The King can do no wrong

Some of you have asked what I've been working on this summer as my sabbatical begins.  I'll share one small piece here.

Rt. Hon. Sir John Comyns

The Sacrosanct title is partly a study of the theological roots of Sovereign Immunity: 'The King can do no wrong.'  It is a cornerstone feature of American public law, which the United States Supreme Court addressed very early in its history in a case that is now largely forgotten due to the Eleventh Amendment.

That case was Chisholm v. Georgia (1793):  Opinion.  Basically, can citizens of one state sue another state in Federal court?  The majority say Yes - a position that the Eleventh Amendment eliminated.

Reading the opinions (not as lawyer but as a theorist and legal historian) was very illuminating.  First of all, it's impressive to see the variety of authorities that the Court - still only four years old - needed to invoke, given the dearth of precedents.  Chief Justice Jay, in his discussion of the federal structure of the United States, invoked the models of the Achaean League, the Amphictyonic Council, the Holy Roman Empire (as he did in his contributions to the Federalist Papers), not to mention a classic work of the period by Cornelius van Bynkershoek.  Justice Wilson (the same James Wilson who, at the Philadelphia Convention, was the major advocate for the Presidency as a unitary executive) presented a remarkably Bodinian theory of sovereignty, citing also the authority of Vattel and Pufendorf.

The dissent by Justice Iredell, however, was the most interesting - it is remembered today because it anticipates the Eleventh Amendment.  This bit, however, was the most interesting:

Chisholm v. Georgia at p. 437

The cited authorities were mysterious, and I was able to spend a morning in the Robbins this week to locate them - among the most satisfying scholarly activities as a professional scholar.  Here are some things I found.

The first is Com. Dig.:  This is a reference to Comyns Digest, a standard reference work in English common law that early American lawyers frequently used.  Justice Iredell here was referring to this passage:

(Pollock and Maitland, however, show this assertion about the pre-Edwardian sovereign liability likely to be apocryphal.)

Justice Iredell's dissent included a reference to another authority, "Theloall."  This turns out to be a work in Law French, and he was referring specifically to this passage:

 

The last authority was a source that Justice Iredell appears to have accessed via Blackstone - Finch.  This is an interesting text:  Finch turns out to be a kind of English legal Ramist.  I regret that I didn't have a chance to incorporate his work into my last Divisions of Law project.  Here was Iredell's other source:

American judges of the nineteenth century who craft the sovereign immunity doctrine and, then, play around with it are aware that it is an artifact of medieval English law.  Even writing before Pollock and Maitland, they also understand how Edward I, the English Justinian, was the pivot in this chronology.  What I'll be exploring in the coming months is how this may have all been ultimately the product of a theological dispute among the Church Fathers.