
Miles Smith IV is a visiting assistant professor at Hillsdale College and a historian of the Old South and Atlantic World. He took his B.A. from the College of Charleston and holds a Ph.D. in History from Texas Christian University. He is a native of Salisbury, North Carolina.
Last week saw the alignment of a peculiar set of anniversaries: The Fiftieth anniversary of Churchill’s death, the seventieth of the liberation of Auschwitz by the Soviet Army, and the 208th birthday anniversary of Robert E. Lee. Sir Winston Leonard Spencer-Churchill died in 1965. One century earlier General Robert E. Lee surrendered the Army of Northern Virginia to his Federal counterpart U.S. Grant. Churchill and Lee enjoyed widespread acclaim for their conduct—Lee in the late nineteenth and both he and Churchill in the latter half of the twentieth century. In recent years deconstructing both men enjoyed being the vogue of both academic and popular commentators. Both Churchill and Lee lived their lives as traditionalists. Neither embraced the social or moral innovation of their own eras. Modern commentators degrade both for their seemingly reactionary ideals. Unsurprisingly, Churchill adored Lee (and Abraham Lincoln as well). A recent historian opined that Lee’s “tragic flaw” was that he upheld the genteel values of eighteenth century Virginia “in a society that left older ideals of nobility and privilege behind.” One might grant that Lee’s aristocratic and heavy-handed slaveholding would understandably guarantee him a fair share of detractors in the early twentieth century, but this commentator offered as his reason for deconstructing Lee a calamitous rationale:
In the long run, Lee’s decision to follow Virginia out of the Union and resign his commission from the US Army further reveals his eighteenth century sensibilities which emphasize state over country and a parochial interest in defending home and family rather than one’s nation. In choosing loyalty to his state over loyalty to his country, Lee ensured that his destiny would be tainted by defeat and the specter of treason.
The disturbing notion that one’s parochial interest in defending his home and family constitutes a “fatal flaw” ultimately saw its hellish culmination in the totalitarian nationalist regimes of the twentieth century. It was Lee’s very cultured localism, tragically tinged as it was with slaveholding, that endeared him to Winston Churchill.[1]
Before Winston Churchill assumed the premiership of the United Kingdom and before he battled the nationalist brutes ruling Germany and Italy, he wrote history. In History of the English Speaking Peoples: The Great Democracies, the fourth volume of his history of the Anglosphere, his view of American history reflected a patrician education and disposition. Never comfortable in the twentieth century, Churchill kept the values of a bygone Victorian Era well into the middle of the twentieth century. In Lee he found a similarly anachronistic gentleman of the eighteenth century living in the nineteenth. Churchill wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and an exalted character.” He “weighed carefully, while commanding a regiment of cavalry on the Texan border, the course which duty and honour would require from him.” Churchill overstated Lee’s antipathy towards slavery but nonetheless seized on the Virginian’s conservative Whiggish politics. Lee knew secession to be dangerous and ill-advised “but he had been taught from childhood that his first allegiance was to the state of Virginia.” Churchill found Lee’s Old South an admirable but flawed reflection of British gentry. “There was,” said Churchill, “a grace and ease about the life of the white men in the South that was lacking in the bustling North. It was certainly not their fault that these unnatural conditions had arisen.” Churchill’s denotation of white men underscores his innate humanity. White men, he knew, built their civilization on the backs of enslaved people held in human bondage. “The institution of negro slavery,” Churchill knew, “had long reigned almost unquestioned.” Upon the basis of slavery “the whole life of the Southern states had been erected.” Churchill saw a “strange, fierce, old-fashioned life. An aristocracy of planters, living in rural magnificence and almost feudal state, and a multitude of smallholders, grew cotton for the world by slave-labour.” Churchill’s empathy for the planter class stemmed from his willingness to conceive them as a class that “ruled the politics of the South as effectively as the medieval baronage had ruled England.” Southerners who by varying degrees colluded with the capitalist system became feudal agrarians and misplaced Englishmen in Churchill’s romantic imagination. [2]
Southerners engaged in the capitalist system in the antebellum era. Not all southerners were equally capitalist, however, and the Whig planters of Mississippi and Louisiana embraced the economic, expansionistic, and modernizing nationalism of the United States in a way that horrified old planters in Virginia and Carolina. Nonetheless, the Old aristocratic Anglo-American planter communities provided Churchill with set pieces as he wrote his histories. Of Lee, Churchill somberly wrote that he “wrestled earnestly with his duty” during the secession crisis. “By Lincoln’s authority he was offered the chief command of the great Union army now being raised. He declined at once…” The immediacy of Lee’s refusal supplied Churchill with a heroically long-suffering but duty-bound Anglophone hero. Churchill made much of how Lee resigned, “and in the deepest sorrow rode across the Potomac bridge for Richmond. Here he was immediately offered the chief command of all the military and naval forces of Virginia.” Lee’s decision, thought Churchill, seemed beautiful and tragic. “Some of those who saw him in these tragic weeks, when sometimes his eyes filled with tears, emotion which he never showed after the gain or loss of great battles, have written about his inward struggle. But there was no struggle; he never hesitated.” Lee’s choice, declared Churchill, “was for the state of Virginia. He deplored that choice [and] foresaw its consequences with bitter grief; but for himself he had no doubts at the time, nor ever after regret or remorse.” Writing in 1858, Lee appeared as a forerunner of Churchill himself: warning of the disaster befalling England, but fighting determinedly when the conflict came. [3]
Sensitive to the political differences between Imperial Britain and the United States, Churchill nonetheless tried to make sense of the American Civil War and its aftermath. Churchill saw that “Radical vindictiveness” in Republican ranks “sprang from various causes. The most creditable was a humanitarian concern for the welfare of the negro.” Belief in the God-given humanity of African Americans was “shared only by a minority.” Churchill believed that “more ignoble motives were present in the breasts of such Radical leaders as Zachariah Chandler and Thaddeus Stevens.” Because they loved “the negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.” But Churchill argued that “there was another and nearer point.”
The Radicals saw that if the negro was given the vote they could break the power of the Southern planter and preserve the ascendancy over the Federal Government that Northern business interests had won since 1861. To allow the Southern states, in alliance with Northern Democrats, to recover their former voice in national affairs would, the Radicals believed, be incongruous and absurd. It would also jeopardise the mass of legislation on tariffs, banking, and public land which Northern capitalists had secured for themselves during the war. To safeguard these laws the Radicals took up the cry of the negro vote, meaning to use it to keep their own party in power.
Churchill conceived of the Civil War from a perspective of a Briton deeply suspicious of the effects of modernizing industrial nationalism. His best known Liberal biographer, Lord Jenkins, painted him as a champion of Free-trade economic libertarianism and of workers as well. William Manchester, a far more conservative biographical voice, likewise understood Churchill as essentially a Free-trader whose conservatism remained confined to foreign policy. Free-trade economic views never allowed Churchill to entirely embrace the relationship between corporation and nation that characterized post-Civil War American politics. [4]
Capitalism accompanied Free-trade in Churchill’s mind, and he affirmed capitalism in his ideals about society. But he likewise displayed antipathy for the wedding of corporation and nation that followed the American Civil War. Of the captains of industry he wrote that “Carnegie and Rockefeller, indeed, together with Morgan in finance and Vanderbilt and Harriman in railroads, became the representative figures of the age,” when compared to the “colourless actors upon the political scene.” “Though the morality” of the captains of industry “has often been questioned, these men made industrial order out of chaos. They brought the benefits of large-scale production to the humblest home.” Still, Churchill saw the Gilded Age American Union as racked “by severe growing pains” and unrest. “There was much poverty in the big cities, especially among recent immigrants. There were sharp, sudden financial panics, causing loss and ruin, and there were many strikes, which sometimes broke into violence.” Most disturbing to Churchill the free trader, “Labour began to organize itself in Trade Unions and to confront the industrialists with a stiff bargaining power. These developments were to lead to a period of protest and reform in the early twentieth century.” Churchill’s deep ambivalence about the wedding of capitalism and nationalism led him the recognize “gains conferred by large-scale industry” but also to lament that “the wrongs that had accompanied their making were only gradually righted.”[5]
Churchill’s British perspective offered a nuanced perspective that stood outside the intemperate screeds of Lost Cause southerners, and the more numerous and far more influential hyper-nationalist hagiography devoted to the white northern liberators. Churchill understood that slavery constituted the great systemic evil of the nineteenth century United States and caused the Civil War. His libertarian proclivities left him unconvinced of the necessity of 800,000 dead. In this he prefigured agrarian Wendell Berry who noted in his essay “American Imagination and the Civil War” that a botched emancipation was far batter than no imagination. But Berry also noted that history demands that a botched emancipation be criticized for what was botched. David Goldfield, former president of the Southern Historical Association, declared in his America Aflame that his work was “neither pro-southern nor pro-northern. It is anti-war, particularly the Civil War.”[6]
To his credit, Abraham Lincoln regretted the Civil War’s violence in 1865 and subsequently proposed an expeditious readmission criterion for the seceded states, only to have it scuttled by Radical Republicans after his assassination. Unbeknownst to Lincoln, who genuinely seemed interested in restoring the status quo ante bellum, the war unleashed the ideological monstrosity of modern industrial nationalism on the American polity. Harry Stout recognized that industrial nationalism tarnished the war’s consequence of liberating African Americans from chattel slavery. Elliott West’s history of the Nez Perce War of 1877 posited the idea of a greater Reconstruction, whereby the Republican Party remade the entirety of the continental American polity in the image of white capitalistic, militaristic, Evangelistic Protestant nationalism. Native Americans stood in the way of the American nation, and the U.S. Army ruthlessly destroyed the last free Indian societies in the Far West. Societal transmutation on that scale necessitated violence in the name of the nation. Jackson Lears pointed out in his Rebirth of a Nation that racism on a societal scale (southern and northern) fed this nationalism driven by a political organization formally committed to black liberty. By 1900, four decades of almost uninterrupted Republican government turned the United States into an imperialistic nation-state. Though to a small degree mitigated institutionally in the United States by a lingering federalism, nationalism with its muscular industrial core eventually threw Europe into the nightmare of two world wars.[7]
Few American historians have offered an anti-nationalist vision of the Civil War. The camps seemed too rigidly defined for works such as Churchill’s to remain valid. Churchill’s vision of the American Civil War Era is at once not southern enough for Lost Cause partisans, nor is it sufficiently pro-northern for Neo-Abolitionists. Churchill saw the conflict as a tragedy. Nationalist historians and political philosophers generally counted the war a blessing; to think it a tragedy negated the benefits of union and emancipation. British Marxist Robin Blackburn exasperatedly asked why “a willingness on the part of the United States to admit the possibility that the war was not the best response” to secession or slavery was seen as condoning either.[8]
Conservative historians understandably co-opted Churchill into the pantheon of Anglo-American heroes committed to the maintenance of the Western World and to its transcendent expression of human liberty. Much of the resilience involved in Churchill revolves around the image of a nationalist military chieftain committed to Britain’s place in the world. That image is true—Churchill biographer Carlo d’Este argued that his subject was one of the humans truly born for war—but not complete. John Keegan once described Churchill as a true libertarian, and this seems an appropriate corrective given the multitude of remembrances published on this fiftieth anniversary of his passing.[9]
[1] Glenn W. LaFantasie, “Broken Promise,” Civil War Monitor 13 (Fall, 2014): 37
[2] Winston S. Churchill, A History of the English-Speaking Peoples Vol. 4: The Great Democracies.
[3] Churchill, Great Democracies.
[4] Roy Jenkins, Churchill: A Biography (New York: Farrar, Straus, & Giroux, 2001), 398-401; William Manchester, Last Lion: Winston Spencer Churchill, Visions of Glory (New York: Little & Brown, 1989), 361.
[5] Churchill, The Great Democracies.
[6] Wendell Berry, “American Imagination and the Civil War,” in Imagination in Place (Berkeley, CA: Counterpoint, 2010), 27; David Goldfield, America aflame: How the Civil War Created a Nation (New York: Bloomsbury, 2011).
[7] Elliott West, The Last Indian War: The Nez Perce Story (Oxford and New York: Oxford University Press, 2009); Jackson Lears, Rebirth of a Nation: The Making of Modern America (New York: HarperCollins, 2009).
[8] Robin Blackburn, “Why the Muted Anniversary? An Erie Silence,” CounterPunch (18th April 2011):
[9] Carlo d’Este, Warlord: A Life Winston Churchill at War, 1874-1945 (HarperCollins, 2008); John Keegan, Winston Churchill: A Life (New York: Penguin, 2002), 27.
"The king can do no wrong", Commentaries on the Laws of England, Elizabeth I, England, government, Ludwig von Mises Institute Canada, qualified immunity, Sir William Blackstone, sovereign immunity, The Eleventh Amendment, The U.S. Supreme Court, United States
The Immunity Community
In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 amThis piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.
The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.
In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.
It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.
Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]
The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.
Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]
State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.
Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.
Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.
Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.
The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.
If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.
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[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).
[2]Jaffe at 2.
[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).
[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).
[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.
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