancastrian Kings, not the property of the crown.  So when the lease that Edward the VI executed during his Regal term was called into question during the reign of Elizabeth I, the Crown lawyers all agreed upon the following:

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 constitutes 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.

This notion of the King’s two bodies is not merely an aberration of the law — rather it was a well known complication of living with a king.  As a matter of fact, the notion of the king’s two bodies figures quite prominently in Shakespeare’s Richard II and are referenced in others. For example in Henry V, King Henry V says:

Twin-born with greatness subject to the breath, Of every fool, whose sense no more can feel But his own wringing.  What infinite heart’s ease Must kings neglect that private men enjoy! What kind of god are thou, that suffer’st  more of Mortal griefs than do they worshippers?

In Richard II, the King’s dilemma is the mortality of the body against the feuding and disquiet of his subjects.   And after seeing a long procession of “tortured kings” Richard proclaims:

For God’s sake let us sit upon the ground, And tell sad stories of the death of Kings – How some have been deposed, some slain in war, Some haunted by ghosts they have deposed, some poisoned by their wives, some sleeping killed; All murdered! for within the hollow crown that rounds the mortal temples of a king, Keeps death his Court, and there the antic sits scoffing his state and grinning at his pomp, Allowing him a breath, a little scene, to monarchize, be feared, and kill with looks, Infusing him with self and vain conceit, As if the flesh which walls our life, Were brass impregnable; and humored thus, Comes at last , and with a little pin Bores through his castle wall, and farewell King!

As noted before, this fictionalized view of the King (the persona gemini) had far reaching impacts, including the law of adverse possession.  The next post will consider the King’s two bodies impact on Adverse Possession more directly.

Update:  Read part II: Nullem Tempus Currit Contra Regem and the King’s Two Bodies: Time and Temporal Reflections Here