Corpus Mysticum Regni - Incorporation and Consent in the Late

COKPOS MYSnCDM REGMI:
lilDOKPOKMKll AMD OOMSBliT
IN THE LftTE-^fflDIEVaL WlOfflt
A personal note by way of preface.
As senescence approaches
senility - asymptotically, one fondly hopes - the tendency for
everything one writes to become autobiographical strengthenes, and the
will to resist that tendency weakens.
And as it happens, the concept
with which this paper is concerned has its own rather embarrassed place
in
intellectual history.
When, not far short of half a century ago,
I began to read late-scholastic material - specifically the writings of
John Mair or Major (c. 1467-1550) - I was surprised and puzzled to find
the term corpus mysticum - mystical body - applied, not to the Church,
but to tatporal or civil society.
Nor did this usage occur only in
works that were avowedly theological.
I encountered it first in the
pages of Ifeir's 1521 Historia Mialoris Britanniae tam Angliae quam
Scotiae.
Now I was familiar enough with the originally Pauline
conception of the Church as the body of Christ and with the 'organic'
analogies to which that scriptural notion contributed.
As for the
addition of the adjective 'n^rstical' to the noun 'body', this too was
scanething with which, as a still recent convert to Roman Catholicism and
a fairly assiduous reader of papal encyclicals in the translations
provided by the Catholic Truth Society, I had seme familiarity.
Pius
XII's Mystici Corporis Christi would alone have sufficed to ensure
this.
Not, I think, until quite a few years later did I become aware of
Henri de Lubac's investigation of the process whereby the evolution of
both eucharistic and ecclesiological thought brought about the
terminological distinction between corpus verum and corpus mysticum.
The notion, in any case, that the term could be taken from its spiritual
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context and transferred to the temporal realm waS/ as I have said,
surprising to me - perhaps even slightly shocking.
I turned for guidabce to my medievalist colleagues in the
University of Aberdeen.
It is no adverse reflection upon them to say
that they were unable to help me to understand the provenalbe and
development of this usage.
He that should come, in this context, was -
I need hardly say - Walter Ullmann; and I am referring to a time when he
had not long left the garage for the Senior CcMmbination Room; when what
was to become that daunting list of publications had less than twenty
entries; and when the impact of his formidable scholarship had only
begun to be felt even in Cambridge.
What I have in mind in referring to
Ullmann here is not so much the question of his specific attention to
the corpus mysticum concept.
Indeed I have not yet checked to see
whether and to what extent it figures in his writings down to the
publication of Medieval Papalism in 1949.
Ify point is the more general
but fundamental one, that i t was Ullmann above all who alerted us, at
least in the Anglophone world where his career was to have its centre,
to the crucial importance, for medieval thought and practice, of law and
juristic concepts.
And it was clearly the jurists who were responsible
for the extended use of the notion of the mystical body.
By the time the texts in which I irst came across this usage were
being written, the process of extension had gone so far as to evoke a
contrary reaction.
The theologians, that is to say, and perhaps also
those canonistic jurists whose focus of interest lay in the Church
rather than in the temporal realm, were endeavoiuring to recapture the
term corpus mtysticum and restore its essentially spiritual connotation.
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3
A good illustration of this can be found in the work of Giovanni
Gozzadini - identified by Hubert Jedin as 'a conciliarist at the court
of Julius II'.
Gozzadini, writing in 1510 or 1511, states deliberately
that the Church 'is a mystical body, but not a body politic'
('Ecclesia... se habet... ut corpus misticum, non autem ut corpus
politician').
His point was, essentially, that a body politic was
fallible whereas the n^stical body of Christ was incapable of error.
Other writers at the same period, to
I qpir return l&tkr, were
A
arguing specifically in regard to the monarchical constitution of the
Church, denying that it - or perhaps any true monarchy - could, in
Fortescue's terminology, be a regimen or dominium which was both regale
and politicum.
I must now turn - not, you may well feel, before time - more
directly to 'the late-medieval realm'.
Here again, however, I yield to
the tenptation to insert a small piece of autobiography.
One of the
books which, in the late 1940s when my professional career began, was
most saninal for me was Charles Howard Mcllwain's Constitutionalism;
Ancient and Modem.
In the extensive annotation Mcllwain attached to
the printed text of those lectures, I had another of those first-time
encounters of which the effect was unpredictably profound and
prolonged.
Mcllwain's Holy Grail, so to speak, was t|^he seed or root
of the constitutionalism he saw as lying at the heart of the
Anglo—American political tradition.
In his quest he came upon an early
15th-century text partially reprinted in a late 16th-century volume.
This was the Contra rebelles regum suorum of Jean de Terrevermeille (or
Terre Rouge), written about 1419; and what caught Mcllwain's eye in the
text was Terrevermeille's use of the term status regni 'to express the
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idea conveyed by Cicero's constitutio or our "constitution"'.
This had
clear resonances with the terminology Mcllwain found in early
17th-century English discourse.
On the present occasion we might be
more struck by the parallelism with the term status Ecclesiae.
of these echoes/ however, is my immediate colfcem.
Neither
Not for many years
after first meeting Jean de Terreverroeille in the pages of Mcllwain was
I able to read his Tractatus in full.
discoveries.
When I did so, I made two crucial
The first was that the text known to ^fcIlwain (and also to
Ernst Kantorowicz when he wrote The King's Two Bodies) was indeed
incomplete, lacking the lengthy and crucial
third 'tractate'.
Secondly, I found that, for Terrevermeille (a jurist engaged in vehanent
polanical writing), the notion of the status reqni was inseparably
linked to the still more fundamental term corpus mysticum reqni, \(hich
in turn was understood by reference to the estates of the realm as the
means of expressing consent.
All this, however, proved to be some
considerable way from amounting to anything like straightforward
'constitutionalism'.
If one looks at the first of Terrevermeilie's three 'tractates',
what one finds, for present purposes, is in outline as follows.
The
title to the crown in such a realm as France was not in the strict or
patrimonial sense hereditary.
It is quasi-hereditary; and while the
king does of course rule by divine right, the divine sanction for his
title is mediated, and can only be mediated, through custom.
That
custonary law of the realm, in turn, owes its existence and authority
not (of course) to any legislative act by kings, past or present, but to
the consent of the comnunity.
The custom of quasi-hereditary
succession, he says, 'has been introduced by the consent of the three
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estates and of the wwhole civil or mystical body of the realm' (ex
consensu trium statuvmi/ et totius ciuilis siue mystici corporis reqni).
Here then we have, clecirly articulated, the use of the term corpus
mysticum as the interchangeable equivalent of corpus ciuile; the virtual
identification of this 'civil or mystical body' with the three estates;
and the ascription to it of a
basic consensual role in defining the
terms on which political authority in the realm is to be held.
however, both possible and necessary to go further.
It is,
Terrevermeille's
analysis, in this respect, culminates in his use of two additional and
closely interrelated terms.
One of these is populus; it is for the
populus, Terrevermeille argues, to appoint its kings and to establish
the rules of succession to the crown.
It is those rules that
constitute what he calls the status recmi et reipublicae - a status the
king has no right to change.
It is worth while pausing to enphasise the
crucial conjunction of reqnum and respublica; for the relationship
between the two was, after all, one of the focal points in late-medieval
and early-modem political debate.
If, however, in the first of Terrevermeille's three 'tractates',
we can interpret the corpus mysticum reqni as part of a
'constitutionalist' view of kingship, matters look rather different when
we turn to the third 'tractate' - the part of the book Mcllwain and
Kantorowicz did not see.
It is indeed in that third tractate that the
corpus mysticum concept is most prcaninent; but it is used so differently
as almost to make one ask whether it is the same concept at all.
Here
the polQuical thrust of Terrevermeille's attack on 'rebels' dominates
the text.
And here, accordingly, his concern is to emphasise, not the
authority of the n^rstical body over its head, but rather the
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predominant authority of the head over every individual member.
Perhaps
the most striking element in the rhetoric Terrevermeille deploys in this
connection is his use of another Pauline analogy: that of the
relationship between husband and wife.
'Just as a wife should cleave to
her husbandf' he declares/ 'so should every nQ^stic member cleave to his
supratie mystic head and obey him alone; otherwise he is faithless and a
fomicator.'
Another aspect of the argument/ however/ is more immediately
relevant here; and this brings me to the question of 'incorporation'.
When Terrevermeille examines the character and basis of the unity which
is essential to the corpus mysticum/ he turns from the similarities
between natural and 'mystic' bodies to a crucial difference between the
two categories.
A natural body or organism/ he argues/ is sustained
imione compaqinis.
That is not too easily translated; but the point is
perhaps clear enough when we note that/ according to Terrevermeille/ a
corpus mysticuTO/ in contrast/ is held together solum unione volvintatis only by a union of will.
Thus there is no inherent natural coherence
among any group of human beings: if they are to form a 'mystical body'
there must be a unifying act of will.
Nor is Terrevermeille/ at this
point/ in any doubt as to the location of the requisite will: 'in the
HQ^stical body of any kingdom or any other body of that kind/ the will
iS/ and ought to be/ only in the head.'
Without its head/ then/ without
the sustaining and unif^ng will of the king/ the realm would cease to
be a corpus mysticum.
Subj^t-to tharc will the duty of the members of
the 'mystical body'/ sharing coitanon goals/ is to 'carry out unanimously
the will of their head.'
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Terrevermeille's argument carries him even fmrther than this; for
he insists that the head actually gives life to the m^nbers of the
corpus mysticum.
The reference is, of course, neither to their natural
life as individual human beings nor to their supernatural life as
baptized Christians.
It is their corporate life - their esse mysticum
or esse politicum - that is 'infused' by and frcan the head.
In taking
this view, Terrevermeille is associating himself with a strongly marked
movement in 15th-century thought, which one could perhaps call
'infusionism'.
It is a view perhaps more commonly found in a
theological, and especially an ecclesiological context.
Here, however,
strikingly, we find it explicitly used in the civil or temporal realm to
proclaim the supreme and in some sense the life-giving role of the
ruler.
It should by now be clear, however, that there is a serious
difficulty in maintaining coherence in Terrevermeille's own argument.
In
the first 'tractate' he clearly envisages the corpus mysticum reqni
as an entity capable of subsisting independently of its head and indeed
endowed, in certain respects and in some circumstances, with superiority
over the head.
There are, in fact, measures that can be taken only by
that body, articulated as the populus embodied in the three estates; and
these measures determine the location of the headship at any given time.
This is not the place for an attenpt to resolve the contradiction.
I
have tried to do this elsewhere; and in any case the effort may be
scmiewhat wasted, in view of the fact that a polemical writer may be more
than ready to make use of divergent and even contradictory arguments to
support different parts of his case.
For present purposes what matters
is that the notion of the realm as a 'nystical body' could serve the
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interests of both 'constitutionalist' and 'absolutist' understandings of
the nature of kingship.
(I use these conventional labels with the
caveat that they are no more than flags of convenience nhich may do
little enough to identify correctly the ports of origin of the vessels
in question - let alone their destinations).
This said, it must in
fairness be added that Jean Barbey - the French scholar who has studied
Terrevermeille more intensively than anyone else - has considerable
justification for arguing that the Contra rebelles does a good deal
more for the Royalists than for the Roundheads.
The anachronistic
language, I hasten to say, is mine, not Barbey's; but he does indeed see
the interpretation of Terrevermeille in terms of 'constitutionalism' as
very much an 'Anglo-Saxon' distortion.
^ //
If we move south across the Pyrenees and forward a quarter of a
century or so, we find further evidence for the utility of the corpus
myusticum way of thinking to those concerned to uphold 'absolute' royal
power.
The Cortes of Castile and Leon, meeting at Olmedo in 1445,
proclaimed, against the rebels with whcxn battle was about to be joined,
L mi
that submissio^was d^ianded by 'divine and hvuman law, by all good
policy and natural reason, by every canon and civil law'.
This was
because 'the king... is head and heart and soul of the people, and they
are his members, naturally owing him all loyalty and fidelity and
subjection and obedience and reverence and service'.
A decade or so
later, writing during an interlude of con^rative calm amid the storms
of Castilian politics, Rodrigo Sanchez de Arevalo also used the concept
of the realm as a 'mystical body' in his Suna de la Politica.
here is less strident, the concerns more reflective.
The tone
We encounter again
what was called above the 'infusionist' view, with the king as head
coinnunicating 'movanent and influence' to all the members of the
mystical body.
And in his analysis of the parts of the realm that make
up the organic vhole, Arevalo is concerned to give due weight to all the
necessary elanents - not just to the 'royal and ruling' part, but to the
counselling and judicial parts and also to what he calls 'the fourth
[part], which is the populace' (que es popular).
Whether we have an
element of consent here or not may be debatable; but it is at least
clear that the king's power as head of the mystical body, while it is no
doubt absolute, is not arbitrary.
The king must respect established law
and shape his will to it: he must recognise that there are limits to his
authority.
Another ten years or so later, writing to defend Enrique IV of
Castile against a rebellion that had involved his deposition in effigy
in the estraordincuy episode knows as the Farce of Avila, Arevalo's
priorities were naturally rather different.
In the tract most
conveniently referred to as De oriqine et differentia principatus
imperialis et reqalis, he does not, it is true, deny that there are
limits to legitimate royal authority.
At the same time he is concerned
to deny to the barones et populus any right to enforce those limits by
taking action against a king supposed to have infringed them.
When he
invokes in this context the notion of the realm as a corpus mysticum, i t
is not, therefore, to establish the existence of any kind of corporate
authority belonging to the community of the realm as distinct from its
ruler.
In the natural order, he argues, 'the body cannot act in any way
upon the predominant soul'; nor, in another analogy, can matter act upon
form.'
Neither, accordingly, can the subject members of the mystical
body legitimately depose a soverign prince (principem daninantan).
This
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is not to say that the realm has no corporate capacity to act.
Such
action, however, can be taken only by an assanbly duly convened and
properly constituted to act on behalf of the community.
Here again,
accordingly, we have the assertion - as in Terrevermeille's first
'tractate' - of an essential connection between corporate life and
capacity on the one hand and, on the other, the role of the estates of
the realm.
While Arevalo and others grappled in Spain with the problans posed
by challenges to the authority of the head of the body politic, an
English conflict with which most of us are probably more familiar was
also yielding a harvest of ideology.
It lies beyond my brief here to
deal at length or in any detail with the ideas of Sir John Fortescue;
but it does seen necessary to say something to locate those ideas in
relation to my argument in this paper.
Can we in fact find a place for
the corpus mysticum concept in Fortescue's familiar yet far frcrni simple
theory of dominium politicum et regale?
The answer is that we can
indeed do so, even though Fortescue does not use the term 'mystical
body' at all frequently.
Not only, however, does he use it twice in an
im^rtant passage in his De laudibus lequm Anqlie; he uses it in the
context of a theory for which the notion of 'incorporation' was
particularly significant.
It is a theory which, for one thing, brings
out quite clearly the distinction between human groups in general and
those groups that have acquired corporate capacity.
The associative
life of human beings is based, for Fortescue (following Augustine, and
behind him Cicero) on inutual advantage and shared moral principles.
group so united, however, is not as such a body politic.
essentially, because it lacks a head.
A
And this is,
Fortescue says explicitly that
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•[i]n political terms a ccanraunity without a head has no corporate
capacity whatever. •
The question then is how headship and, with it,
corporate life are to be acquired.
According to Fortescue that question has two possible answers.
llborporation may be the work of a single conquering and iit^^rious will,
incising
unity upon those who are now the subjects of a ruler who
governs on the bast Is of dcaninium regale.
Consent ex txjst facto may
indeed confer legitimacy upon such a system; it is important not to
forget thilt dominium regale is, for Fortescue a valid and morally
respectable form of government.
It is not, however, the form he
prefers; and his preference for the dominium politicum et regale he saw
and admired - above all but not only - in England poses a question as to
the nature of incorporation in such societies.
I have suggested
elsewhere and suggest again now that in these cases incorporation is
really self-incorporation - bearing in mind, however, that the king or
king-designate is involved in the process together with those who will
thus become his subjects.
Accordingly, in recounting the 'Brutus'
legend in his Governance of England, Fortescue refers first to 'the
fellowshippe that Ccime into this lande with Brute', where we may take
the 'fellowshippe' to be an Augustinian or Ciceronian coetus hominvim,
not yet a body politic.
With Brutus designated as king-to be, however,
Fortescue goes on, 'thai and he upon this incorporacion, instituting,
and onynge [that is, uniting] of hen self into a reaume, ordenys the
scune reaiane to be rviled and justified by suche lawes as thai alle wolde
assent vnto.'
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That final phrase points/ of course/ across terrain as familiar as
it is important; for the role of assent or consent in lawmaking and
taxation is - I hardly need to remind you - at the very centre of
Fortescue's colbeption of, and his case for, dominium ix^liticum et
regale.
Here/ accordingly/ we have the clearest possible instance of
the conjulbture suggested in it^ title.
ll borporation and consent are
inseparably linked in Fortescue's theory of dcmiinium politicum et
regale; and if the association is less immediate in the case of
unqualified dominium regale, it is still the case that even there only
the eventual consent of the community can confer legitimacy upon the
incorporated realm.
In one way or the other, then, a coetus haninum becomes a corpus
mysticum.
The life of that body, however, the esse politicum (in
Terrevermeille's terminology) of its maribers is here understood
in a
way significantly different from that which we found in the Contra
rebelles.
There is, for Fortescue, no question of treating the head of
the mystical body as the source of its corporate life.
The primum
vivens for a natural organism lies not in the head but in the heart: it
is from the heart that the life-blood flows to every limb, every
member.
The equivalent source of life in a mystical body or body
politic is what Fortescue calls the intencio populi.
It is by the will
or purpose of the community that the body politic is 'nourished and
quickened'.
It is the people's concern for their own corporate
well-being that animates the body: this is the source, for head and
members alike, of provisionem politicam - the prudent organisation and
direction of their shared life for their common good.
We should perhaps
pause to remind ourselves briefly of the point that Fortescue sees law
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as the most essential means available for realising that provisionem
politicam.
It is noteworthy that the first act that allegedly followed
the 'incorporacion* of Brutus and his people is the establishment of a
process for lawmaking.
laudibus lequm Anglie
Laws (Fortescue suggests in the passage from De
I
have just
been examining) are the sinews of
the body politic; and by their strength the individual manbers ^o are
its 'the limbs and bones• will 'retain their own rights•.
None of this means, of course, that the king has ceased to be, as
head of the mystical body, an organ of crucial importance and
considerable authority.
One major function of the king's office,
however, is what Fortescue calls tutela; he is to protect the persons
and property of his subjects by means of a power which, Fortescue
suggests, he has received ultimately from the people who are its
beneficiaries.
It is especially noteworthy that in this passage
Fortescue does indeed use the metaphor of power as sanething that
flows.
The direction of the flow, however, is the reverse of what we
found in Terrevermeille's third 'tractate': for Fortescue, the king 'has
power that has flowed to him from the people' (potestatem a populo
effluxam ipse habet).
I hardly need to underline the inportance for
later political thinking of this way of envisaging the relationship
between ruler and subject.
Nor, of course, am I suggesting that there
is anything particularly original in the essential pattern of what
Fortescue says.
fAf
I do think, however, that writers like Terrevermeille,
Arevalo, and Fortescue - together with others for whc«i I cannot find
time and space here - capture for us at a particular late-medieval
mcanent in European history a set of ideas encapsulating much
monarchy had by then become.
of what
It was, rather obviously, a set from which
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i
sharply differing structur^, lx»th in theory and in practice, could be,
and were to be assaiibled.
To take that point a little further and to provide a conclusion to
this paper, I return to the early 16-century evidence with which I
began.
I quoted Giovanni Gozzadini's enphatic statement that the Church
was a itQrstical body but not a body politic, and suggested that other
writers at the time were equally concerned to reject attempts to
assimilate if not to equate ecclesiastical and civil society.
The
source of such anxiety was the persistence - and indeed the elaboration
- of arguments which did just that, in order to prove the subjection of
the papal monarchy to the corporate authority of the Church represented
in a general council.
A writer like John Mair - whom I also mentioned
at the ^tset - was drawing on the powerful conciliarist and Gallican
traditions of the university of Paris to prove that the polity of the
Church, while certainly reqalis or monarchical, was optima precisely
because
the authority of the pope was in the end a ministerial
authority subject to the ultimate supremacy of the council.
Papalist
opponents of this view were able to seize upon an inescapable difficulty
in the iitplied - and indeed frequently explicit - parallel drawn between
universal Church and particular realm.
Theologically speaking, it was
absolutely clear that papal authority (while it might indeed be subject
in certain extrane emergencies to conciliar control) was not based on
the consent of its subjects.
It was an authority that had been, in the
most direct sense, ordained and established by God, in the second person
of the Trinity, Jesus Christ, when he entrusted the power of the keys to
Peter.
Nor could the corporate life of Christians in the Church be
ascribed to any human act of incorporation: it was based on the
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sacrament of baptism and the infusion thereby of grace and the life of
the Holy Spirit.
That may suffice to elucidate the point made earlier - that
theologians and canon lawyers at this very late pre-Reformation medieval
moment were concerned to retrieve the essentially spiritual content of
the notion of a 'itQrstical body'.
One of the most/notiahle figures here
was Tcannaso de Vio, master-general of the Dcxninicans and later, as
Cardinal Cajetan, a notable opponent of Martin Luther.
Cajetan was so
eager to sharpen the division between the Church on the one hand and
tenparal or civil society on the other that he was prepared to concede,
not only that royal authority scxnetimes rested on consent, but that in
the last resort this was the basis of all royal authority.
This left
the papal monarchy uniquely endowed with authority directly ordained by
God, over a mystical body owing nothing to human will for its being and
activity.
This was of course a position unacceptable to conciliarists
in the Church,
More in^x^rtantly - for
conciliarism was by then a victa
causa - it was to be equally unpalatable, in regard to temporal
government, to those concerned to uphold the absolute power of kings.
In the 15th century there had at least been moments when papalists and
(if we may allow ourselves a debatable term) royalists could make canmon
cause against what could be represented, however iitplausibly, as a
•danocratic* attack.
Neither the post-conciliar papacy nor the papacy
of the Counter—Reformation was (to put it mildly) an easy or natural
ally of absolute monarchy outside the Church.
And if those on what we
may term the 'constitutionalist' side could still look to the notion of
the corpus mysticum along lines at least parallel to those adopted by
Fortescue, their opponents were to use that concept in ways Jean de
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Terrevermeille (of whom they had never heard) would have found both
recxDgnisable and acx:eptable.