Legal Maxim Rex non potest peccare : The King can do no wrong

Introduction

Rex Non Potest Peccare is a fundamental principle of English laws, as said by Blackstone who described King as being perfect without capacity and ability to do wrong and is created for the benefit of the people, and therefore cannot be exerted to their prejudice. The maxim means ‘The King can do no wrong’ Justice Holmes was a chief proponent of this maxim during 20^th century USA. He said that there can be no legal right against the authority that makes the law on which the right depends.[2] However, this cannot mean that the king is above law.

Meaning

The maxim literally translates to ‘king can do no wrong.’ Originated from common law, it was a prominent feature of kingship till 20^th century.[3] In modern times, it is known as Doctrine of Sovereign Immunity. It means while performing sovereign functions the state is exempted from the liability if something goes wrong while doing that function.[4] The maxim may be attributed to divine rights principle. It does not seem, however, that the above doctrine can be extended to invalidate an act of the legislature, on the ground that it was obtained by a suggestio falsi, or suppressio veri. It would indeed be something new, as observed by Cresswell, J., to impeach an Act of Parliament by a plea stating that it was obtained by fraud.[5]

As per English Jurist William Blackstone, “The sovereign, moreover, is not only incapable of doing wrong but even of thinking wrong; he can never mean to do an improper thing, in him is no folly or weakness.” Allowing the Crown to be dragged into court without its consent, would usurp the role of the throne and the sovereign itself.[6]

This maxim applies to personal and private wrongs and to wrongs done personally by sovereign and to injuries done by subjects with the authority of sovereign. This doctrine was introduced by British in India. However, the distinction was made at the time between sovereign and non-sovereign functions of the government, as seen in case of Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India.

The Law Commission of India in its very first report recommended the abolition of this outdated doctrine. Article 300 of Constitution of India allows people to sue the Union or State Government. In Maneka Gandhi v. UOI,[7] SC stated, “The Maxim that King can do no wrong in tort has no place in Indian jurisprudence where the power lies, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation.”

In United States of America, the concept of constitutional tort developed, meaning claims brought by individuals against violation of constitutional rights. This at times conflicts with the doctrine of sovereign immunity as it creates a vacuum to whether states have absolute immunity as per constitution or with restrictions.[8]

Illustration

Applicable

Due to some act of the state ‘A’ has to suffer few losses, however he was not able to sue the state for it as the state was protected by the principle laid by the maxim ‘Rex Non Potest Peccare’.

One day, the king's soldiers are engaged in military exercises on his estate. Inadvertently, during these exercises, they cause extensive damage to neighbouring properties, including crops and livestock. However, according to the principle of "Rex Non Potest Peccare," the king cannot be held personally liable or subject to a lawsuit for the actions of his soldiers.

Not Applicable

A, a prisoner in jail, informed authorities of a suspected bomb blast, but was not granted protection. A bomb blast occurred in prison killing A. Here the state can be held liable and not be granted sovereign immunity due to negligence of authorities and the State will also be liable to pay any damages. Therefore, doctrine of sovereign immunity will not be granted.

A, a government employee, was driving a jeep back from repairs. However, A accidentally hit B on the road, causing severe injuries that led to B's death. Here, the State could be held liable for the damages and pay compensation to victim, caused by A's actions due to the doctrine of sovereign immunity, which generally exempts governments and their employees from liability for torts committed in the course of their official duties.

Conclusion

This maxim used to be the foundation of the King’s rule in the past as seen in England and similar instance. It was deemed necessary to justify the acts of the King, believed to be the representative of God, as per divine rights. In Ancient India though the situation was different even Kings had to follow ‘Raj dharma.’

However, in modern times the maxim has lost its efficacy due to restraints and being limited to pure sovereign functions such as defence, etc. In Britain, Crown Proceedings Act was passed in 1947, allowing Crown to be sued, after taking reference of the case of Adams v Naylor, where it became increasingly important to underpin the Crown and held them liable for the acts of its servant. As for India, the constitution under Article allows government to be sued. While Article 361 provides immunity to President and Governor only on grounds of official duties. Since the time of British India, Government has been held liable though with distinction as to sovereign and non-sovereign functions, through the case of P & O Steam Company.[9]

This maxim is no longer valid in India as well around the world because now the government is held liable and has civil liabilities to the acts of its servants. In USA, as Justice Holmes described the maxim is now obsolete there itself. Moreover, the Crown in UK and even other Common law countries such as Australia do not provide validation to the maxim “King can do no wrong.”

[1] Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1868) 5 Bom HCR App 1.

[2] George W Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 Louisiana Law Review 340 (1953).

[3] Janelle Greenberg, Our Grand Maxim of State, 'The King Can Do No Wrong', 12 History of Political Thought 209-228 (1991).

[4] The doctrine of Sovereign Immunity - An Analysis, 2.2 JCLJ (2022) 545.

[5] Stead v. Carey, 1 C. B. 516.

[6] 1 William Blackstone, Commentaries on the Laws of England 217-220 (1765).

[7] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.

[8] Josh Hughes, Rex Non Potest Peccare: The Unsettled State of Sovereign Immunity and Constitutional Torts, 69 DRAKE L. REV. 949 (2021).

[9] Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India, (1861) 5 Bom. H.C.R. App. 1.