Divine Right and Roman Law

THE institutions of England are invariably perplexing and usually irrational. That, in practice, they work both smoothly and efficiently, renders them all more irritating to logical Latin mind. Occasionally, however, some unexpected breakdown, some cause celabre, reveals to an astonished public strange anachronisms, anomalies, or illogicalities. The great and deserved success of The Winslow Boy has revived public interest in Archer-Shee case in its personal and dramatic aspects. It is perhaps too much to expect that it would revive interest in its grave and fundamental legal issue, extraordinary position of Crown in English law, fact that the maxim, King can do no wrong, is one which applies literally in Courts.' A newspaper columnist, with complacency that newspaper columnists invariably assume when speaking of English law, recently wrote that only in England could a private citizen have fought and beaten forces of Crown. He might have been a little less complacent had he realized that only under English law would such a struggle be necessary, that only under English law would Archer-Shees have found themselves without a legal remedy from a grave injustice committed by Crown. I remember very clearly complete bewilderment of distinguished continental jurists who visited England at that time. Their constantly repeated cry was: But why don't ArcherShees proceed in Council of State? and it was difficult to make them understand that there was nothing corresponding to Conseil d'1Etat, and that, in civil matters, a subject was powerless against Crown, unless Crown itself were to waive its own immunities and issue that Olympian fiat Let Right be Done, an order that a subject might humbly petition for as a matter of Grace, not categorically demand as a matter of Right. And I can well remember their gasp of amazement: But this is Divine Right? Their astonishment was not unjustified. It has ever been proud and just boast of English that they, long before any other people, successfully challenged dogma that a Divinity doth hedge a King. That dogma, so violently and ably assailed and defended throughout sixteenth and seventeenth centuries, seems to us very strange. The

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