Investigations

So, spent some quality time in the stacks yesterday. Stained my pants with that weird brown dust that falls from 19th-century volumes. Still, found some good books and also spotted some misconceptions I may have made.

The most relevant cluster of books were in the section on English sovereignty (KD 4435). There's an 1820 volume from a guy named Chitty, entitled Prerogatives of the Crown, that summarizes the various rights inherent in the king and situates them in the metaphysical exchange between the political body and the natural body. To illustrate that these doctrines were never monoloithic, even when they were at their peak, there's a devastatingly arch critique of Chitty in a book from 1840 by Allen, entitled On the Royal Prerogative, that takes Chitty's analysis to task with sarcasm and clarity. He doesn't name Chitty, but his rebuttal is clearly framed with Chitty in mind. Also, he provides his own fascinating history of Anglo-Saxon kings... he notes that under the Anglo-Saxon wergeld system, the King possessed a "blood price" (the amount of restitution needed to atone for killing him) that was highest as a degree, but no different in kind, from what applied to everyone else. However, there was an exception to wergeld - you couldn't pay a blood price for killing your hlaford... a lord to whom you'd sworn allegiance. The argument seemed to be developing towards an analysis of Kingship as the "universal hlaford" replacing the requirements of wergeld with the notion of treason.

Also, it begins to look like Francis Bacon was the John Yoo of his day. There's a lot of great material coming from Bacon about the King's plenary powers. Several citations that came up were his arguments on De rege inconsulto, De non procedendo reg inconsulto, and the "Essay of Judicature." Also, James I seems to have had a bit of the Bush... "That which concerns the mystery of the King's Power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs to them that sit in the throne of God." Some relevant citations: 2 State Trials 765, 3 State Trials 37, James' Speeches to the Star Chamber as cited in a text identified as "Prothero".

Another book to investigation more fully is W. Harrison Moore, Act of State in English Law.

If an idea's merit can be assessed by the number of it's plagiarists, Blackstone's Commentaries were a very good idea indeed. Astonishing how many subsequent tomes of English law are explicitly modeled on the Blackstonian work (Broom, Jenks, Stephen). There's no way I can read all four volumes. But the following chapters seem most relevant:

Vol. I: Of the Rights of Persons

• Ch. 1: Of the Absolute Rights of Individuals
  
• Ch. 2: Of the Parliament
  
• Ch. 3: Of the King and his Title
  
• Ch. 4: Of the King's Family
  
• Ch. 6: King's Duties
  
• Ch. 7: King's Prerogatives
  
• Ch. 9: Subordinate Magistrates
  
• Ch. 10: The People whether Aliens, Denizens or Natives

Vol. II: Of the Rights of Things

• Ch. 27: Of Title by Prerogative and Forfeiture

Vol. III: Of Private Wrongs

• Ch. 17: Of Injuries Proceeding From or Affecting the Crown

Vol. IV: Of Public Wrongs

• Ch. 7: Of felonies injurious to the King's Prerogative
  
• Ch. 8: Of Praemunire
  

Now, what have I misunderstood? First off, "dignity" isn't what I thought it was - it's not some abstract concept... it's a very technical term-of-art applying to hereditary entitlement. There are entire volumes explaining the significance and structure of dignities. As such, the "dignitary" analysis of the Conservative majority becomes way suspect... how is it appropriate to use that approach at all within a republican context? Keep a sharp eye out for the different ways jurists use the term "dignity" - is there concept-conflation going on between the American sense of "dignity" (intrinsic worth) and the English one (aristocratic nobility)?

Also, there seems to be a lot of opinion that the King's body doesn't actually enjoy any special privileges. There's an exchange of properties... a metaphysical intermixing between the two. But the King's physical body appears not only to be an ordinary mortal frame... it appears to be on par with that of other subjects. Thus, the King's physical body is equally subordinate to the King's political identity as any other Englishman. However, because the intangible body is focused on the physical one, there are certain transformations that take place - not all favorable to the privileges of the King. For example, a King can't use the defense of nonage against an abusive contract. Since his regal body is immortal, it can't be underage. So if an infant king makes a contract, it isn't subject to recission on the basis of nonage. The King can't be a witness in a case of treason.

That's not to say that there aren't two tiers of kingly privilege. Just to say that the distinction may not be as clear cut as I suspected. Many of the "incidental prerogatives" of the King still seem to attach to his regal identity, even though their exercise isn't an "Act of State" embodying the full power of the sovereign. It's not clear that there is in fact a coherently intelligble cluster of personal rights to be derived from these principles, however.

Also, the question of Parliamentary sovereignty is a very tricky one. It'll be worth paying close attention to Blackstone's division of personal rights between Parliaments, individuals, and the King... and also what character of rights are deemed universal.