![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
ABSTRACT
Quentin Skinner's breakthrough thesis in From Humanism to Hobbes is to trace the immediate context for Hobbes's treatment in Leviathan of the person of the state as artificial (the seat of power) to the parliamentary pamphlets produced since De cive (1642), and partly in response to it. If, instead of allowing Hobbes to metonymize the long history of the birth of the modern state – of which he was such an important part – we take Skinner's cue and treat him, more plausibly, as a theorist engaged in the constitutional debates that surrounded him, then it is incumbent on us to undertake a content analysis, not only of the parliamentary debates, but also of the case law, of his day. Hobbes is uniquely important, just because he did, fortuitously perhaps, arrive at a formulation of the ‘artificial person of the state' that has endured. The form in which it has endured, as ‘the office of the Crown’, is probably not due to Hobbes, but in spite of him. But because the Crown is, in some sense, the first principle of the unwritten constitution of the United Kingdom and of the Commonwealth, it is of considerable importance in the current constitutional crisis induced by Brexit.
Acknowledgements
First I would like to express enormous thanks to Quentin Skinner for engaging in a marvelous email correspondence on ‘the artificial person of the state’ over the summer of 2019, and for his kind email comments on this essay of 22 September 2019. I owe a lot to Luka Ribarevic, who in his email of 8 October 2019 went carefully through the arguments of his doctoral thesis, published in Croatian (Hobbesov moment, Zagreb 2016) on the mutual dependency of author/actor, represented/representative implicit in the Ciceronian courtroom model for Hobbes's ‘artificial person of the state', consistent with his materialist metaphysics. Also to Marko Simendic, for introducing me to his doctoral dissertation (2011), which argues along similar lines. Sincere thanks to Sean Fleming for making parallel arguments in terms of the structure of offices, and for his thoughtful email comments of 27 September 2019. These observations are very important for a study that lays such stress on legal process, statute, and case law for the provenance of Hobbes's ‘artificial person of the state'. My grateful thanks also to Jason Allen, Humboldt Post-Doctoral Fellow, in the Centre for British Studies at the Humboldt University, Berlin, for discussions of his work on the Crown, and for pioneering the Berlin Social Ontology Group, which introduced me to some of the now considerable literature on the subject. Warm thanks to Richard Whatmore for his encouragement of my project, and gracious tolerance of the length of this piece; and to John Pocock, for his forbearance in a written correspondence – August 26, 2019, where he politely disclaims any expertise in Hobbes on the ‘Artificial Person’ of the state; which, from the author of The Ancient Constitution and the Feudal Law, can only be taken as a form of dissembling or modest disavowal – a Cambridge trait I have noted before!
Disclosure statement
No potential conflict of interest was reported by the author.
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
1 Maitland, “The Crown as Corporation,” at 244, quoting from Pollock, 113.
2 Maitland, “The Corporation Sole,” citing Pollock, Contract, ed. 6, 107. In Maitland, Collected Papers, III, 131-46, at 131.
3 Maitland, “The Crown as Corporation”, III, at 244.
4 Professor Janet McLean of the University of Auckland Law School, who in her recent excellent book Searching for the State, begins chapter 3, ‘Sovereign, state and corporation: political theory and analytical jurisprudence’ with this citation from Maitland, ‘The Crown as Corporation’: ‘English lawyers were not good at work of this kind; they liked their persons to be real’. McLean references the works of both Skinner and Runciman.
5 For the classic account, see Kantorowicz, The King’s Two Bodies, chapter 7.2, “The Crown as Fiction,” 336–85. The Tudor doctrine was enshrined in Plowden, The Commentaries, held in the Hardwick Hall Library at 212 (see Talaska, The Hardwick Library, 106, listing item 1043. Plowdens Reportes. fol. [Edmund Plowdon, Les comentairies, ou les reportes … de dyuers cases. fol. London 1571.]).
6 My own exploration of the doctrine of ‘the king’s two bodies’ suggests its origins might not be European at all, but rather a product of Hamitic-Semitic animism, whereby multiple personae attributed first to the Egyptian Pharaoh, in the form of a Ka (soul), Ba (psyche), and (Akh) Transfigured Body after death, gradually became democratized and were considered attributes of all humans. My study takes its cue from a footnote in the Epilogue (497–8, n.6), of Kantorowicz’s study where he notes the Egyptian Middle Kingdom representations of the ‘Pharaoh and his Ka’. Not only is Kantorowicz, who cites the impeccable work of Arthur Darby Nock, right to note that ‘the Egyptian custom sporadically observed of entombing two statues of a dead officer: one attired with wig and loincloth, in his capacity of a royal officer; and the other one, bald and in a long garment, as the “man” that the dead was’; but he correctly notes also the ‘occasional double entombment of Egyptian kings’. On the basis of the work of Professor Lanny Bell, Director of the University of Chicago’s Luxor House, who also read Kantorowicz, it is now established that Luxor Temple was devoted to the Deification of the Pharaoh, a New Kingdom phenomenon; that its walls depict the birth of the Pharaoh and his immortal ‘other’ as a still-born twin; and that in the Graeco-Roman period (from which the Pharaonic temples still standing now date), the Romans kept a permanent embassy in Luxor temple, where they were able to observe the deification rights of the Pharaoh, of which the apotheosis of the Roman Emperor was a remarkable copy; and that in the Roman vestibule of Luxor Temple the ‘twin Augusti’, a representation of the Roman Emperor and his Genius, is still to be found. See Springborg, Royal Persons.
7 See Pollock and Maitland, The History of English Law before the Time of Edward I, I, 525. I am indebted for this Maitland citation, as for the following two, to George Garnett’s excellent “The Origins of the Crown,” at 171 n1.
8 Maitland, ‘The Crown as Corporation’, III, 257.
9 Their titles differ: ch. 2 is now, ‘Classical Rhetoric and the Personation of the State’; ch. 9, ‘Hobbes on Representation’; and ch. 12, ‘Hobbes and the Concept of the State’.
10 See Maitland, The Constitutional History of England, comprising lectures delivered during the Michaelmas term of 1887 and the Lent term of 1888 at the University of Cambridge, 418.
11 Skinner, “A Genealogy of the Modern State”.
12 See Brito Vieira, The Elements of Representation in Hobbes; Simendic, Hobbes on Persona; Douglass, “The Body Politic”; Fleming, “Two Faces of Personhood”; Ribarević, “Leviathan and Medieval”.
13 For discussion of the high degree of interaction and cooperation between the Norman Kingdom of Sicily and the Norman Kingdom of England, and the degree to which it facilitated the translation movement Arabic into Latin and the growth of mathematically based sciences, see Springborg, “Raylor’s Revisionist Humanist Hobbes,” Section 2: “The twelfth-century renaissance and the Norman kingdoms of England and Sicily,” 5–12.
14 For the voluminous literature on the Crown, which has grown exponentially since Brexit was foreshadowed, see especially Wade, “The Crown, Ministers and Officials”; Smith, The Invisible Crown; Saunders, “The Concept of the Crown”; and Jason Allen, “The Office of the Crown”; Dyzenhaus, “How Hobbes Met”; Dyzenhaus, “Hobbes's Constitutional Theory”; Dyzenhaus, “Hobbes on the Authority of Law”; Fox-Decent, Sovereignty's Promise; Twome The Veiled Sceptre. I am most grateful to Jason for discussions on the office of the crown.
15 The great exception is of course, J.G.A. Pocock who, in The Ancient Constitution and the Feudal Law, pioneered the study of legal discourse, noting the ‘discovery’ of English feudalism by seventeenth century common lawyers, and discussing Coke’s role vis-á-vis Hobbes. Recent essays which treat Hobbes’s theory of the state in the context of specific legal traditions, as well as case law, include Simendic, “Thomas Hobbes’s Person as Persona and ‘Intelligent Substance’”, who treats ‘Sutton’s Hospital Case’; Crosby, who in “Bushell’s Case and the Juror’s Soul”, discusses the landmark judgment of Hobbes’s friend Judge John Vaughan, as well as the much commented upon ‘Calvin’s Case’; Ribarević, “Leviathan and Medieval Universitas”, who treats the role of Canon Law in seventeenth century jurisprudence; Apeldoorn, “On the Person and Office of the Sovereign in Hobbes”, who also discusses ‘Calvin’s Case’; and Fleming, “The Two Faces of Personhood”; who understands Hobbes’s ‘artificial person’ in the context of the system of offices that the lawyers were addressing.
16 Lev., xvi, 3. My citations in this section and following, to Hobbes’s Leviathan are, unless otherwise noted, to the open access online edition: Thomas Hobbes, Hobbes’s Leviathan reprinted from the edition of 1651 with an Essay by the Late W.G. Pogson Smith.
17 Allen, in his excellent article, “The Office of the Crown,” 300, gives a short summary of what in this case social ontology means:
Applying some insights from social ontology, I argue that the King’s two bodies and the corporation sole are ways of expressing, albeit imperfectly, the idea that the Crown is an office separate from its officeholder. The concept of office can also be used to explain the nature of the ministers, Secretaries of State and civil servants who act in the Crown’s name and to explain their relationship to it. This, in turn, provides a framework for the rules of attributing actions to the Crown and liability for official wrongdoing.
18 See Fleming, “The Two Faces of Personhood,” at 13.
19 Skinner, “Hobbes and the Purely Artificial Person of the State,” at 3.
20 Runciman, “What Kind of Person is Hobbes’s State?”, at 268.
21 Pitkin, “Hobbes’s Concept of Representation – I,” at 331.
22 See Brito Vieira, The Elements of Representation in Hobbes, chapter 3, “Juridical Representation,” 157–8.
23 Boyer, “The Bridgebuilding Brotherhoods”.
24 Coke, First Institute, 24b as cited by Cromartie, “General Introduction,” xxxi.
25 Coke, First Institute, 97b cited by Cromartie, “General Introduction,” xxiii.
26 Coke’s judgment in the Court of the Exchequer, as reported from The Selected Writings of Sir Edward Coke. Part ten of the Reports, 371–2, Steve Shepherd, ed. Indianapolis, IN: Liberty Fund, 2009, online. Cited also by Holdsworth, “English Corporation Law in the Sixteenth and Seventeenth Centuries”, at 386.
27 See Makdisi, The Rise of Colleges and Gutas, Greek Thought, Arabic Culture, The Graeco-Arabic Translation Movement in Baghdad and Early ‘Abbasaid Society. See also Springborg, “Constitutionalism and Antiquity Transformation”, especially section 4, “Antiquity Transformation and Islamic Jurisprudence”, where I discuss the work of Makdisi and Gutas, upon whose scholarship I rely.
28 On English Inns of Courts, as translations of the charitable trusts (awqaf) founded for the teaching of Islamic jurisprudence, with associated caravanserai to house students, see Makdisi, “The Guild of Law in Medieval Legal History,” at 16–17.
29 Holdsworth, “English Corporation Law,” 386, citing 1682, K. B. 8 S. T., 1039, 1137.
30 Holdsworth, “English Corporation Law,” 387, citing 1682, K. B. 8 S. T., 1137-8.
31 Holdsworth, “English Corporation Law,” 387, citing I Blackstone, Commentaries, 476-7.
32 Holdsworth, “English Corporation Law,” 387, citing Continental Tyre and Rubber Co. v. Daimler [1915, C. A.] 1 K. B. 893, 916.
33 Baker, “Littleton [Lyttleton], Sir Thomas (d. 1481)”.
34 Baker, “Littleton,” citing Coke, Le Second Parte des Reportes, fol. 67. (Coke’s Reports, like predecessor works, was written in Law French, but translated.)
35 See Littré, “Thomas de Littleton.”
36 Littré, “Thomas de Littleton”.
37 Ibid.
38 Ibid.
39 Baker, “Littleton,” DNB online, citing Coke, Institutes, fol. 395.
40 See Springborg, “Hobbes, Civil Law, Liberty and the Elements of Law”.
41 Cromartie, “General Introduction,” xix.
42 See Campbell, “Thomas Hobbes and the Common Law,” 27.
43 See Bodleian Library, Aubrey MS 9, fol. 14. Cromartie, “General Introduction,” xx, notes that the ‘capital D perhaps suggests that the amanuensis believed “De Legibus” to be a title’.
44 Cromartie, “General Introduction,” xxvi, citing St German, Doctor and Student, 180.
45 Hobbes, Dialogue, 3–4/9, Cromartie, “General Introduction,” xxxii.
46 Coke, First Institute, 24b, Cromartie, “General Introduction,” xxxiii.
47 Hobbes, Dialogue, ed. Cromartie, 4–5/10.
48 Malcolm, “Hobbes, Sandys and the Virginia Company,” at 302–303, citing Hobbes’s Dialogue, 27.
49 Kantorowicz, The King’s Two Bodies, 305. See also Lee, Popular Sovereignty, 74, and Canning, “Corporation in the Political Thought of the Jurists of the Thirteenth and Fourteenth Centuries,” 9–32. Hobbes does use 'fictitia' to denote a category of persons, as both Sean Fleming (email 1 October 2019) and Luca Ribarevic (email 8 October 2019) have pointed out, but as Fleming notes, and I agree, he means 'fictitious' persons literally, and not the persona ficta of Innocent IV's understanding.
50 Maitland, “The Crown as Corporation,” 225.
51 Maitland, “The Corporation Sole,” 213–14.
52 Maitland, “The Corporation Sole,” 213–14. Maitland notes that the passage in question is not in the earliest editions of the Tenures, and that he believed ‘that we should be very rash if we ascribed them to Littleton’.
53 Maitland, “The Corporation Sole,” 212–13. Maitland notes that the passage in question is not in the earliest editions of the Tenures, and that he believed ‘that we should be very rash if we ascribed them to Littleton’.
54 Apeldoorn, “On the Person and Office of the Sovereign in Hobbes’ Leviathan”.
55 Apeldoorn, “Person and Office of the Sovereign,” 5 citing Behemoth (2009 edn), 244.
56 Apeldoorn, “Person and Office of the Sovereign,” 5, citing [Hyde] His Majesties Answer to a Printed Book 31.
57 Apeldoorn, “Person and Office of the Sovereign,” 5, citing Behemoth, (2009 edn.) 273, 297.
58 For the classic account, see Kantorowicz, The King’s Two Bodies, chapter 7.2, “The Crown as Fiction,” 336–85. The Tudor doctrine was enshrined in Plowden, The Commentaries, held in the Hardwick Hall Library at 212 (see Talaska, The Hardwick Library, 106, listing item 1043. Plowdens Reportes. fol. [Edmund Plowdon, Les comentairies, ou les reportes … de dyuers cases. fol. London 1571.]).
59 I am indebted to Apeldoorn, “Person and Office of the Sovereign,” 5–6, for the account of this case. Apeldoorn, 5, 12n, notes not only that volume 7 of Coke’s Reports was held in the Hardwick Hall Library (citing Talaska, The Hardwick Library, 78); but that Bacon’s accounts of the case in ‘A brief discourse touching the happy union of the kingdoms of England and Scotland’ and ‘Certain articles or considerations touching the union of England and Scotland’, were both included in Hardwick M.51, a collection of sixteen transcriptions of Bacon’s works. See Aubrey, “Brief Lives,” vol. 1, 331.
60 Apeldoorn, “Person and Office of the Sovereign,” 6, citing Coke, “Calvin’s Case,” 192; Bacon, Three Speeches, 43, and Kantorowicz, The King’s Two Bodies, 364–72.
61 Apeldoorn, “Person and Office of the Sovereign,” 6, citing Bonde, Salmasius His Buckler, 229, 233.
62 Skinner, Humanism to Hobbes, 38.
63 Skinner, Humanism to Hobbes, 39.
64 Ibid.
65 Parker, Observations Upon.
66 Skinner, Humanism to Hobbes, 40.
67 Skinner, “Representation,” 166–7, in From Humanism to Hobbes, 208. See section 6, below, ‘Skinner and Hobbes’s “Artificial Person of the State” Redux’.
68 See section 6, below, ‘Skinner and Hobbes’s “Artificial Person of the State” Redux’.
69 Fleming, “Two Faces of Personhood,” 11, citing Leviathan Malcolm edn, 2012 [1651]: XVI. 248.
70 Fleming, “Two Faces of Personhood,” 11, citing De cive, 1998 edn [1642]: VI.1a.
71 Fleming, “Two Faces of Personhood,” 11, citing Leviathan, Malcolm edn, 2012 [1651]: XVII. 352.
72 Fleming, “Two Faces of Personhood,” 11, citing Tuck, The Sleeping Sovereign, 100 and De cive, 1998 edn [1647]: VII.14.
73 Fleming, “Two Faces of Personhood,” 11, citing Leviathan Malcolm edn, 2012 [1651]: XIX. 290.
74 Fleming, “Two Faces of Personhood,” 12, citing Leviathan Malcolm edn, 2012 [1651]: XVI. 248–50.
75 Fleming, “Two Faces of Personhood,” 12, citing Leviathan Malcolm edn, 2012 [1651]: XXIII. 382.
76 Fleming, “Two Faces of Personhood,” 12, citing Leviathan Malcolm edn, 2012 [1651]: XXIII. 378.
77 Noel Malcolm in his fine article, “Hobbes, Sandys and the Virginia Company”, concludes, strangely to my mind, that Hobbes had little interest in politics. Malcolm’s Reason of State, Propaganda, and the Thirty Years’ War, a critical edition of Hobbes’s translation, most probably dating from 1627, of the Altera secretissima instructio, a pamphlet produced by a ‘secretary, counsellor, or protégé of one of the members of the Imperial Council’ in Vienna in late July 1626, offering spurious advice to embarrass the Protestant Frederick V, Elector of the Palatinate, and brother-in-law of Charles I, would seem to be a super-political exercise. But we find Malcolm still insisting that Hobbes, like his patron, the Earl of Newcastle, displayed a ‘disdain for Parliamentary politics, distrust of foreign “enterprizes”, and distaste for the culture of political news’ (Malcolm, Reason of State, 88). In his long introductory essay constituting the first volume of his edition of Hobbes’s Leviathan (Malcolm, Thomas Hobbes, Leviathan), Malcolm still argues for Hobbes being more or less apolitical, and modestly disavows any knowledge of Hobbes’s involvement with political parties or factions – merely by being a member of the Virginia Company suggests this is unlikely! In my responses, (1) ‘A Very British Hobbes or a More European Hobbes? Review of Noel Malcolm’s Hobbes’s Leviathan’ and (2) ‘Hobbes, Donne, and the Virginia Company: Terra Nullius and “the Bulimia of Dominium”’, I try to prove the opposite.
78 Mason to Hobbes, Dec 10, 1622, Hobbes: The Correspondence, 1.3-4.
79 Malcolm, “Hobbes, Sandys,” 297, citing Mason to Hobbes, Dec 10, 1622, as reproduced in F. Toennies, “Contributions à 1'histoire de la pensée de Hobbes,” Archives de Philosophie, xii, cahier 2 (1936), p. 81 (Hobbes Correspondence, 1.3.).
80 Malcolm, “Hobbes, Sandys,” 297.
81 The reference is Bacon, The Advancement of Learning, 66. See the Wikipedia entry on Antiquarianism, https://en.wikipedia.org/wiki/Antiquarian, downloaded 30.8.19.
82 Alan Cromartie, “General Introduction,” xiv, citing Newcastle’s Advice to Charles II. See Slaughter, Ideology and Politics on the Eve of the Restoration, 24.
83 See Simendic, “Thomas Hobbes’s Person as Persona and ‘Intelligent Substance,’” at 153.
84 Simendic, “Hobbes’s Person,” 148, citing Cees Leijenhorst, The Mechanization of Aristoteliansm, the late Aristotelian Setting of Thomas Hobbes’ Natural Philosophy (Leiden: Brill, 2002). Simendic develops this notion further in his excellent doctoral dissertation, written under the supervision of Jon Parkin for the University of York (2011), Hobbes on Persona, Personation and Representation: Behind the Mask of Sovereignty, available online. See also Christine Chwaszcza, “The Seat of Sovereignty,” at 126, on Hobbes on ‘form and matter of the state’.
85 See, for instance, Patricia Springborg, “Hobbes’s Materialism and Epicurean Mechanism”.
86 Giglioni, “Phantasms of Reason and Shadows of Matter,” at 173.
87 Springborg, “Hobbes, Donne and the Virginia Company,” I have argued at length the case for Hobbes’s political acumen and experience, especially in section 6 (156–62) ‘Hobbes on Money, Commodities, Commerce, Commonwealth and Volatility’, including analysis of Leviathan, chapters xxii and xxiii in the context of Hobbes’s political experience of corporations, and particularly The Virginia Company.
88 But see Hoekstra, ‘The de facto Turn in Hobbes’s Political Philosophy,” 78, who first drew it to my attention. Hoekstra, 48n., in a nice piece of contextualism, notes that Hobbes’s likely source for this story is not in fact Livy or Plutarch, but Florus’ epitome of Roman history, book 1, contained in a dictation book used by Hobbes for his Cavendish charges which contains it in the Hardwick Hall Library, listed as Chatsworth MS DI.
89 See Cromartie’s excellent study, The Constitutionalist Revolution.
90 See esp. the long account in Kantorowicz, The King’s Two Bodies, ch. 7.2, “The Crown as Fiction,” 336–82; Garnett, “The Origins of the Crown”; and Miller, “The Position of the King in Bracton and Beaumanoir”.
91 Springborg, “Leviathan, the Christian Commonwealth Incorporated” (1976).
92 E.g. Skinner, “Thomas Hobbes and His Disciples in France and England”; and Skinner, “Conquest and Consent”.
93 Skinner, “Representation,” 166–7, in From Humanism to Hobbes, 208. On the constitutional theories of the 1640s, Skinner, in his comment on this review essay, singles out Henry Parker ‘(… on whom Hobbes is I think quite often commenting – knowing him through Bramhall’s page-by-page attack, I suppose)’ (Skinner to Springborg, email, 22.9.19).
94 This tract is published as Questions Relative to Hereditary Right by Alan Cromartie and Quentin Skinner, in the Clarendon Hobbes edition of Hobbes’s Complete Works, vol. 11: A Dialogue Between a Philosopher and a Student, Common Law.
95 See Springborg, “Introduction,” 19–254, to Thomas Hobbes, Historia Ecclesiastica, critical edition by Springborg, Patricia Stablein, and Paul Wilson, (Paris: Honoré Champion 2008), esp. 24–5 and 79. See also Springborg, “The Politics of Hobbes’s Historia Ecclesiastica”.
96 See the title page of the MS of Hobbes’s Historia Ecclesiastica, Royal Copenhagen Library Thotts Sml., 40 Nr. 213, which reads: ‘HISTORY OF THE ROMAN CHURCH, signed by Thomas Hobbes. From My Lord Vaughan’s Library, copied in London, George Grund, AD 1685’. Reproduced in Springborg, et al., Historia Ecclesiastica, 302–3.
97 Grateful thanks to Noel Malcolm who personally undertook the survey of MSS and printed texts for the Historia Ecclesiastica (Springborg et al., Appendix A, 269–81), as well as research on George Grund, published as Appendix C, “George Grund, A Biographical Note,” 293–9. How Grund came to be in London in 1685, and whether Lord Vaughan’s Library was still intact so long after his death is not known. Nor is it known how Grund’s MS passed into the hands of Otto Thoth, a formidable Danish bibliophile, whose collection at the time of his death in 1785 numbered 200,000 items (Malcolm, “Grund,” 299).
98 See Springborg, “Writing to Redundancy: Hobbes and Cluverius”.
99 The Wikipedia entry for Sir Robert Cotton https://en.wikipedia.org/wiki/Sir_Robert_Cotton,_1st_Baronet,_of_Conington, notes: The Cottonian Library was the richest private collection of manuscripts ever amassed. Of secular libraries it outranked the Royal Library, the collections of the Inns of Court and the College of Arms. Cotton's house near the Palace of Westminster became the meeting-place of the Society of Antiquaries of London and of all the eminent scholars of England; the Library was eventually donated to the nation by Cotton's grandson and is now housed in the British Library.
100 For suggestions on ‘New Directions for Hobbes Research’ by Gianni Paganini, Quentin Skinner, Patricia Springborg and Susan Sreedhar, see the European Hobbes Network website, http://www.europeanhobbessociety.org/general/new-directions-for-hobbes-research/.
101 Springborg, “A Very British Hobbes or a More European Hobbes”, and “Hobbes, Donne and the Virginia Company,” q.v.