The King Can Do No Wrong: Tons of Reading on the Origins of Sovereign Immunity

The King Can Do No Wrong: Tons of Reading on the Origins of Sovereign Immunity

I’ve always liked this picture of Nixon. His face says “Umm, you’re upset that I did that?” I included him as the main post picture because of his statement during the Frost/Nixon interview: “When the President does it, it’s not illegal.” I find it interesting that it is on LIFE‘s Lamest Excuses List.

Anyways, I hit a jackpot in terms of good articles on sovereign immunity. The first I will outline is

“The Origins of Accountability:Everything I know about sovereign immunity, I learned from King Henry III”.

Guy Seidman, 49 St. Louis U. L.J. 393 2004-2005

I think this article pretty much captures just about everything there is that you might want to know about the 13-17th century origins of the sovereign immunity idea. It is thorough to say the least- it really was quite long. I did actually skim some parts, but I did pick up a few golden nuggets of knowledge:

The maxim “the king can do no wrong” can actually stand for 4 different things! It had all these definition during it’s history in England (this article deals almost exclusively with English sovereign immunity although it was obviously imported over to the colonies).

(1) The King is literally above the law and cannot do wrong by definition.

(2) Even if the king’s actions are not lawful by definition, there is no remedy for the king’s actions through the courts.

(3) (True Origin) The King has no power or capacity to do wrong (King Henry III as the example)

(4) The King is eminently capable of doing wrong but cannot do so lawfully.

(All from pg 396)

Then there is a very long narrative of the medieval, feudal, etc origins that I won’t repeat here. Historically interesting, but escapes most legal/political science scope. One thing that is important is the King Henry III thing. Henry III (Before him was King John and the Magna Carta) was only 9 when he ascended to the throne. It was going to be an issue whether or not the 9 year old would be liable to suits or “legally” the King. For some reasons explained within the article, the Pope actually decided the issue and nobleman William of Earl was appointed rector regis et regni. Then there is the idea that there were really 4 types of law and legal thinking going on at the time:

Roman law

Church (Ecclesiastical) Law

Tribal/Traditional/Customary law

Feudal law

There are explanations of where sovereign immunity proceeds from each of these types of law. For example, in feudal, it was because if sued, the King might be the judge in his own case and that would be unacceptable. It is almost the opposite in Tribal law, where the king was not absolute. Roman law was pretty clear: the emperor is not bound by statute and what pleases the prince is law (from Justinian). Papal law fully endorsed the king and sovereign immunity for the same reason the pope had power, divine right.

Another important point: There had been a debate over whether the immunity was attached to the person, or to the government.

So, I didn’t give a really solid review of this document. I know now that if I need to know anything about English origins of sovereign immunity, this is the definitive document. I did get the source of some quotes though, Blackstone “the king can do no wrong” and even a treatment of sovereign immunity by Locke in the conclusion.

But what I really want to write about is:

Bureaucracy that Kills: Federal Sovereign Immunity and the Discretionary Function Exception

Weaver and Longoria, APSR June 2002

Which I will blog about tomorrow!

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Posted on November 14, 2011, in Uncategorized and tagged , , , , , , , , . Bookmark the permalink. 2 Comments.

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