The ancient doctrine of sovereign immunity to this day frequently shields the king’s men from legal liability for acts on his behalf. But this was not always how the doctrine was interpreted. Rather it was at times interpreted as an irrebuttable evidentiary presumption that the sovereign himself (i.e., the king) could not have formed a criminal intent. Under this view, the sovereign, no matter what the other evidence may say, will never be guilty of a crime.
It is in this form that the doctrine was on at least one celebrated occasion used not as a shield for a man of the king, but—in a gloriously perverse legal twistSo glorious that the author’s heart beats higher on reflecting that shares he with the authors of that twist the appellation of attorney.—as a deadly sword against a high-ranking king’s man.
Thomas WentworthThis account follows the author’s recollection of Macaulay’s History of England Vol. I, Ch. 5. was a gifted lawyer, general, and politician in the time of Charles I. After initially taking some Anti-Royalist positions, he eventually converted to the Royalist cause. In that cause, he rose highly. He became one of Charles’s closest advisors and was successively created Earl of Strafford and Lord Deputy of Ireland.
It was in the latter position that he and Charles hatched a scheme to defang Charles’s opposition. Wentworth would raise an army in Ireland, transport it across the Irish channel, and then use it to militarily suppress all resistance to Charles.
Charles’s parliamentary opposition was unsurprisingly not pleased to discover this and impeached Wentworth for high treason. This was a counter-intuitive charge, for everybody knew that Wentworth was not acting on a design to encompass the death of the king.
Rather, he was acting on behalf of the king.
Against this the clever parliamentary lawyers deployed the doctrine of sovereign immunity. For if Wentworth had brought a foreign army to England on behalf of the king to suppress its people, then the king too would have been guilty of a great felony. However, the doctrine of sovereign immunity proclaims that the king could not have formed such an intent, regardless of what the evidence seemed to indicate. So when Wentworth schemed to bring a foreign army to England, it must not have been on behalf of the king. Such a design admits of no interpretation consistent with sovereign immunity except that Wentworth intended to kill the king and hence was guilty of high treason.
Admittedly this argument failed and Wentworth was acquitted at impeachment. For even the most air-tight legal argument may be rejected, if the jury deems a step just too bizarre.
So Parliament went ahead and instead passed a bill of attainder against Wentworth, condemning him to death. When Wentworth learned that his friend Charles was not going to stop the hanging, he reportedly quoted Psalms 145:2 as rendered in the Vulgate: nolite confidere in principibus.
Put not your trust in princes.
This is a statement so apt that it shall henceforth be the motto of this blog. In the end, of course, Charles’s betrayal availed him not and only a few years later he would be made to ascend the same steps as his friend had been.
