George Archer-Shee died at nineteen, in what might almost be called a natural death for a young British man of his class at that time – he was killed in the First Battle of Ypres. His name is inscribed on the Menin Gate but he has no known grave.
He shared the manner of his death with thousands of others, but, quite against his own wishes, his short life before that had taken an unusual turn. At the time of his death he had been famous for six years.
It all started in 1908 when George Archer-Shee was thirteen and a cadet at the Royal Naval College, Osborne. He was accused of having stolen a five shilling postal order intended for another cadet. An elderly post office clerk said she remembered Archer-Shee as having cashed two postal orders that day, one of his own (which no one denied) and the stolen one. Archer-Shee protested his innocence to no avail; he was expelled without much ceremony.
That should have been that, a minor story of Edwardian disgrace, but his father refused to take it lying down. He engaged one of the most celebrated lawyers of the day – Sir Edward Carson, famous for many reasons, some of which are still controversial today, and determined to pursue the case to the highest court in the land. But there was a slight problem: if I have understood it right, at that time one could not sue the Crown.
Quoting a 1939 article in the Pennsylvania Law Review:
It was early recognized in England that while an action could not be brought against the King, yet as the “fountain of justice and equity” he would entertain petitions from his subjects for the redress of their wrongs; and it was established during the reign of Edward I that the subject might bring a petition of right, which, if approved by the King, would be heard in his courts. The King indicated his approval of the petition by writing on it, “Let right be done”. A petition of right, as distinguished from a petition of grace, asked “for something which the suppliant could claim as a right, if the claim were made against any one but the King”. Originally a petition of right was employed only to recover some interest in land, and there was doubt whether it would lie to recover chattels, but by the time of Henry VI it was settled that it would lie for the recovery of goods and chattels. It was not until 1874 that it was decided that the petition would lie for breach of contract. It would never lie for a tort, for the King can do no wrong.
At the time the petition of right was filed in the Archer-Shee case the law was clear that those in the service of the Crown, whether military or civil, could be dismissed at will and were without remedy by petition of right or otherwise.
Carson won in the end, as he usually did. Archer-Shee was exonerated. And the important precedent was set that the King can do wrong, and can be sued.
So far, so Whig history. The setting of that precedent is how I come to know about the case. I think I read a rather good account of it and why it mattered in Look and Learn magazine in the mid 1970s. Terence Rattigan wrote a play loosely based on the story called The Winslow Boy. It has been filmed at least twice.
But a more recent event also involving the Post Office – and the refusal of the Post Office to admit the possibility of error – and the refusal of the British State as a whole to admit the possibility of the Post Office being in error – and the blackening of the names of innocent people – made me think that we need to learn that lesson again.
Let the BBC tell the story:
Post Office scandal: What the Horizon saga is all about
A group of former sub-postmasters and sub-postmistresses have seen their names cleared at the Court of Appeal after the UK’s most widespread miscarriage of justice.
It marks the latest stage of a computer scandal, and a long and complex legal battle, which could leave the Post Office with a huge compensation bill.
Between 2000 and 2014, the Post Office prosecuted 736 sub-postmasters and sub-postmistresses – an average of one a week – based on information from a recently installed computer system called Horizon.
Some went to prison following convictions for false accounting and theft, many were financially ruined and have described being shunned by their communities. Some have since died.
Edit: In the comments Rudolph Hucker pointed out that the doctrine driving the Post Office’s reckless prosecution of so many of its own employees bore an even closer parallel to the doctrine, supposedly overturned by the Archer-Shee case, that “the King can do no wrong” than I thought. He linked to a piece from the radio station LBC called ‘The Post Office were mendacious in the way they denied justice’ The title is a quote from Nick Wallis, a journalist who has been covering the Horizon scandal for many years.
Due to its long legacy, the Post Office has a “proximity to state power that is almost unparalleled.”
Mr Wallis continued: “It was able to use its own investigation and prosecution units to bypass the CPS and the police force to prosecute its own employees to the tune of one a week for 14 years. There were 736 successful convictions just using Horizon IT evidence.”
He told Shelagh that when the Post Office found out its prosecutions may be unsafe, “they covered it up.”
“They went out of their way to say to campaigning MPs and the Justice for the Postmasters’ Alliance that nothing was going wrong with the IT system and there was nothing wrong with their prosecution.”
They then “threw tens of millions of pounds trying to deny the subpostmasters justice,” Mr Wallis said.
“They were mendacious in the way they went about denying justice and they colluded with the Government in order to do this, because the Government is 100% shareholder of the Post Office and it has skin in this game.”
The state is not your friend, Horizon edition. A monstrous scandal.
More like, techies are not your friend.
(IIRC, the entire scandal occurred because the program failed to take into account automatic balance transfers.)
There’s an exchange in The Winslow Boy between Sir Robert Morton and Catherine :
CATHERINE – Was it cold, clear logic that made you weep today at the verdict?
SIR ROBERT – I wept today because right had been done.
CATHERINE – Not justice.
SIR ROBERT – No, not justice. Right. Easy to do justice, very hard to do right.*
This has always seemed rather profound to me, in that it sounds very moving and deep. But I have no idea what it means. What is this subtle distinction between right and justice that Sir Robert is so keen on ?
I don’t think it can be “right” as in “petition of right” since Natalie explained that that refers to “a right” or at least a wouldabeen right if your opponent had been someone other than the King. And in any event that kind of “a right” is hardly more moving than justice.
So what is Sir Robert on about ?
* I have taken the text from the 1999 film version starring the excellent Jeremy Northam and the excellent (and fragrant) Rebecca Pidgeon, but Rattigan’s original text is no less mysterious :
SIR ROBERT – “No. Nor justice. Right. It is easy to do justice — very hard to do right. Unfortunately, while the appeal of justice IS intellectual, the appeal of right appears for some odd reason to induce tears in court.”
I agree with Sir Robert btw that “right” in this context is more emotionally powerful than “justice”, but I couldn’t say why.
“Justice” is what our systems of justice are allowed to accomplish, within their internal rules, within procedure, limited by our accepted and established burdens. Prosecute a man whom you know murdered someone, fail to provide proper foundation for your evidence, and he walks. That’s justice.
“Right” (not “a right”) is what our systems of justice specifically cannot seek, because it lies outside of process and rule. “Right” is when that same murderer is punished even though the rules called him “not guilty.” “Right” is when the victim’s friends find the killer after his acquittal and kill him.
I’m not sure I would equate “justice” with the playing out of the due process of law, although I confess “Ministry of Justice” has an alarmingly Orwellian tone to it. Your “right” seems to me to be describable as “justice.”
In which context I am reminded of a heartwarming tale, one of those rare WW2 stories with a happy ending, as told in some publication long ago, which I very much want not to be apocryphal :
Once upon a time there was a young Italian man from a small southern town, recently married, who was required to go into the Italian Army (in WW2.) The mayor of the town took a fancy to the young wife and persuaded her that it was within his power to arrange for the husband to be posted somewhere where death was more or less certain – eg the business end of the Russian Front – and that this was what would happen unless she became his mistress. Reluctantly she complied.
When the husband returned, Mussolini having been dispensed with, there was no concealing the fact that the wife had been the mayor’s mistress – the town knew. So, as befits a proper Italian chap, he took his shotgun from the wall, and started off for the mayor’s house.
But his wife pleaded with him – do you think I submitted to all that, so that my husband would return only to spend the rest of his life in jail ? I did it so that I would get you back – to keep. Promise me you won’t go seeking revenge and destroying the rest of our life together.
The husband, suitably moved, put hs shotgun back on the wall and forewent his vengeance.
Decades later, the wife fell ill and died. The husband buried her, and then went home, took his shotgun from the wall, went round to the now elderly ex mayor’s house, and shot him.
It’s sort of a lawyer’s bromide. You get your guilty client off, or your innocent client is found guilty, and you walk away muttering “that’s justice.”
“Right” is what you always wished could happen in the system. “Justice” is what you can get. So I’m only defining things within a lawyer’s vernacular.
Indeed – some by their own hand, directly because of the attitude of the post office, and various ministers in the denial that anything was amiss.
When I read this story, I also immediately bethought me of the Archer-Shee case. Glad to see that I was not the only one, and that history is not forgotten. Is it still taught in law school in the UK?
llater,
llamas
As to “right” vs. “justice”: “Doing right” is a canonical, meaning God-given, natural discretionary option, whose adverse (“doing wrong”) has Luciferian implications both Here and Hereafter.
On ‘tother hand, “justice” is a Common Law or legislative artifact of human societal convenience– in this case, if “the King as sovereign can do no wrong” and yet justice (defined as equality before intelligible, rational, legitimately agreed-upon or enacted statutes) is manifestly “not done”, society’s carefully crafted cooperative armature melts and twists to ruin.
In philosophy, “truth is greater than proof”– as Kurt Godel showed in 1932, “a complete set of axioms is inconsistent, a consistent set of axioms is incomplete.” In Judaeo-Christian terms, the assertion “love abides” is beyond syllogistic explication, logic… failing to acknowledge this, fallible human legal systems, including those addressing Sovereign Immunity, betray their purpose, forfeit “consent of the governed” by disclaiming mortals’ truly transcendent “rule of law”.
The Winslow Boy is a good play – and was made into a good film. Yes it was indeed true – and there is actually a mention in the play (and film) that the the lawyer is a very conservative man who is still interested in justice, the daughter (filled with New Liberal ideas) notes this.
Sir Edward Carson was not a follower of Hegel – he had did not confuse loyalty to country with loyalty to the government, loyalty to “institutions”.
And anyone who knows of the Ulster Covenant of 1912 should know that it makes a sharp distinction between country and government. And it rejects the idea of Thomas Hobbes and David Hume of non resistance to the state – the state (as Perry is reminding us) is not your friend, and it must not be confused with the country.
As for the monarch – this was nothing really to do with the King (and neither is the Post Office anything really to do with the Queen), this is the state bureaucracy HIDING BEHIND the monarch “You can not sue us – because that means you are suing the monarch” is the DISHONEST position of the Hegelian bureaucracy.
The Common Law.
Thomas Hobbes rightly identified a “student of the Common Laws of England” as the great ENEMY of “the philosopher” (by which he meant himself), he wrote a exchange between the two figures (no doubt it can not be found by using “Google” and other search engines – not that I care about that), the student of the Common Law holds that the King CAN do wrong, indeed it may be necessary to take up arms against the King (John Hampden not only sued against illegal taxation – he died in the Civil War).
Chief Justice Sir Edward Coke and Chief Justice Sir John Holt both held that both the King and PARLIAMENT could do wrong if they violated the basic principles of Common Law – which is an effort to bring the principles of natural law (natural justice) into the affairs of human beings.
For example, the “Monarch in Parliament” can not lawfully demand that (for example) “all people with brown eyes shall be burned alive” – and anyone who claims they can (such as Thomas Hobbes) is wrong. The Blackstone heresy – the idea that natural law (natural justice) is somehow compatible with Parliament being able to do anything feels like (for example hanging every person who has black skin) need not detain us – because the compatibilism of Sir William Blackstone (like the different compatibilism of David Hume) is nonsense – these things are NOT compatible.
Let us think about a state of affairs where the “Justice” system and the police and security agencies operate differently on the basis of the political opinions of people they are examining.
That is the situation conservatives in the United States find themselves in today – various police forces, D.A.s, and the Federal forces (such as the FBI and the “Justice” Department) operate on the basis of different standard for people of different political points of view – leftists are allowed to commit acts of violence without punishment, but if conservatives fight back they are punished.
This is also true for non violent offenses – and it goes back a long way, for example Mr Clapper (Director of National Intelligence) and Mr Brennon (the Communist head of the CIA – I am old enough to remember when the CIA used to kill Communists rather than having one of them as its Director), lied on oath to Congress – they were not punished. “Doctor” Tony Fauci does the same thing – he is not punished either (because he is a establishment Democrat – so both perjury and helping lead to the death of HALF A MILLION Americans is just fine).
But Roger Stone was sent to prison – what he actually did wrong is unclear (“he lied” – what exactly was the terrible lie? “shut up”) – but not Clapper, Brennon or Fauci.
This is not an isolated incident – it happens all the time. Leftists are “good” and therefore are not punished for their crimes – but if conservatives fight back, they are punished.
A “legal order” of the American sort, i.e. one that is PARTISAN, is tyranny.
Short version…..
If anyone trusts the “Justice” Department and FBI to be unbiased and unpartisan – I have a nice bridge to sell you.
And that did not start on January 20th 2021 – it goes back many years, but it has been getting worse and worse over time.
Kantorovich’s book The King’s Two Bodies, if I recall correctly, quotes Blackstone to the effect that the king not only cannot do wrong but cannot even wish to do wrong. On the other hand, this refers to the king in his royal persona as the state; it does not always refer to the flesh and blood king. Kantorovich cites the case of Charles I being put to death for treason against the king.
It all seems quite metaphysical. But it appears that the state has neither a soul to be damned nor a body to be kicked . . .
What is staggering about the Horizon scandal is that the Post Office prosecuted 736 people over a 4-year period. Did it never occur to anyone pushing the prosecutions that that’s an awful lot of wrong’uns, and that perhaps, just perhaps, they were barking up the wrong tree? Hubris barely begins to describe it.
bobby b: “Justice” is what our systems of justice are allowed to accomplish, within their internal rules, within procedure, limited by our accepted and established burdens. Prosecute a man whom you know murdered someone, fail to provide proper foundation for your evidence, and he walks. That’s justice.
“Right” (not “a right”) is what our systems of justice specifically cannot seek, because it lies outside of process and rule. “Right” is when that same murderer is punished even though the rules called him “not guilty.” “Right” is when the victim’s friends find the killer after his acquittal and kill him.
So is this what superhero comics are about? Batman must put on a mask and cloak and attack criminals because the Gotham City police cannot protect the rights of the citizens? (It’s a form of vigilanteism, but classic superhero comics have a romantic treatment of vigilanteism, where the vigilante wears a cape rather than a white bedsheet. Of course the other sort of vigilanteism can be romanticized as Birth of a Nation or Gone with the Wind.)
Paul, I agree with you about Hume, and perhaps about Hobbes (though I have read a passage where Hobbes explains that since everyone values their life equally, the sovereign can only licitly tax his subjects if he charges every subject the same amount, which sounds a lot like Natural Law!). But I’d like to note that in another country, when Auguste Comte called for a movement from the Metaphysical to the Positive stage of history, he very likely was for doing away with the old legal assumptions about Right in favor of efficient administration: for taking government away from priests and lawyers and giving it to scientists. (He was a bad influence on the already flawed John Stuart Mill, who spent a lot of effort trying to make Comtean altruism compatible with some measure of liberty, in much the manner you describe.)
Did anyone else notice that the Post Office was able to bring these hundreds of prosecutions to court without ever involving the CPS or Police? Is that because it is a “Crown Agency”? If so, how many others do so?
https://www.lbc.co.uk/radio/presenters/shelagh-fogarty/the-post-office-were-mendacious-in-the-way-they-denied-justice/
As opposed to the total lack of romanticism of Government paid police by books, TV, film, radio and computer games?
The rounding up of dissidents by the Stasi, or Gestapo or NKVD etc being much much more common than Klan activity.
“It’s sort of a lawyer’s bromide. You get your guilty client off, or your innocent client is found guilty, and you walk away muttering “that’s justice.”
“Right” is what you always wished could happen in the system. “Justice” is what you can get. So I’m only defining things within a lawyer’s vernacular.”
In a now long lost British TV series, ‘The Main Chance’, the protagonist barrister has just won an appeal of his client’s conviction for speeding. The client approaches him in court, thanks him and asks him how much he is owed (apparently an “appalling” breach of etiquette). On being told that the bill will be 20 guineas, the client exclaims “that’s outrageous! It sure costs a lot to get justice in this country”.
To which the barrister responds “That was not justice, Mr Smith. I got you off”.
David Bishop wrote:
‘What is staggering about the Horizon scandal is that the Post Office prosecuted 736 people over a 4-year period. Did it never occur to anyone pushing the prosecutions that that’s an awful lot of wrong’uns, and that perhaps, just perhaps, they were barking up the wrong tree? Hubris barely begins to describe it.’
When you task an organization with finding fraud and malfeasance – instead of doing the better thing of preventing fraud and malfeasance – then finding fraud and malfeasance rapidly becomes the goal of that organization, and from there it is a very short leap indeed to an organization which comes to think that, since finding fraud and malfeasance is their assigned goal, so finding more of it must be better, and will lead to approval, organizational stability and growth, increased budgets, praise and honours, and large drinks all round. In such a case, the possibility that the fraud and malfeasance that has been found might not be real is a very unwelcome one, and any metric which might tend to suggest that what is being found is not real, will be sedulously ignored (at best) and carefully covered-up (at worst).
I will take a large wager that says that the investigators who ‘found’ these non-existent frauds were rewarded with bonusses and other emoluments, and that they were enthusiastically-convinced that every case of fraud they found was absolutely real.
To paraphrase Dr Johnson – Nothing will persuade a man to understand something, when his very livelihood depends on his not understanding it. To those who so assiduously winkled out these non-existent frauds, the lack of accountability, an independent prosecutor and any semblance of due process was considered, I am sure, not a bug, but a feature.
Peel’s Principle #9 – The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.
llater,
llamas
Rudolph Hucker,
Thanks for pointing out that very illuminating LBC piece. I’ve updated the main post to link to it.
itellyounothing: As a matter of logic, the statement “some vigilantes are romanticized” does not entail the statement “no agents of the state are romanticized” (or even “no non-vigilantes are romanticized”).
Exactly!
I ought to have added above that we should all be grateful that our systems do not seek to deliver “right.” It’s all fine and well when I’m in charge of defining “right”, but . . .
llamas
Not to me at Law School in the mid-1990s, but at my school the play was fed to me, I concluded that the boy was obviously in the wrong and the decision beyond reproach, and the play absurd and offensive to reason. I must have missed something.
Historically, the Post Office as a Crown body (the Crown having but one legal personality) could do pretty much whatever it liked in England and Wales, and the (now-renamed) Post Office Investigation Branch (see a boastful link from a museum here) could do what it wanted. However, in England and Wales, anyone can be a prosecutor (there was only a ‘Director of Public Prosecutions’ (e.g. Keir Starmer) from Victorian days and a public prosecutor only appeared c. 1986 (the Crown Prosecution Service). As it stands now, there is nothing stopping the Post Office from prosecuting anyone for almost anything unless permission is required e.g. from the Attorney-General or Director of Public Prosecutions, as historically prosecutions in England and Wales could be brought by individuals. The Crown Prosecution Service has the right to take over any prosecution (usually to drop it in the case of abuse of process) but that clearly didn’t happen here.
In Scotland, the Crown Office (Lord Advocate or whatever) has pretty much a monopoly on prosecutions and (apart from some rare instances – including regulatory crimes) no one can bring a prosecution in Scotland without the Crown’s permission i.e. the Scottish government).
Why not prosecute the entire Post Office show for conspiracy to pervert the course of justice and/or causing a public nuisance?
The left took over comics some time ago – in much the same way they took over computer games (ask Perry about that), just more so. There are whole channels on Youtube devoted to how the left have undermined the concept of hero (not just superheroes – any hero), because the left do not understand (or write as if they did not understand) the concept of virtue – yes they “virtue signal”, but they have no idea what virtue is (or they do understand – and hate virtue).
For example, an honourable person (a person of virtue) is specially careful to treat an ENEMY fairly when sitting in judgement upon them. That makes no sense to the leftist mind – to them an enemy is to be destroyed by-any-means, and if that means framing them with false charges so-be-it. In truth concepts of “honour” and “virtue” either baffle or amuse the left – which is why they can not (or will not) write convincing heroes.
The moderate “liberal-left” of the 1960s could still do it – they could write heroes, and they could also write the TRAGIC “bad guy” – someone who has done the wrong road and destroys themselves, whilst still being a person that we care about (there are several episodes of original Star Trek where the viewer cares about a character who is gone down the wrong road, often due to terrible suffering and hate, and is going to destroy themselves and others).
When the modern left present a “reactionary” – they clearly do not care about the character, they are just there to be destroyed and we (the reader or viewer) are meant to LAUGH as they die in the middle of “mansplaining” or something.
The concept of CRUELTY is central to understanding the modern left – they are CRUEL people, they enjoy tormenting and destroying other people.
“How do you know that sort of mind so well Paul?” – I know that sort of mind, because there is a large streak of that evil in ME.
That is why I understand the left – only too well.
If you look into the void long enough, it looks back into you. And I have looked into the void for many years.
Friend Computer is wise. Friend Computer wants the UK to be happy. Happiness Is Mandatory. Failure to be happy is treason. Treason is punishable by summary execution.
They probably really truly believed in what they were doing, because they fell into the trap of all incompetent people – they believed the pronounced science as faith, they believed the experts, without being willing to do the underlying work necessary to confirm that the science and the experts knew WTF they were talking about.
The computer printouts clearly showed that balances didn’t equal what the computer contained as the correct balance. That was all they needed. They forgot, GIGO. The computer program wasn’t taking into account some ways in which balances were altered – properly altered.
So, just as the global warming people cry “believe the science!”, just as the maskers and the quarantiners cry the same thing, without bothering to examine the nuts and bolts of the “experts'” work, the Postal people simply took the printouts as gospel, and prosecuted from there.
When you cannot do the underlying foundational examination – like me discussing philosophy – you can only choose in whom you’re going to place your faith, and then accept their pronouncements. If you make those foundational examinations into “denials”, you make yourself a little bit safer – but your society crumbles.
The 1948 version of The Winslow Boy is at least watchable, probably worth watching. I watched it on TV (which means that i was not paying much attention) before the 1999 version came out.
I was not aware that this case set an important precedent, but i remember the movie equivalent of Carson decrying the doctrine that the King can do no wrong.
BTW I do not understand this quote in the OP:
If this is so, how come the case came to be heard in court?
Or did i misunderstand the legal jargon?
Mr Ed – I would like to go back to before the 1870s when there were no “public prosecutions” (other than for attacks upon Crown property or the person of the monarch and family). But then 1869 is, perhaps, the peak of liberty in many countries – although not all.
William H. Stoddart.
Thomas Hobbes was what is called a “weasel” – he sucked the meaning out of words (as a weasel does with eggs) leaving the outer shell. He used such words as “law” and “right” and “justice” but he emptied them of all traditional content, he “redefined” words.
J.S. Mill – a tragic figure and not just a personal tragedy, he helped take liberalism on to the wrong road (just as Walter Bagehot did).
Take the concept of defending an “institution” because that will work out for “the greatest good of the greatest number”.
Jeremy Bentham would have sacrificed those individual post masters and post mistresses – to protect the “greater good” (the greatest happiness of the greatest number). But J.S. Mill would really have agonised over this – I hope he would, in the end, have said NO (and thus tossed utilitarianism into the bin).
Of course J.S. Mill followed the David Hume “explaining” (really explaining AWAY) individual human minds (human persons) – but he also DID NOT (not emotionally). Hence his anguish – he was a deeply conflicted man.
Some people knew that Captain Dreyfus was innocent – but they still held he should be on Devil’s Island, because this would protect the reputation of the army – and, thus, the greatest good of the greatest number (the people of France). To admit that Captain Dreyfus had been framed would undermine the faith of the people in the whole system.
Much like admitting that the November 2020 election was rigged – “that would bring down the system – there would be CHAOS”.
The alternative view is “let justice be done – though the Heavens fall”.
The father of Charles De Gaulle took the latter view – as he held that the honour of the army could not be based upon a LIE.