Maitland and Kantorowicz
I went back and looked at the Maitland essays on the corporation sole that helped inspire The King’s Two Bodies. I have to say, they do not seem to me to be Maitland at his best, although one can admittedly be a little more critical of the essays when one is holding Kantorowicz in the other hand. Still, the essays are interesting, and as good a way I know of engaging the chapters we’ve both tackled.
Maitland’s problem with the corporation sole is that he thinks it’s useless in the case of parsons, and dangerous in the case of monarchs. To make matters worse, the Victorian era appears to have seen a proliferation of the form (the postmaster was a corporation sole). This last aggravation seems to have so prickled Maitland that he abandons his usual historical sensibilities and goes for the legal jugular.
For parsons, Maitland argues that it would work just as well to consider them to be part of a larger corporation – that of the church. The notion of corporation sole seems confused to Maitland – does it refer to an actual or a fictional person? – and he sees no additional legal benefits.
Maitland is justly famous for his work on legal history, particularly his capacity to elucidate archaic concepts. But his historical instincts failed him here. In his effort to discredit the idea, it seems to me his legal arguments may be valid but he is overlooking some of the work the idea might do. Writing in the 1890’s, Maitland probably had few experiences of great schisms or church closings. Nowadays, however, the events are common. I’m thinking of the closing of parochial schools (and even a number of churches) in New York City, or the recent Episcopal schism over gay marriage. In each case, there arises the question of church property. Does it belong to the congregation, or to the larger church as an institution? The pastor as corporation sole seems to me to mediate between these interests.
Well, it’s a hypothesis, anyway.
At any rate, it seems to me that one similar way of regarding the King’s Two Bodies is as a kind of political compromise – one that recognizes the importance of different parties (the barons and the king, for example) without necessarily spelling out how they can resolve disputes. It’s “theology” is that it depicts a kind of cosmic ordering – it recognizes the community as necessary to the authority of the sovereign (compare the Holy Roman Empire – where certain individuals were sovereign not of a community or an area, but merely unto themselves). Returning to the parson analogy, if the parson is a corporation sole, then those who feel themselves members of a church share in his dignity with the Catholic/Anglican church. The measure that each participates is undefined, but it seems to me an exercise of inclusion.
My absolute favorite bit of Kantorowitcz, and what drove me to look back at the Maitland essay, is his discussion on pp. 448-450, which seems to me to sum up a number of points regarding Time and Space (capitalized following EK). The time of the polity is both synchronous and diachronous – it encompasses all the parts of the state at a given moment and also the continuous nature of the body in time, a collectivity that reaches beyond any individual member. One has, then a “fusion, and indeed a pardonable confusion, of Crown and Dignity” (448) in which the Crown refers to the estates with the King at the head and the Dignity to the whole genus to past and future.
This discussion reminds me of one of my own favorite themes (which I hope to discuss in a subsequent post with reference to China) – the deep connection of polity and time. Maitland’s essay continues in a direction I would not have anticipated from the passages EK cites – he mentions colonies. After all, did not Rhode Island, Connecticut, and Massachusetts manage to create corporations that served as political entities. And even places that did not – New Zealand, Australia, Virginia, New York – he cites interesting commentary to the effect that these entities are very like a corporation, but different. In thinking of the crown, Maitland concludes, does it not make more sense to speak of a Commonwealth than of a body?
It seems to me that EK has answered this question. For there is nothing mystical, and therefore in medieval thought nothing permanent, about a commonwealth of the kind that Maitland describes. It is also interesting to me that Maitland’s examples are all Criole communities (a la Benedict Anderson – that is, settler communities – colonies that form nationalisms). Rats, when I read it this afternoon I had another thought about this – something about the way the crown is distant – the way that a commonwealth cuts off monarchical power more than would have seemed desirable to many (though obviously not all) in earlier times. I just think Maitland’s notion of time is different. The polity he is thinking about – the British Empire – is not one that people can imagine as having always existed, and it is also not one in which the various components necessarily feel themselves (or wish to argue that they are, however metaphorically) a body – with all the tight coordination and seemingly natural unity that the term implies. Victoria was much more like an Empress, resembling, I think, the Qing more than the monarchy of Henry II. The sun might never set on this polity, but the sun was not setting everywhere all at once.
I have to admit that I do not understand why the postmaster, and various other offices, would be treated as corporations sole in this time. Nor can I make sense of the other non-ecclesiastical example Maitland mentions – the Chamberlain of the City of London. There’s rather more to this concept than examination of the King alone will reveal.
Here I’m reminded of one of EK’s most famous commentators – Michel Foucault, who famously asked if the body of the condemned man was not the counterpart to Kantorowicz’s monarch. Images of the polity necessarily exclude, and I’m wondering who was not in. Here my English history fails me – but Jews, for example, do not seem to have formed a necessary limb of the body politic. Still, it seems to me that England was perhaps more cohesive than most places – closer to modern notions of a continuous sphere of sovereignty than most places. Here I rely on a different work of Maitland – his lectures in the history of the English Constitution, in which he points out a peculiarity of English feudalism – that all land in England was the King’s land, that tenure in land was “held of” the king, and (most significant a contrast to the continent) that military service was due to the King – not to intermediate feudal lords. Whereas in France, if your Comte and somebody else’s Marquis (or whoever) were to have a disagreement, we serfs would have to join the battle – in England (in theory – Maitland is talking about a legal ideal with complicated real-world effects) “the only quarrel by which one is bound is the king’s quarrel.” I’m wondering if this system did not lead to a closer sense of allegiance or tie to the person of the king – if the notion of a linkage between universal corporate body and individual physical body did not make more sense in this context than it would have in France, to say nothing of Germany or Italy.
My main impression, having read the whole thing, is mainly – what a brilliant book. There’s so much to discuss. I want to return to the issue of Bracton, to resume our discussion of current legal issues as well as of medieval aesthetics, to discuss Dante, and to write about my own work (this last may have to take a little more precedence for me, as I have been away from it for too long).