Back on Bracton

With that out of the way, let's finally turn to the chapter on Bracton.

The King Above and Below the Law

I found Bracton's thoughts on kingship to be really exciting. For a medieval jurist, his thoughts are disconcertingly evocative of a modern school of thought: legal positivism. Specifically, his distinction between gubernaculum (the King's unquestionable powers) and iurisdictio (the King's dubious righteousness) is an intellectual maneuver which, though firmly rooted in a natural law philosophy, suggests the same conclusion as a modern legal positivist... that law's subject is properly the domain of governmental powers rather than of independent abstract principles.

The question with which I'm principally occupied - that of sovereignty - is activated in contemporary legal debate by the problems of jurisdiction. When a court lacks jurisdiction, it has no power within a given case to say what is right. (iuris = "right"; dictio = "to say")

Bracton's curious formulation of a King "below and above the law" threads the needle of this eternally vexing problem. The Bractonian King is grouped with Frederick II's Iustitia influenced emperor - but he's a significantly English deviation from the imperial ideal. For, if Frederick II's law-centered King is an incarnation of justice, Bracton's law-centered King is a legal subject beyond the reach of temporal powers. The law applies to this King. As E.K. notes on p. 149, Bracton assumed that the law goverened the propriety of the king's relationship towards other equally indefeasible rights - those of clergy, magnates and even the people. The law is above the king, in that it applies with equal validity to himself as to anyone else. The kingship itself is a product of the law. However, the King transcends the law by virtue of extra-legal and legislative powers.

The great Bractonian modification - and in this we may recognize the strong influence of England's struggles between Norman kings and local nobility - is that the King's power is shared with another source... that of his Council. On p. 157, E.K. explains the rhetorical structure of Bracton's definitions:

Bracton's method is always the same: exaltation through limitation, the limitation itself following from the king's exaltation, from his vicariate of God, which the king would jeopardize were he not limited and bound by the Law.

This movement is captured in a terminological shift which E.K. identifies - Bracton's Kings are not Christ-like as examplars of Christ's reign (imago Christi) but are Christ-like as emissaries of a divine, Law-giving Father. (see p. 159 and 162)

It is through this new, curiously English, formulation of powers that the Praecipe Henrico Regi Angliae (which I've encountered other references too) becomes sensible - an order from the King to the King that he perform an action or submit to justice for failure to do so. The power of the King is a closed circuit, but it nevertheless flows through a logical sequence of steps which can carry the King through the entire chain of position above, below, and back above the force of human law.

Christ's Purse

It is in the doctrines of property, though, that the absurdity of the Praecipe Henrico is manifest yet treated with respect. The king possesses two estates - an inalienable empire bound to his person by the law, and a defeasible personal estate which was treated "against the king as against any private person" (p. 171). If the King were to divest himself of an inalienable possession, he must by his own power claim it back again. If he is to forfeit possession of his personal property, then even his own power is insufficient to justly reclaim it.

The collection of properties which are inalienable are part of the emerging doctrine of a fisc - the common property of the Empire. The collection of properties which may be transferred are feudal - the property of individuals bound in relationships. On p. 172 E.K. emphasis that this is not yet a notion of dual kings. But this dichotomy of property is laying the groundwork for the later "corporation sole" - in which the King is an executive officer of a corporation consisting only of himself and his lineal ancestors and successors.

Though the property of this royal fisc was at the King's disposal, as the corporation's "executive officer," it was also subject to baronial supervision:

While the English kings reigning in the thirteenth century tried to ignore even the existence of a cleavage between themselves and the things public, the various baronial opposition groups were ready to widen that split and to pit the res publicae against the rex regnans. It is significant that during the constitutional struggles of the thirteenth and fourteenth centuries, the baronial objections were always centered on the fiscal-domanial sphere, including the prerogative rights attached to it, whereas the strictly feudal sphere - including feudal aids and ohter rights exercised by the king as personal liege lord - remained, on the whole, unchallenged. Within the orbit of public affairs, however, and especially public finances, the barons could venture to control the king, to bind him to a council of their own choice, and thus to demonstrate that things of public concern no longer touched the king alone, but 'touched all,' the king as well as the whole community of the realm.

In Bracton kingship is a special state of affairs - a King is undoubtedly possessed of superior position and status. But, he righteousness of his extra-legal capacities is subject to a truly constitutional system - his powers are only valid within the sphere justly constituted by established laws. Further, his powers are sometimes complete, but other times pragmatically subject to those of his Council. There's a menacing overtone to Bracton's philosophy. In Frederick II's theory of Kingship, there is no answer to the royal question: "Who's going to make me?" A king reading Bracton would be struck that the question is more than empty rhetoric, and has a response he wouldn't like to hear...

Private foundations

I'd like to open with some prefatory remarks, continuing our other discussion thread:

First: I have no formal education in Latin. Any knowledge I have of its vocabulary is derived primarily from heavy exposure as a student of history, a student of law, some incidental knowledge of Spanish, and a great deal of boyhood immersion in the traditions of Catholicism and western music which both deploy doses of instrumental Latin. I have studied ancient Greek, so I also have a decent understanding of certain rules the two languages share in common - primarily the importance of noun declensions. But I couldn't identify by sight a specific verb conjugation or case declension. It's enough to make some observations, and I don't want to disown all authority... but let it be clear that I'm not an educated source and any knowledge I might have is quite superficial.

Second: On the matter of liturgy, I've also picked up a lot of my knowledge by osmosis. I was raised by a lay expert on liturgy. Over the years, my father has often worked as a liturgical consultant for various Catholic parishes. Most of my life, I've found his passions to be corny and unreasonable, though I've admired his professional accomplishments - which were clearly infused by his liturgical expertise. It's simply a fact that my father consistently coordinates Masses which are transformative experiences in their own right, and at a level of quality that is hard to find in most parishes. He's very good at what he does. In a lifetime spent arguing with him about every topic under the sun, I've picked up a lot of second-hand information about liturgical theory and history.

In the Catholic tradition, there is an entire body of "Liturgical Law" - the law of ritual practices - which is intellectually distinct from "Canon Law" - the law of theological dogma. Lately, I've been going through a tentative reconciliation with the Catholic Church - I describe myself as a Catholic atheist. A great deal of that is motivated by a dawning realization that liturgy plays a central role in shaping human experience, and possibly by extension, human character. One could argue that my latest overtures to the Church are more like experimental drug use than any essential conversion - I've been experimenting with various practices and noting the physical and intellectual effects which such behaviors induce. For example, the sacrament of reconciliation (aka, "Confession") is a humiliating ritual in the most literal sense - it's a ritual expression of personal debasement. I was surprised to discover, however, that my personal act of confession (which included a frank admission to disbelief in the existence of God) was both intelligible within the Catholic framework and induced a physical experience of high intensity (when I was through, I literally wept and experienced joyful paroxysms). In a similar vein, I've been experimenting with the discipline of the Rosary - essentially a meditative practice that seems to be paying undeniable dividends for sharpening the clarity of my thought.

I'm not out to drop an uncomfortable of saga of personal religious development on you. But, given the centrality of the legal/liturgical distinctions in Kantorowicz, I think it's relevant to lay out the bases of my own authority on the topic - to both give you a sense of its bases and a metric by which to assess its likely biases. I've been engaging in a serious side-investigation into the norms and dictates of liturgical law, and I already have a deep but idiosyncratic acquaintance with it.

Another Reply to August.

August and I had a good chunk of our chat wiped out of the Fray - which was a shame. I've had trouble getting back my rhythm ever since. His latest reply can be found on August Phillipic. Below is my response to that entry:

I'm going to structure this reply, by breaking my responses into the same subsections as you have used. I'll try and limit myself to issues you've raised, and save new discussion for my post on Bracton. I may include some errata, however.

Theology

I'm not sure what to make of your opening query. You ask a lot of questions, and yet my response seems to be "exactly." Kantorowicz is suggesting that the King'd Two Bodies is a problem, and as such he links it to the same problem which plagued the Church - how is the mind to conceive such ideas of doubled essences instantiated in a material singularity?

You ask whether the English Civil Wars were closely related to a questioning of this edifice - and again, the answer seems to be "exactly." If Calvin's Geneva was the "French Revolution" of the Reformation, then Tudor England seems to be its "American Revolution." Radicalism and conservatism walk together as fellow travellers, and the radicalism of the era is tempered by a fidelity to tradition. I may be mistaken, but I'm fairly sure the Anglican Church rejected the doctrine of eucharistic transubstantiation - that the physical body of Jesus Christ was mysteriously present in the eucharistic host. That's a huge source of the dispute between Protestants and Catholics and seems to exactly mirror the debate about the King's residence within the king. In Protestant theology, the mysterious infusion of mundane substance with a palpable metaphysical force is roundly rejected. It seems to me that the Cromwellian Parliament's declaration of Charles' treason against itself is likewise reluctant to acknowledge that physical substance is transformed by its association with a divine kingship.

With regards to your question about fiction, I think E.K. has a pretty good discussion of that point on page 306. To the jurist, a "fiction" isn't a bad thing and lacks the same pejorative connotations that it has in other fields of thought. The law is often quite frank about the practical use of "fictions" to explain juridical reasoning. Corporations are explicit fictions. The doctrine of Ex Parte Young is equally so. Private property is described as a "bundle of sticks" - a group of definable rights which are severable and transferrable. The quote from Baldus on pg. 306 gets to what I think he means:

"Fiction imitates nature. Therefore, fiction has a place only where truth can have a place.

Legal fictions are pragmatic tools for making sense of abstractions. Every analogy is, in some sense, a fiction (look at the word's etymology: "not logical" - the equivalence of manifestly unlike things can only be understood abstractly).

Anyhow, some thoughts. Worry that my tone is too dismissive or declarative. Good questions, all...

Ritual

I know it's jumping the gun quite a bit. However, I think his discussion of effigies and burial practices on pp. 419-436 will really interest you. If you haven't already goten there, take a look at the doubled tombs in Figures 28, 30, and 31 at the back of the book. Each features wo representations of the deceased - a body lying in state on the upper tier, while an image of the man's dead and decaying corpse in winding sheets is below. A doubled representation of a single man, sleeping in a bunk bed of eternity. Cool stuff.

I can take a stab at laying out the distinction between "liturgical" and "juridical." I think I understand it. I'd argue that liturgy is a praxis-based approach with strong subjective implications: doing transforms being. On the other hand, law is a theory-based approach with strong objective implications: individual circumstances are governed by metaphysical principles which apply across all variations. A liturgical sinner can be transformed through the doing of atonement. A juridical sinner will be judged on the Last Days - the only question is whether his conduct has merited a pr-defined punishment. A liturgical king is infused with, and transformed by, the Divinity of his office. A legal king is a product of happenstance whose power is amplified at the same time his humanity is debased. Is that a sensible distinction? If so, reasonably consistent with E.K.'s terminology?

Language

I hope I'm not being obvious when I say, gemina persona means "twin person." It's definitely a paradox, born of Christology. Compare to the Roman model of kingship - divine apotheosis. The mortal man literally transforms into Godhood and climbs to the heavens. The Christian king molders in the grave until his bodily resurrection on the last day - whilst his soul goes whither its bound.

I think the terminology debate about "demise" against "death" is an interesting one. Is that an example of 16th-century spin? Or is it just an aspect of the venerable tradition of legal hair-splitting? Are they the same thing?

I think E.K.'s description of the persona mixta is suggesting that the Christ-centered kingship is one of mixture - a person with two statuses, rather than two personalities. As I've understood, the central and subtle distinction between the Christ-Centered King and the Twinned King is precisely the interplay of essences. I need to review the passages a few more times, but I'd be interested to hear if you think that's a fair shot at it. Or have I lapsed into an overly reductionistic understanding of E.K.'s argument?

Art

I think your comment about the law's impossibilty is both profound and true. Since the Judaeo-Christian tradition is rooted in a conflation of God and Law, the inhumanity of Law's position above the human's subject strikes me as tightly interwoven with the most basic essential questions of the Western mind. Isn't the greatest problem of theodicy how can a merciful God have created a miserable world? Isn't that identical to the greatest problem of law? Why doesn't adherence to a just law lead to a just society? Both questions pose a temptation of rejectionism - if the world is not always good, then God is either non-existent or malicious. If society is not always just, then our laws must be either ineffective or monstrous. It seems to me that both rejectons are seductive, but leave us floating on the surface of our human existence.

Errata

E.K. has a fascinating discussion on the problem of Continuity. When we get to that, remind me to interject my recent forays into learning how to pray the Rosary. One of the prayers is of particular interest in that case - the "Glory to God" goes as follows:

Glory be to the Father, and to the Son, and to the Holy Spirit. As it was in the beginning, is now, and ever shall be. World without end. Amen.

That line strikes me as particularly interesting in light of E.K.'s discussion of the historical debates over Time's finitude and linearity.

Call and Response

August:

(some responses)

Otto

We're not going to get anywhere with this. If you think the image was used as a teaching tool, fine. I think it's unlikely, just because of the rarity of books. Medievalists get away with this sort of thing because of the dearth of sources, but in other periods it is often possible to show how an image was used, how it circulated, who saw it when, etc. The work is no less stunning for the degree of commentary it did or did not require.


Legal History/History of Science

Another likely dead end. Lawyers tend to think legal historians are useless, and scientists tend to think historians of science are useless. Scientist talking about their own history tend to have a strong notion of progress (old mule Sal). Some are wish to maintain a stronger division between scientific facts and cultural constructs than most historians are willing to allow. I was thinking of a big controversy at the Institute where the scientists vetoed a historian of science from membership. But I don't disagree that lawyers have abused history terribly.

It was a throwaway line – sorry to lead off track

Your Question
I think you think you are communicating more than you are communicating. I agree with you, and then you disagree with me. It's like arguing with my wife (if I believed in smile emoticons I'd put one here) I'm going to overlook "The Renaissance leads to the Enlightenment."

Look, I think we have similar concerns about the Middle Ages – neither pretending that their ways of viewing the world were equivalent to ours, nor assuming that they were somehow trapped in an (inferior) intellectual straightjacket. If I misread your question, it's in part because "Greco-Roman rationality" seems to me as fully alive in 1200 as 1800.
As for novel vs. received knowledge – well, I'd expect you could find arguments for both at any given time (certainly King's Two Bodies has examples of both rhetorical strategies).

I haven't read either of the works you suggest. I'm going to try to make it to the library this afternoon (where the hell does my day go?). Hopefully I can at least skim a few things.

Means vs. ends. Let's return to this. I'm interested in what you have to say on the subject, but for now I think it's important to dig into Kantorowicz. I do think it's useful to have a pretty good idea of what each of us has invested in the book.

For my part, post-modernism hasn't caused me much angst. Maybe it's intellectual laziness, or maybe it's some weird quirk of my upbringing, but I like the idea that everything is rooted in language. I have a harder time dealing with certainty than doubt.
Hmm, that really does sound like intellectual laziness (I'll be quoting Andrew Sullivan if I'm not careful).

Hmm, let me turn to the text and see if I can't find something more interesting to say.


------------
Me:
I have an unfortunate habit of focusing in on small differences. I relish conversations such as this, despite the fact I often fear I'm listening past my interlocutor. Please do let me know when I'm being non-responsive or miss something.

The use of the image is unfortunately hard to gather from our vantage point - though as a Gospel, the book likely had liturgical significance. At the very least, I'd hope we could agree that manuscript illustrations likely had a didactic purpose among the literate.

On legal history, I meant to agree that E.K. isn't providing much context for why England diverges. But I think lawyers find legal history more useful than scientists do - which is precisely why they (we) debase it so badly. My prof has a nice term for it - "law firm history." Judicial opinions often involve intense scholastic debates about fine points of history, in which sources are deployed with scant regard for historical context to buttress contemporary arguments.

On post-modernity, I think more than I can say, so I'm not surprised if I'm communicating less than I should. If you take post-modernism seriously, it poses a serious challenge to modern academia. Here at law school, there's a small department dedicated to "Critical Legal Studies." The reaction to this field is best summarized by a book on legal philosophy I once read (I've seriously condensed a 4 page range here):

Before moving to a discussion of moral theory and its relation to legal theory, we shall pause briefly in order to consider a radical challenge that has recently been preseneted to the legitimacy of the traditional understandings of both of these enterprises. This is the challenge presented by Critical Legal Studies (CLS), including its feminist wing. [...] The basic ideas of CLS are best seen, at least initially, as an attack on the idea of neutral principles in law and morality. [...] If we took literally the radical value relativism and skepticism taught by some advocates of CLS and feminist jurisprudence, we would seemingly be deprived of any language through which those persons could attempt to persuade others to care about the issues they raise.

Not all advocates of CLS and feminist jurisprudence offer so facile a ralativism, and thus not all are so easily rebuked. There is more to be studied in these movements, and it should be studied in the writings of those sympathetic to them."

In my own education, I was constantly steering between ardent post-modernists and professors who argued that it lacked a methodology or purpose at all, and was hence a priori invalid. Its proponents struck me as flummoxed; its detractors struck me as anti-intellectual.

I've certainly fetishized language myself. But I think those of us raised in an intellectual climate tinged with post-modernism have a potential to build something very useful with our understanding, that is nevertheless very different from post-modernism itself.

Response to August

I haven't read Maitland. I haven't even begun to find him. I've found authors in the law library who seem to echo the points for which E.K. cites Maitland, but tracking down that author will come later for me.

With regards to your discussion with "Anonymous" - I doubt you were speaking to TQM. Two bases for the assumption. (1) Too much identification with abstractionism; (2) stylistic or linguistic discrepancy... doesn't "sound like him." I could be mistaken, but I suspect that's someone else.

The Aachen frontispiece... I suspect you're wrong. While it's true that such a book would only be available to those with an "expertise" in writing, I suspect that in that age (much as our own) such experts had a "duty" to translate their understandings to the laity. We don't have an empirical hook on which to hang such suspicions. But my comparison to a contemporary power point show wasn't accidental. I believe such images were meant as explanatory tools - not only to help the literate student, but to give him a capacity to evangelize an untutored audience. A parallel that leaps to minds is the architecture of a Gothic cathedral, in which many details of the era's cosmology were inscribed upon the very walls. The specialized understanding of the literate cleric charged its recipient with a public duty to explain the concepts to which he'd been made privy.

Alas, I don't have the tools to adequately argue the point. But I strongly suspsect that the emphasis on illustration in medieval manuscripts serves as much to bridge the gap between the illiterate and the literate... much as a contemporary children's book uses big pictures to impress the meaning of the words upon the child, while the letters of the text are only accessible to the adult.

All that said, I think your shift towards the implicit communication of imagery is well-grounded. I'm going to bracket that invitation, not because it's uninteresting (quite the contrary), but because it's too big for me at present.

I dimly recall the book by Aries... I actually took a course on the development of childhood in American culture, and it was a seminal work.

When you get to my question, you make a conflation I tried hard to avoid - the Renaissance and the Enlightenment. The Renaissance may be the Middle Ages... but it certainly leads to the Enlightenment, which is not. Two book recommendations that come to mind are Evil in Modern Thought by Susan Neimann, which I read just last year and New Worlds, Ancient Texts (which I read almost a decade ago). At this point, I wouldn't be surprised if you're already intimately acquainted with one or both. But, just in case...

Nevertheless, your response relies upon the continuity of tradition (certainly a Renaissance value)... yet, the Enlightenment seems to have sparked an emphasis on originality of thought. One of Grafton's points ("New Worlds, Ancient Texts") is that we've come so far in our prioritization of the novel, that we've lost sight of how medieval people saw themselves situated within time. Why did Christopher Columbus have a copy of The Travels of Mandeville with him as he sought his route to China? Because he was retracing a historical voyage, not blazing a new trail towards a new world. In today's world, we find Mandeville a fabulist and Columbus a pioneer. But in 1492, Mandeville was a travelogue and Columbus was nearly an historian.

When I suggest we might need to "go medieval" on our own asses (or rather, our intellects), I mean to suggest that the post-Enlightenment development of the Western mind may have elevated what were once believed the means towards understanding into the ends of understanding. This blends into an epistemological and metaphysical critique of my own existence, that I alas cannot yet comprehensibly defend. I've met a surprising number of people my age, who seem to be haunted by an ineluctable "something" - a philosophical belief they can't yet think into expression. We seem able to agree that they're possibly the "birthing pangs" of a post post-modern mind - the possibility of building anwe, through the tools of deconstruction. I submit that this description is either a product of some species of derangement or it is the pre-verbal germ of a developing idea. I'm eager to be drawn out if such a line of discussion interests you. If it seems deranged, it'd be kind of you to say so.

Your General Points.

Rulership.

I think he has provided us a view of the ranges... however, on a higher level of generality than you're looking for, and across a broader swathe of text. The juristic King, the ecclesiastical King, the natural King, the accidental King, the messianic King... it's all there.

But - the Anglo-Saxon deficiency does seem writ large across the text. I took a wonderful course under Philippe Buc at Stanford (how I first encountered Kantorowicz, incidentally) about the spread of Christianity through Pagan Europe. The course split its analysis between two major periods of conversion - the Roman Empire to Christianity in, I believe, the 4th century A.D., and the conversion of Scandinavian culture in the 9th and 10th centuries A.D. If you want a fascinating insight into the legal structure of the Scandinavian world, I highly recommend Njal's Saga - a fascinating tale of Icelandic political history. I can't seem to find it on my shelf... though I'm fairly sure it's the one I mean.

It seems clear that E.K is neglecting the indigenous side of this discourse. He's laying a tremendous foundation for the canonical and ecclesiastical doctrines which will infuse the doubled British King. But it seems like the atheological side of British Culture... the Magna Carta hasn't been mentioned, and according to the index will only be discussed once upon page 407. He makes it clear that the British Divine King is less than his Continental Divine Counterpart but seems to attribute it to an accidental British essentialism:

"England in the thirteenth century was less messianically minded than Italy and the rest of the Contient, and the doctrine of the ruler as a lex animata descending at the command of God from high heaven down to men seems to have fallen on particularly barren ground in England before the age of Queen Elizabeth."

This may not be due so much to some quotidian nature of the British soul, but might have far more to do with the precarious negotiations of an alien sovereign over a deeply seated indigenous tradition.

Context
Bracton's writing for lawyers. Before Blackstone, he was the definitive work on English law. He wrote "The Laws and Customs of England" (or as E.K. assumes you can translate, De legibus et consuetudinibus Angliae p. 145). And lawyers in that time are walking a fine line between a tenacious English common law and an evangelical civil law. At least, according to Blackstone:

NOR was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the fee of Canterburya, and extremely addicted to this new ftudy, brought over with him in his retinue many learned proficients therein; and among the reft Roger firnamed Vacarius, whom he placed in the univerfity of Oxfordb, to teach it to the people of this country. But it did not meet with the fame eafy reception in England, where a mild and rational fyftem of laws had been long eftablifhed, as it did upon the continent; and, though the monkifh clergy ( devoted to the will of a foreign primate) received it with eagernefs and zeal, yet the laity who were more interefted to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen immediately publifhed a proclamation c, forbidding the ftudy of the laws, then newly imported from Italy; which was treated by the monks d as a piece of impiety, and, though it might prevent the introduction of the civil law procefs into our courts of juftice, yet did not hinder the clergy from reading and teaching it in their own fchools and monafteries.


FROM this time the nation feems to have been divided into two parties; the bifhops and clergy, many of them foreigners, who applied themfelves wholly to the ftudy of the civil and canon laws, which now came to be infeparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the oppofite fyftem that real merit which is abundantly to be found in each.

Is that a good quote, or what? Blackstone fucking rocks.

Legal History
I think you're wrong. For starters, scientists aren't compelled to abuse their own history. Lawyers are horrible with it. To a lawyer, history is a thing to be shaped for a present purpose. Judicial reasoning is a travesty of intellectual integrity, but a necessity of political life. Treating it seriously will drive you crazy. Not treating it seriously will leave you impotent before the Law. I'll admit, E.K. isn't discussing the difference between Norman Sicily and Norman England. And, that's probably a good thing. I'm armed to explaine something about Norman England. I have barely a clue about Norman Sicily. (And Norman Byzantium? I can only admit I know it was so.)

What's different? That requires a lot of explanation. What are Normans? How did they manage that? Why did they do it? It's too much for E.K.'s purpose... he's assuming you know the basics, and it's probably an over-generous assumption (even for me).

Presentism
I won't go into the name-dropping either (except to say that I've neither read Habermas nor do I "know what to say" about him (a prof friend of mine frequently says "haven't read him, but I know what I should say..."))

But I say "good catch" on E.K.'s conflation of "public sphere" with res publica - I missed that and must think upon it. "Secular" is also tricky in this context, because of E.K.'s undelineated context of binding pre-Christian authority. To Blackstone, the British Druids have an undeniable place in English legal history...

August Thoughts

To quote:

[(?)we]'ve got a lot on the table here. I'll try to keep in more or less coherent chunks

Have you read Maitland yet? If not, let me know when you get to him, and I'll try to track him down as well. I saw your references to Blackstone on your blog. I may take a peak if I have time (can you tell I'm procrastinating?)

Digression on Images

I've read Understanding Comics. I feel like I wrote about it not so long ago – I think in a dispute with Quiet Man over on WikiFray. Yeah, it's in the comments, here. You are right that he is arch in his readings of our visual cues.

I think the readers of the Aachen Gospels would have understood the image. That's a very small audience. And the point is, that they might have understood it so completely that they thought it commonplace. Or, no, not commonplace, because books weren't commonplace, but they might have thought it an image that required no particular elaboration. They may or may not have seen it as summing up their political culture. Kantorowicz is very much interested in the image because of its relationship to later images.

That being said, I agree it's a stunning work. It's economy in depicting a kingship, a cosmos, an eschaton – it made me want to go to the Met. Maybe I'll do that tomorrow.


I was trying to come up with something equally complex – you may be right that our visual culture is far more one-to-one than medieval iconography. But our metaphors of power remain rich. In my now-lost post, I talked a little about the recurring theme of many movies – that the protagonists would be okay if only they could escape the strictures of deadening convention. Think "Footloose," "Titanic," or virtually any costume drama. Or it may be that future generations look back at our architecture – the pre-fab house, the Seattle Space Needle, Epcot Center. Or think of the various Fray post invoking various obligations of motherhood. I don't mean to sound mystical -- I know my argument would be better if I took the time to trace some of the political valiances. All I'm saying is… it''s pretty complex, and the apparent simplicity of our logos and charts shouldn't mask the tricky work of naturalizing hierarchies that's happening all over the place.

Medieval imagistic thought and speech – I'm sure you're right. Medievalists in general have the reputation for paying closer attention to such things than modern historians. I saw a great talk by Carolyn Walker Bynum about blood, which I sadly can't remember very well, but she paid close attention to depictions of blood, and of what blood meant for religiousity, piety, kingship, and gender. We're getting into the period when people start flagellating themselves and the like. It definitely opened my eyes to the fruitfulness of that kind of history. Also a famous book on the history of childhood by (I think) Aries.

So while I agree that the Middle Ages get a bad rap, I think medievalists do very well for themselves.


I'm going to skip the Chinese stuff for now – too much to explain. I'll come back to it.

You asked a question that intrigued me:

If medieval thought represented a thoroughly different trajectory from Greco-Roman rationalism (and I suspect it did), might we better be able to comprehend our post-modern world with a self-conscious medievalism?

Well, clearly the answer is yes. In college I read a great essay by LeGoff – "Toward an Extended Middle Ages." Think of our great fears: the plague and the infidel. Think of the vast encroachments on public interest by private (yet corportate) entities (wondering how Haliburton relates to the fief. And let's face it, the Renaissance is the Middle Ages. There's really no difference – the revival of antique precedents was a near-constant activity from Otto to Napoleon. Can fundamentalism be understood outside the Reformation, and what is the Reformation but a peculiar form of the waves of piety that overtook people throughout the medieval period. I think we learn a great deal about ourselves from the Middle Ages.

And also from our medievalisms – that is to say, our ways of understanding the period. I'm going to move to some general criticisms/questions about Kantorowicz, and then go to some particular textual matters.

Some General Thoughts

I've read to page 192, and a couple of things have struck me.

Rulerships
I've been wondering a great deal about the Anglo Saxons, and more generally about images of kingship and rulership. What of the tribal chiefton, the military hero, the iconography that would have been summed up with a Black Bear rather than a Roman Lion? Kantorowicz is self-conscious in his selectiveness, but I wish an introductory chapter had given me a better sense of the possible range of images out of which we were finding our two bodies.

Context
He does, to be fair, mention the Investiture's Controversy. But beyond that, there's very little said about the developments that might have influenced, for example, the shift from Christ-centered to Law/God-the-father-centered kingship. I have to confess I get rather lost at times. Who is Braxton writing for? Is his audience the sorts of folks who forced John to sign the Magna Carta, or was he writing for a special class of jurists?

Legal History
I think legal history is to law as history of science is to science. Each seems designed to confound lawyers and scientists. A classic move in legal history is to show that similar laws lead to different outcomes, thus flummoxing the claim of (a few?, some?, fewer and fewer?) lawyers that law determines outcomes. The closest E.K. has come to this move is in the chapters contrasting Frederick II and Bracton. I see the divergences, but again the why of the divergences remains a question for me.

Presentism?
Every once in a while, Kantorowicz seems downright prophetic. His analysis of a "public sphere" seems to anticipate Habermas. His interest in time seems to share a great deal with the German historian Reinhart Koselleck.

O screw it, no point in name dropping. What I'm dancing around is that there are passages when Kantorowicz seems to me a little too rooted in the twentieth century. There's a difference between res publica and a public sphere (p. 191 "the king as supra-individual administrator of a public sphere"). And even more so – the notion that he is recording a secularizing tendency. "Secular" is the wrong word here.

Okay, well, I've marked some passages for closer examination, and I'm sure you have a few as well. I'll examine and post.

(I should point out here that I can't read Latin. If you can, any insights would be welcome).

I've found your comments very, very thought-provoking. I haven't responded to all of them because there's so much to say, and I'm really only just sinking into the heart of the work. I'll try to keep actively posting through the weekend. After Tuesday next week, I start teaching again and my pace will slow, but I'll certainly be around.

New entry on Kantorowicz

First, let's talk about the structural organization of this work. We began with Plowden's Reports - in short, a case summary explaining the problem of the King's doubled body. On the one hand, we have a doctrine which helps to settle thorny dilemmas of power. Can one King retract another's contract? The answer is "no," but the imperative of law is to provide a plausible "why." And hence, we find that a King can't be a minor because the mystical body of King-ship is the party to a contract.

In the opening question, we face a cross-roads. Our paradox is already clear... it's a simple variant of the puzzler "can God create a stone so heavy he can't lift it?" If we choose an answer, God can't help but be diminished. The unfortunate position of law is that it must answer paradox, and the 14th century's resolution errs on the side of finality. If the King's will shall be mercurial, then it's authority shall be arbitrary. Though it's not easy to dispossess the King, it's far harder to undermine the basis of his authority by admitting to his inconstancy.

In E.K's analysis of Richard II we see the stakes of this problem humanized - the fickleness of the man-king has been tamed by subjecting the man who is king to the fickleness of the divine King. Richard II derives great elevation from his proximity to the Godhood of sovereignty. But the office owes the man no duty - it may lift itself from his person and alight upon the body of Bolingbroke. And in this we face the dilemma of Icarus at the height of political power - he who dares to epitomize the sun, nevertheless flies upon waxen wings, and is sure to fall at the hands of the very power towards which he has exalted himself.

After laying out the terms of the ultimate issue, E.K. takes us back to the beginning - when things were different. He begins his discussion in England, shortly after Hastings, with the work of the Anonymous Norman. The man is out-of-step with his time and with his place. For, as a Norman, he embodies a contemporary European notion of law and kingship... the King as the Christomimesis - the image of Christ. E.K. doesn't do such a great job of drawing out the historical counter-pressure (which Blackstone does discuss in depth) of an indigenous nobility that refuses to accept the wholesale imposition of Norman legal frameworks. But, he does point out the idiosyncracy of his leading author.

From there, we move to the larger milieu - Otto II, the 10th Century Emperor of "Holy Rome." Otto II is a King who drinks from the Godhead of Christ. It's a messianic metaphor of Kingship, and as such embodies a sequence of paradoxes which imperfectly translate into the English experience. A King enjoys office by grace, which is to say by election - by the mysterious workings of divine care for this earth.

In Chapter IV, we experience a shift in ideals of Kingship, towards a legalistic framework. Frederick II, of Sicily enjoys his authority from the font of Reason and Justice. It's within this framework that E.K. situates Bracton - the King as an exalted receptacle of divine virtues, rather than a mere exemplar of Christ. If Otto II ruled because God cared for man, then Frederick II rules because man must care for God. Otto II epitomizes a divine compassion for the sorry state of man. Frederick II rules because man may only enjoy the divine through the intervention of intermediaries. In this type of a King, we find Bracton's ideal... a man who must mediate between the exalted ideals of mankind and the debased facts of man's experience.

If the Christocentric King of the 11th century is bound to this world by mortality, the legal King of the 12th century is bound to this world by a celestial arrangement of law. For this model, the words of Justinian's Code - "greater than the imperium is the submission of the principate to the laws" (p. 104) - epitomizes rulership. The King is bound to the laws, not by divine or secular force, but by identity with Justice.

It is this new identity between power and justice which legitimizes the non-ecclesiastical state. I found the metaphor from Accursius to be especially powerful - "just as the priest, when imposing pentience, renders to each one what is right, so do we when we judge." (p. 121) The Christocentric King of the earlier era was a divine act of Mercy. By the time of Frederick II, Mercy was the provenance of Christ's shepherds in the clergy, but Justice was to be dispensed by the Father's appointed - the forces of the State. As the clergy could be trusted to channel Divine Mercy, the judiciary could be trusted to channel Divine Justice - "Melius est bonus rex quam bona lex"... "it is better to be ruled by a king than by the Law." (p. 135) (Nevermind that this flies in the face of the apparent point laid out in the scriptural Book of Kings.)

This allows the distinction between the King's power and his inspiration to gain conceptual clarity. Aquinus differentiates between his vis coactiva - his coercive power - and the Law of Nature's vis directiva (directive power) to which he too was subject. (p. 136) On the one hand, this new conception of Kinghood confers dreadful power to the King. If he traverses the laws of natural Justice, his power shall remain unchecked - it flows from the structure of the world rather than the compassion of God. On the other hand, it undermines the King's temporal authority to the extent that his very Kingship is dependent upon his conformity with the divine Justice that raises him up. "In the Law-cenetered era... the Prince no longer was 'god by grace'" (p. 141) - on the one hand, his power was an arbitrary fact, but his authority has become dependent upon the judgment of men rather than the will of God.

And that's where E.K. delivers us unto the hands of Bracton - a truly challenging philosopher of Kingship. Because it's late, I'll save my discussion of Bracton for later. Though I'll share a passage emailed to me by my professor at the start of this entire enquiry:

Bracton, the early English treatise writer wrote a famous, particularly fraught passage in De Legibus et Consuetudinibus Angliae in the 13th century.

"The king has no equal within his realm, nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king, for there is no rex where will rules rather than lex. Since he is the vicar of God, there ought to be no one in his kingdom who surpasses him in the doing of justice, but he ought to be the last, or almost so, to receive it, when he is plaintiff. If it is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act; if he does not, it is punishment enough for him that he await God's vengeance. No one may presume to question his acts, much less contravene them."

E.K has walked us to Bracton's doorstep of analysis. Our King is not a ruler by the proactive Grace of God, but rather by the necessity of society. We may pray that he subjects himself to the rule of Justice, but one can't rely upon God to hold the King to account within the boundaries of this world, and one cannot resist the King's temporal power within this world's confines.

Reading Notes: Blackstone, Ch. 3

"Our laws, said Lord Bacon, are mixed as our language: and as our language is so much the richer, the laws are the more complete." (p. 48)

"The only method of proving that this or that maxim is a rule of the common law, is by showing that it has been always the custom to observe it." (p. 51)

"Three points to consider in the construction of all remedial statutes; the old law; the mischeif; and the remedy" (p. 64)

"There are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law." (p. 67)

Reading Notes and Excerpts from Blackstone - Ch. 2

Ch. II: "A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists." (p. 29)

"[The Creator] has graciously reduced the role of obedience to this one paternal precept, 'that man should pursue his own true and substantial happiness.' This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tneds to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it." (p. 31)

"Undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law." (p. 31)

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these." (p. 32)

"If man were to live in a state of nature, unconnected with other individuals, there wouldbe no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal" (p. 32)

"A third kind of law [arises] to regulate this mutual intercourse called 'the law of nations': which, as none of these states will acknowledge a superiority in the other, cannot be dicated by either; but depends entirely upon the rules of natural law, or upon mutual copacts, treaties, leagues, and agreements between thseseveral communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject." (p. 32)

"Municipal law...is probably defined to be 'a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.'" (p. 33)

Elements of a rule (p. 33): "permanency, uniformity, and universality."

Municipal law: Civil not moral (pp. 33-34). Must be prescribed - i.e. notice provided. Basic critique of ex post facto legislation.

"Municipal law is 'a rule of civil conduct prescribed by the supreme power in a state'. [...] Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other." (p. 35)

Sorry, Locke: "This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted." (p. 35)

"the original contract of society [...] the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community" (p. 35)

"As all the members which compose this society were naturally equal, in whose hands are the reins of government to be entrusted? ... in such persons, in whom those qualities are most likely to be found ... the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty." (p. 36)

"In all [forms of government there must be] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside." (p. 36)

Cute: "Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit." (p. 37)

"With us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy." (pp. 37-8)

"Here then is lodged the sovereignty of the British constitution; [...] FIf the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristorcracy or democracy; and so want two of the three principal ingredients of good polity." (p. 38)

"Inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law." (p. 39)

Four elements of a law: declaratory (establish rights and wrongs), directory (instruct conformity), remedial (recovery of rights or restitution of wrongs), and sanction (penalties incurred by public wrongs or failure of duty). (p. 40)

"The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded." (p. 41)

"The alternative is offered to every man; 'either abstain from this, or submit to such a penalty': and his conscience will be clear, whichever side of the alternative he things proper to embrace." (p. 42)

Discursus on rules of construction:

1. Words understood in most usual and known sense... i.e., general and popular use. Ergo, law prohibiting "lay hands" on priest includes use of weapon.
   
   
2. If still unclear, resort to context. Thus, preamble as aid of construction. Cross-statue comparisos.
   
   
3. Always interpret words as relating to the subject matter at hand. Thus, prohibition against priests purchasing "provisions" from Pope surely shan't signify sustenance instead of see's beneficences.
   
   
4. If words seem absurd if literally understood, we must bend their meaning in accord with reason. Thus: "whoever drew blood in the streets should be punished with the utmost severity,' was held after a long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit."
   
   
5. Lastly, consider the reason and spirit of the law... the cause which moved the legislator to enact it. "For when the reason ceases, the law ought likewise to cease with it." (wow!) "There was a law, that those in a storm forsook the ship, should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the shiop, except only one sick passenger, who by reason of his deasease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was to give encouragement to such as should venture their lives to save the vessel: but this is a merit wheich he could never pretned to, who neither staid in the ship upon that account, nor contributed any thing to its possession." [Geoff: Though, I must say, by the rule of natural justice, I'd think the guy deserves the ship. He was left to die by his companions, and for bearing such an enormous risk of death, it seems not unjust that he should reap extraordinary rewards as a consequence of extraordinary fortune.]
   
   "Equity thus depending, essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law." [Haven't we done this? -- G.] "Law without equity, though hard and disagreeable, is much more desirable for the common good, than equity without law."
   
   

A bit of a jumble

My response to august:

You bring up a lot of points I'd like to address (or richochet off of)... and in addition, I've been plowing through the book at a relatively quick pace (I'm already into Ch. V, somewhere around p. 210).

For clarity of organization, I'll probably discuss my responses here, and open a new sub-thread dealing with Ch. III... though I'm especially eager to get into Kantorowicz' discussion of Bracton...

First, you mentioned in your opening post that you'd provide a few "sidebars" about our author's biography. As a general rule, I find biographies of artists, thinkers and writers to be tedious analytic distractions. (Emerson: "Our age is retrospective. It builds the sepulchers of our Fathers. It writes histories, biographies, and criticisms." (spit that last word out with especial contempt)) But, after a close study of the footnotes, I'm beginning to wonder what the deal is with "H. Kantorowicz" - a historian who seems to have trudged through the same subjects as E. Kantorowicz, and of whose work E. has many interesting and critical things to say. Is this work the crowning product of a dynastic endeavor? Are there patria issues lurking in this text that I should be sensitive to? I'm ready to hear your sidebar now... in fact, my curiousity is positively piqued.

Second, I want to focus in on your own language for a moment. You talk about the corporeal nature of the political abstractions discussed by Kantorowicz and frequently use the word "image" to describe his project. It reminds me of a long-ago discussion with TheQuietMan, that took a rather personal turn. Rather than rehash its merits, I was trying to argue that the medieval characteristics of art and imagery pitch towards a very different aesthetic ideal than the post-Renaissance trend of accurate representation. There's a strong work I dimly recall about Medieval Imagism and Memory (Mary Carruthers). I'm also surprised by looking again at the artworks analyzed in the back of Kantorowicz's book, how strikingly good at rendering complex abstractions medieval artwork was. When you compare a modern flow chart to a medieval manuscript, you come away feeling like we're a culture of mental midgets in the realm of balancing abstract thoughts.

Take the drawing of Otto II: in which his sacramental parts, those anointed at his coronation, reach beyond the tabernacle curtain, into the coelum of Godhood, while his mundane parts rest below the curtain, upon the Throne of Earth. In my opinion, the artwork of the medieval period represents a highly developed imagistic vocabulary, whose virtues are regrettably lost to a generation that too-often measures medieval work by its failure to live up to modern aesthetic ideals rather than its success at accomplishing medieval objectives. I can think of several interesting branches related to that observation. To what extent is E.K's authorial achievement (it's palpable imagism) facilitated by his deep study of medieval iconography? In what senses do the Chinese language of symbols and images, with which you're familiar, compare to those of medieval Europe? If medieval thought represented a thoroughly different trajectory from Greco-Roman rationalism (and I suspect it did), might we better be able to comprehend our post-modern world with a self-conscious medievalism? Was the Enlightenment as much a culturally destructive iconoclasm as its predecessor in Late Antiquity?

Third, I'm excited to get the topic of ritual in the modern experience. Just last night I was at a ball game. I was struck by how demeaning some folks feel it can be to engage in "civic liturgy" - the honoring of the flag through a well-defined ritual practice. I, of course, have my own issues about liturgical propriety and flags. You say that the modern age may be experiencing a failure of imagination with regards to sovereignty. You express an interest in identifying "kinks." To build off that, I'd like to throw out three conceptions for looking at the overlapping folds of sovereignty:

1. Conceptual: In the American system, our Constitution lays out a pattern of sovereignty that appears to be a cascade of powers. At the "top" of the system, we find a federal government, imbued with an enumerated list of finite but supreme powers. Below this stratum, we find a system of co-equal "subordinate sovereigns" identified as states. The final locus of constitutional sovereignty is rather vaguely defined - "the people" - both the ultimate source of legitimacy for sovereign institutions, yet a group whose sovereign powers are defined exclusively by negativing state powers. Thus, "the people" have rights, which are mostly defined as an immunity to state powers over certain dimensions of private and public life.
   
   As if this system weren't incoherent enough from it's outset... we also have several unresolved fonts of sovereign authority. Where are we to place "Constitutional sovereignty" - the ultimate authority of a piece of text, from which the sovereign powers of the defined entities emerge?
   
   What are we to make of "The Law of Nations" - an idea which had much greater currency among the founding generation than it does today? Under international law, a system of which our nation was an avid participant until quite recently, certain practices could become proscribed by the development of opinion juris - that is, by the common custom of civilized nations. The Constitution confers power upon Congress to "define and punish ... Offences against the Law of Nations." And it grants the judicial power to "all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" (a somewhat controversial provision given the current battles over the Geneva Convention's proper scope). What is the relationship of the American system to this international web of sovereignties?
   
   What about the "Natural Law?" For much of Western history, an animating conception of law is that it's merely an earthly instantiation of a more perfect celstial system. Only within the last century has American jurisprudence moved away from such a belief. But, the founding paradigms of our liberal state - especially social contractarian thought and the "right of revolution" - deeply rely the viability of an external measure of righteousness by which law is to be judged.
   
   
2. Space: In the medieval system, spaces divide into three kinds (though all are merely an exalted species of property)... we have the ecclesiastical holdings, the imperial holdings, and private space. The first two are notable by their indefeasibility - they cannot be transferred, for neither the Church nor the Empire is empowered to diminish its own estate.
   
   In the contemporary Anglo-American tradition, there are similar issues of space, though I can't clearly delineate them. What does the odd "sovereignty" of a tribal reservation imply about power over space? What about the sacramental character of a courtroom's interior, with its peculiar rituals? The unique protections of the home as against the pattern of rights controlling within the public realm? Do we have a meaningful spatial comprehension of sovereignty? (doesn't Gitmo suggest we do? Or does it suggest we don't?)
   
   
3. Time: I have less to say on this one, though we should eventually broach E.K's discussion of Nullum tempus currit contra regem ("Time runneth not against the king."), pp. 164-65. American history is often described as a sequence of "constitutional moments" in which sovereignty itself is radically re-defined. The first of these is the founding itself. The Reconstruction Amendments are considered the second such moment. And the New Deal is generally believed to be the third. Obviously, the problem of tradition across time marked by radical breaks is a thorny one. On the one hand, legal fictions like the various "Holy Roman Empires" of Europe suggest a sempiternity to sovereign units which transcends the radical disjunctures of revolutions (contemporary 11th Amendment jurisprudence, likewise). On the other hand, that sempiternity itself is occasionally overthrown and castrated by emergent "new sovereignties" - from France's acquisition of sovereignty "by prescription" against the Roman Empire (p. 183, n. 283... an astonishing passage: "The prescription of 100 years against the empire must have been common knowledge by the end of the 13th century, because the French use it to prove France's independence of the empire by right of prescription") to the constitution of American states which acquire partial sovereignty as a function of "independence" - thus, seemingly impermissibly dividing the prerogatives of traditional sovereignty.
   

I'll call this post to a rest. Hopefully it's responsive and productive? I hope to get more explicitly textual in a subsequent post. I'm pretty impressed by the book's architecture... and though it doesn't get really fun for me until we get to Bracton, his prefatory discussions of High Medieval political theory lay a powerful foundation.

More on Kantorowicz

Here's august's follow-on entries to our discussion of The King's Two Bodies. They're interspersed with the demands of jury duty... I'm working on a response (and have been plowing through the text...)

august:

I have fifteen minutes before I have to dash off to (gasp) jury duty, which should give me lots of reading time but very little internet time. Which is too bad, because I'm finding I have enormous amounts to say. You've raised important issues about the book (I particularly want to come to the weakness of the king vis-a-vis the King -- the capitalization being the most economic way of distinguishing the two). I also want to talk about my own research. But because I have fifteen minutes, I'm just going to talk about the conference I went to over the weekend. It concerned the Wutai complex of mountains, an area long associated with Manjusri , who supposedly gained enlightentment there.

I'm thinking about the area because, among other things, eighteenth-century Chinese emperors claimed to be reincarnations of Manjusri. This image probably appealed to Buddhist constituencies of the empire, and it also appears to have faciliated a number of rituals meant to bring long life to the imperial house.

Several quick points. First, there was nothing like a trinitarian, or even dualist, way of dealing with this image of the emperor. In other images, emperors would be depicted as Confucian Literati, and wearing that hat they would write scripts denouncing Buddhism. There was a simultaneity of imperial roles that did not require each role to be commensurate with the others. Contrast the examples provided, where king and King have a complex relationship within a single man, rather tragically so in the case of Richard II.

The obvious answer is that the King's Two Bodies is based on centuries of theological bickering over the trinity - but I think it says something else about the corporealness of the images Kantorowicz shows us. Power is naturalized in bodies, and the metaphor of the body is a central means of making different claims of sovereignty --- over oneself, over rival claimants, and over the body politic.

Mt. Wutai is also interesting because it is a tricky little zone of sovereignty. There are different Buddhist sects with temple complexes there, and the Dalai Lama turns out to have been an important figure. The area was exceptional in the empire -- it was firmly located within China proper, yet the monks representing the area had to obey certain diplomatic niceties usual reserved for distant monarchs (I could explain these ceremonies, but it's a long story). In short, the complex was a little bit like an Indian reservation -- a kink in what one might otherwise think of as a seemless web of sovereignty.

I've been wondering about such kinks. In the U.S., of course, the Trail of Tears was one way we worked out such things. In Kantorowicz, I'm wondering ways different visions of the King's Two Bodies might have been articulated in space.

Very quickly on the weakness of the king (as opposed to the King): I was reading an essay by Lawrence Wechsler (worth checking out -- it's about a historian of the Law of War who serves as a consultant to both the war crimes trial of the former Yugoslavia and to a production of Shakespeare). It's in his collection Vermeer in Bosnia. One of the points is that there was a complicated medieval law of war -- basically a chivaric code -- that did not break down until the crusades, and that remained as a remembered ideal long after. I think there was a tangential point to be made about regicide -- that in the French Revolution, killing the king and queen was less shocking than putting them on trial, which simply seemed not possible, some conjuring of law akin to Gonzales trying to talk about habeas corpus -- you just get a look on your face like -- hunh?

At any rate, these bodies, zones, territories, etc. were thought to make up a polity. That seems to me fully as mystic a fiction as any of the Christological images of the King on Ottonian bibles. "Sovereignty" is itself a tricky term in the way it simultaneously implies the person of the monarch, the borders of an area, and the collective governance of that area. Communicating such complicated relationships in an image (itself rather laden with metaphor) seems to me the work of the King's Two Bodies.

I'm going to try to find time later this afternoon to respond more directly to the points you raised, and also to say a little more about my own work. I'm amazed at how robust this work is, how much it gets me thinking every time I pick it up.

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August's Second Response:
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Anyway, all I was saying was that the king barely exists as long as there's a King around, so Richard II, stripped of being King, hasn't got a lot left.

You asked about my own academic interests. I work on the rebuilding of a city that was destroyed in an enormous (Christianity-inspired) rebellion. The religious nature of the rebellion meant that those rebuilding the city were especially concerned with religious issues. I'm particularly interested in the reestablishment of state ritual practices.

Chinese officials were required by law to make offerings to a set pantheon of gods and moral exemplars. Imperial statutes dictated the list of figures venerated, the items presented as offerings, the ranks of officials taking part, and the liturgy of the ceremonies. These rituals changed over the course of the nineteenth century.

I argue that shifts in ritual practice demonstrate an expansion of political participation in the following ways:

1. More people deliberate and have a voice in what gods and exemplars should receive offerings

2. More people (and in particular, more people who are not officials) take part in the rituals

3. More and more gods and exemplars are included in the imperial pantheon.

This last point is key. At the beginning of the nineteenth century, the emperor is the embodiment of the state -- the strength of the state is said to rest on his personal virtue, and this view is enacted and reproduced in ritual. In the wake of the rebellion I study, thousands and thousands of people who died defending the dynasty get incorporated into the state cult of rituals. As a result, key areas of the city that I study are devoted to the care of the souls of these dead figures. The strength of the state now appears to rely on their actions and virtues, rather than those of the emperor.

They are not yet citizens, but the rituals and language employed would later be used by republican governments to express the idea of nation -- citizen as opposed to ruler-subject.

In broader terms, I argue that the nineteenth century was an age of utopian visions in China -- that contending groups advocated different ideas about the polity. In each case, the polity rested on a particular way of looking at the cosmos. The relationship between cosmos and polity was displayed and enacted in ritual, hence the particular importance of ritual practices to the running of the state. The shifts I identify were not simply a transition from empire to nation-state, but rather creative improvisation of new alternatives, roads not taken that have been ignored by folks more interested in the fall of the dynasty or the rise of nationalism.

I'm particularly interested in how ritual (and other, Kantorowicz-like, representations) has power in a given place -- how particular groups might make local use of images or practices that seem to have a national audience. In the case of the King's Two Bodies, a similar set of questions might include: does the idea show up in, for example, the construction of buildings. Do different groups favor different interpretations of the relationship between King and king?

You are right that we both have contemporary concerns as well. Democracy seems to me to be under threat from a failure of imagination as much as a failure of institutions. People don't seem to get (or do get, and are powerless to do anything about) what, for example, Gitmo means as an exercise of sovereignty.

Gotta go again. Sorry this is choppy. Hope you can follow. I'm finding I have a lot to say -- feel free to chime in with whatever. I hope later on to dig a little deeper into K's text.

talk to you soon.

My entry

Ummm... I'm thinking I don't want to be mid-conversation on the Fray come May 31st. So, I'll store Round #1 here:

August's opening post:

Kantorowicz is a writer who changed the way I thought about law. Granted, when I first read him as an undergraduate, my thoughts on the subject were pretty naïve, but I basically considered law to be a set of rules. Kantorowicz showed that it could be much more – a politically charged way of conceiving the world.

I think we are interested in a similar kind of problem – what happened to the unique power of monarchs? Kantorowicz's book helps define that power as a combination of mortal and immortal authority – the first being the result of the physical person of the king, the second reflecting the state itself (which, because it does not die, is in some way Christ-like). For me, the largest question (and the one that seems closest to your work) is, how do we move from this social arrangement of monarchs and subjects to one of nations and citizens?

The King's Two Bodies is probably most helpful on the first part of that question. It is a work, the author tells us, of "political theology." I'll have more to say about the concept later, but basically it means that there is belief ("fiction" in the author's words) at the very center of politics. The problem of conceptualizing the world is thus simultaneously a problem of social organization.

I study government rituals of the Qing Dynasty (1644-1911) in order to get at some of these issues. To me, The King's Two Bodies is mainly a guide to how a good historian pins down an amorphous concept. But it's also a manual of the ways states can depict and enact relationships of power.

At any rate, I propose we read the Introduction and Sections 1 and 2 (pp. 3-41 in my edition) in the next week or so. If I have time, I'll post a couple of sidebars on Kantorowicz's biography and on the genesis of the phrase "political theology."

My response:

I'd like to begin with a rephrase of the two questions you pose in your own introduction. You've asked what happened to the power of the monarch, and how have we transitioned from kings and subjects to nations and citizens. If I might reformulate the opening question, I would put it thusly:

What is the power of the sovereign and where may it lie?

I prefer this formulation, because I'm afraid to beg the question of the King's disappearance. For, one thing which has immediatley become apparent from my reacquaintance with this much of Kantorowicz and my outside research, I've already discovered that the question of the King's twin-ship is more complicated than I'd believed.

On the one hand, the King's "body natural" appears to be less than I'd realized. Whether it be Charles I's treason against his own Crown, or the nonage of Edward VI, the King's physical body seems to be a rather debased and unenviable thing. I was struck with great force by the following passage from Shakespeare's Richard II (p. 30):

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 the 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 moarchize, be feared, and kill with looks,
Infusing him with self and vain conceit,
As if the flesh which walls about our life,
Were brass impregnable: and humoured thus,
Comes at the last, and with a little pin
Bores through his castle wall, and farewell king!

Unfortunately, I don't have the text at hand, but it strikes me as astonishingly similar to a speech delivered by James I to his Star Chamber, in which he demands that his body be considered no different than any other subject, equally bound by the laws of his mystical Kingdom.

If the twinship of the King is rooted in the corpus mysticum of the Christian community - then the body of the King seems one Christologically debased. As a legal construct, it seems far weaker than I realized... less than fully vested with even the basic rights of English subjecthood. Needless to say, if such be the state of the doctrine, its uses for my ashamedly prosaic purposes might be fewer than suspected.

But - this notion of "twinship" infuses the Anglo-American legal tradition. The division between the person and his legal personality is an engine which drives our law forward. How can a man sue in tort after his own demise? Why, he lives on in the person of an estate, with a duly appointed executor... who may exercise his rights directly under law, as though the man himself had survived his death.

Kantorowicz's extensive footnote (#9, pp. 11-12) about the sacramental nature of coronation was fascinating to me:

"If the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto." [... This doctrine is in fact the secularization of the purging powers of the sacraments.

Not only is this consistent with a Catholic conception of office-holding (in which the priest's clerical office is untainted by the fleshly sins of its officeholder)... it's equally consistent with the notion of American citizenship. Under the Immigration Laws, non-citizens do not enjoy the security of their residence within this nation. If one commits a serious felony, contracts a serious disease, or even ascribes to the wrong doctrine (joining the Communist party has until only recently been a deportable offense)... one may face immediate inadmissibility, and in some cases deportability. Actions which would barely tarnish the reputation of an American citizen may subject the resident alien to immediate ejectment from our political community. But the process of naturalization "wipes the slate clean." A naturalized citizen is no less a citizen than those of us who hold it as a birthright. Upon naturalization, the new citizen obtains immediate and retroactive relief in a manner that his fellow non-citizens do not enjoy. One can be deported decades after the fact for having merely been inadmissible at the time of entry (say, for having been a Communist in the 50s). But once naturalized, the former alien can be as abysmal a member of our body politic as you or I. He shall move beyond the reach of the laws to which he was formerly subject. In this sense, nationalization is much like coronation, which in turn is much like baptism.

Another everyday manifestation of this mythology appears in the doctrine of "qualified immunity." When an agent of the government violates the law, he may be sued as an individual, but not as an agent of the government. This is why you see captions like Rasul v. Bush or Padilla v. Rumsfeld. The analytic theory is that when the actions of an officeholder exceed his lawful authority, he ceases to retain the immunity of the sovereign. The man can be held to account for the lawlessness of his actions, because he cannot be anything other than a man before the law when his actions have violated it. If a President cannot lawfully hold a suspect indefinitely without charges, then it is George W. Bush who has done so, rather than the U.S. President. To the extent that these doctrines arise from a political theology, we may call them "analytic mysticism."

In his introduction, Kantorowicz is fairly dismissive of Maitland's analytical criticism of divine Kingship. I hope to interrogate the text, as we proceed, regarding the degree of justice it gives to a rival conception within the Anglo tradition. If the English system has a genesis myth, I'd nominate the Battle of Hastings for the prize. At that historical moment, we witness the fusion of the Roman-derived Norman kindom with a wildly different native Anglo-Saxon tradition. I can't speak to Maitland, but when I discovered a 19th century author having analytic fun with the King's doubled-body, he rested his argument in history rather than logic - in an alternative Anglo-Saxon tradition of "king as highest wergeld."

To what degree are the British and American traditions driven by the engine of discordant harmonies? Of a Church which is somehow both Catholic and Protestant. Of a sovereign which is somehow both parliamentary and monarchic. Of a people who are both subject and free. The King's doubled body may be a dichotomy within a dichotomy. One question I'll be keeping eye on, is whether the move to a republic in fact represents a break with this tradition of sovereignty, or merely a refinement of it.

I eagerly look forward to this discussion, and especially how it relates to the context of your own studies. Though I'm likely to infuse it with constant reference to legalisms, I think what may be at stake for us both is in fact a very personal question - what does it mean to be an American... a personality constituting and constituted by a political system of rituals and laws.

Investigations

So, spent some quality time in the stacks yesterday. Stained my pants with that weird brown dust that falls from 19th-century volumes. Still, found some good books and also spotted some misconceptions I may have made.

The most relevant cluster of books were in the section on English sovereignty (KD 4435). There's an 1820 volume from a guy named Chitty, entitled Prerogatives of the Crown, that summarizes the various rights inherent in the king and situates them in the metaphysical exchange between the political body and the natural body. To illustrate that these doctrines were never monoloithic, even when they were at their peak, there's a devastatingly arch critique of Chitty in a book from 1840 by Allen, entitled On the Royal Prerogative, that takes Chitty's analysis to task with sarcasm and clarity. He doesn't name Chitty, but his rebuttal is clearly framed with Chitty in mind. Also, he provides his own fascinating history of Anglo-Saxon kings... he notes that under the Anglo-Saxon wergeld system, the King possessed a "blood price" (the amount of restitution needed to atone for killing him) that was highest as a degree, but no different in kind, from what applied to everyone else. However, there was an exception to wergeld - you couldn't pay a blood price for killing your hlaford... a lord to whom you'd sworn allegiance. The argument seemed to be developing towards an analysis of Kingship as the "universal hlaford" replacing the requirements of wergeld with the notion of treason.

Also, it begins to look like Francis Bacon was the John Yoo of his day. There's a lot of great material coming from Bacon about the King's plenary powers. Several citations that came up were his arguments on De rege inconsulto, De non procedendo reg inconsulto, and the "Essay of Judicature." Also, James I seems to have had a bit of the Bush... "That which concerns the mystery of the King's Power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs to them that sit in the throne of God." Some relevant citations: 2 State Trials 765, 3 State Trials 37, James' Speeches to the Star Chamber as cited in a text identified as "Prothero".

Another book to investigation more fully is W. Harrison Moore, Act of State in English Law.

If an idea's merit can be assessed by the number of it's plagiarists, Blackstone's Commentaries were a very good idea indeed. Astonishing how many subsequent tomes of English law are explicitly modeled on the Blackstonian work (Broom, Jenks, Stephen). There's no way I can read all four volumes. But the following chapters seem most relevant:

Vol. I: Of the Rights of Persons

• Ch. 1: Of the Absolute Rights of Individuals
  
• Ch. 2: Of the Parliament
  
• Ch. 3: Of the King and his Title
  
• Ch. 4: Of the King's Family
  
• Ch. 6: King's Duties
  
• Ch. 7: King's Prerogatives
  
• Ch. 9: Subordinate Magistrates
  
• Ch. 10: The People whether Aliens, Denizens or Natives

Vol. II: Of the Rights of Things

• Ch. 27: Of Title by Prerogative and Forfeiture

Vol. III: Of Private Wrongs

• Ch. 17: Of Injuries Proceeding From or Affecting the Crown

Vol. IV: Of Public Wrongs

• Ch. 7: Of felonies injurious to the King's Prerogative
  
• Ch. 8: Of Praemunire
  

Now, what have I misunderstood? First off, "dignity" isn't what I thought it was - it's not some abstract concept... it's a very technical term-of-art applying to hereditary entitlement. There are entire volumes explaining the significance and structure of dignities. As such, the "dignitary" analysis of the Conservative majority becomes way suspect... how is it appropriate to use that approach at all within a republican context? Keep a sharp eye out for the different ways jurists use the term "dignity" - is there concept-conflation going on between the American sense of "dignity" (intrinsic worth) and the English one (aristocratic nobility)?

Also, there seems to be a lot of opinion that the King's body doesn't actually enjoy any special privileges. There's an exchange of properties... a metaphysical intermixing between the two. But the King's physical body appears not only to be an ordinary mortal frame... it appears to be on par with that of other subjects. Thus, the King's physical body is equally subordinate to the King's political identity as any other Englishman. However, because the intangible body is focused on the physical one, there are certain transformations that take place - not all favorable to the privileges of the King. For example, a King can't use the defense of nonage against an abusive contract. Since his regal body is immortal, it can't be underage. So if an infant king makes a contract, it isn't subject to recission on the basis of nonage. The King can't be a witness in a case of treason.

That's not to say that there aren't two tiers of kingly privilege. Just to say that the distinction may not be as clear cut as I suspected. Many of the "incidental prerogatives" of the King still seem to attach to his regal identity, even though their exercise isn't an "Act of State" embodying the full power of the sovereign. It's not clear that there is in fact a coherently intelligble cluster of personal rights to be derived from these principles, however.

Also, the question of Parliamentary sovereignty is a very tricky one. It'll be worth paying close attention to Blackstone's division of personal rights between Parliaments, individuals, and the King... and also what character of rights are deemed universal.

An Old Harvard Law Note

For some reason, my blogger dashboard is rendered in Chinese characters. Very odd.

Anyhow, I'm at UCLA right now, which means I can access this 1934 Harvard law note on the priority of state deposits in bank insolvencies. Good beans for me! (Harvard Law Review, Vol. 47, No. 5 (Mar., 1934), pp. 841-846.)

So, to summarize. At the time of the note's writing there was an active clash of principles among various state divisions about the right of a state to "jump to the head of line" in recovering assets against insolvent banks. To the extent the right was recognized, it was seen as an explicit inheritance by the state of the prerogatives of the King under the common law. As the author states, a reviewer of the case law "is apt to find a learned discussion of the English common law prior to the reign of James I." The article claims that analysis hinges upon a tricky distinction between the "incidental" and "political" rights of the King, and the cases uphoding the right seem to rest their logic on the conclusion that the right attaches to the political character of kingship (thus strengthening my contention that incidental prerogatives have not been seen as devolving by right to the state in the American legal tradition). Thus, it's worth exploring how courts so finding consider the import of an opposite ruling... what would it mean for an American republican government if the right were merely "incidental?" Do they take it for granted that it would then be impossible to uphold as a privilege of the state?

The trend away from recognizing the prerogative as one inherent in states is broadly informative, and probably bears a logical connection to the in rem exception to Article I sovereign immunity that's developed in the notes of the Hart & Wechsler supplement. But the action I'm most interested in really takes place in the note's feet.

Footnote 5:

Coke on Littleton: "... the king by his prerogative is to be preferred in payment of his duty or debt by his debtor before any subject, although the king's debt or duty be later; and the reason herof is that thesaurus regis est fundamentum belli, et firmamentum pacis." Co. Litt *131(b)

Footnote 7 is also relevant for bibliographic purposes.

The courts generally point out that although the right arose from the royal prerogative, it was not a prerogative incident to the person of the king, but rather one attaching to him in his political character as head of the state. See In the Matter of the Carnegie Trust Co., 206 N.Y. 390, 397, 99 N.E. 1096, 1099 (1912); United States Fid. & Guar. Co. v. Bramwell, 108 Ore. 261, 268-269, 217 Pac. 332 335 (1923)

According to Footnote 10, cases rejecting the right cite to Kent's Commentaries: I Kent's Comm. *247, 248.

Footnote 8 lists cases which have recognized the prerogative (since this is a matter of state law, there is very little federal precedent on these points):

Among the more recent cases recognizing the prerogative are: People v. Dime Sav. Bank, 350 Ill. 503, 183 N.E. 604 (1932); Ghingher v. Pearson, 168 Atl. 105 (Md. 1933); American Surety Col. of N.Y. v. Pearson, 146 Minn. 342, 178 N.W. 817 (1920); Aetna Acc. & Liab. Co. v. Miller, 54 Month. 377, 170 Pac. 760 (1918); In re South Philadelphia State Bank's Insolvency, 295 Pa. 433, 145 Atl. 520 (1929); Maryland Casualty Co. v. McConnell, 148 Tenn. 656, 257 S.W. 410 (1924); United States Fid. & Guar. Co. v. Central Trust Co., 95 W.Va. 458, 121 S.E. 430 (1924); and cf Northwestern Nat. Bank of Superior v. Superior, 103 Wis. 43, 79 N.W. 54 (1899).

Footnote 11 lists jurisdictions coming out the other direction n the basis of an extended common-law analysis:

Green v. Homewood, 222 Ala. 225, 131 So. 897 (1931); Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S.W. 1003 (1927); Board of County Comm'rs of San Miguel County v. McFerson, 90 Colo. 408, 9 Pac.(2d) 614 (1932); Lake Worth Inlet Dist. v. First Am. Bank & Trust Co., 97 Fla. 174, 120 So. 316 (1929); Fidelity & Deposit Co. of Md. v. Brucker, 183 N.E. 668 (Ind. 1933); Leach v. Commercial Sav. Bank, 205 Iowa 1154, 213 N.W. 517 (1927); Denny v. Thompson, 236 Ky. 714, 33 S.W.(2d) 670 (1930); Commonwealth v. Commissioner of Banks, 240 Mass. 244, 133 N.E. 625 (1922); Fry v. Equitable Trust Co., 264 Mich. 165, 249 N.W. 619 (1933); Potter v. Fidelity & Deposit Co. of Md., 101 miss. 823, 58 So. 713 (1912); In re Holland Banking Co., 313 Mo. 307, 281 S.W. 702 (1926); Freeholders of Middlesex County v. State Bank of New Brunswick, 29 N.J. Eq. 268 (1878), aff'd 30 N.J. Eq. 311 (1878); North Carolina Corp. Comm. v. Citizens' Bank & Trust Co.., 193 N.C. 513, 137 S.E. 587 (1927); Fidelity & Casualty Co. of N.Y. v. Union Sav. Bank Co., 119 Ohio St. 124, 162 N.E. 420 (1928); State v. Harris, 18 S.C.L. 598 (1832); United States Fid. & Guar. Co. v. Carter, 170 S.E. 764 (Va. 1933); cf Phillips v. Yates Center Nat. Bank, 98 Kan. 383, 158 Pac. 23 (1916); Columbia Bank & Trust Co. v. United States Fid. & Guar. Co., 33 Okla. 535, 126 Pac. 556 (1912)

There's no way I can read all those cases. But they're surely worthy of a skim both to get a sense of how they use the doctrinal development, the portability of the arguments advanced into the contemporary doctrinal landscape, and the relevant authorities upon which they rest.

There's also a cluster of cases which the author cites as holding "the prerogative is an indivisible sovereign right lodged only in that political body representative of all the people."

Aetna Casualty & Surety Co. v. Bramwell, 12 F.2d 307 (D. Ore. 1926) [I like this one because it's a) a federal court; and b) used the exact phrase "residuum of sovereignty" that I was so proud of -- G.], County of Glyn v. Brunswick Terminal Co., 101 Ga. 244, 28 S.E. 604 (1897); People ex rel. Nelson v. Home State Bank, 338 Ill. 179, 170 N.E. 205 (1930); Campion v. Village of Graceville, 181 Minn. 446, 232 N.W. 917 (1930); Bignell v. Cummins, 69 Mont. 294, 222 Pac. 797 (1923); Board of Comm'rs San Miguel County v. People's Bank & Trust Co., 34 N.M. 166, 279 Pac. 60 (1929); In re Northern Bank of N.Y., 212 N.Y. 608, 106 N.E. 749 (1914); United States Fid. & Guar. Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397 (1908); County Ct. of Calhoun County v. Matthews, 99 W. Va. 483, 129 S.E. 399 (1925).