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English Liberty Through The Ages see also The True Story of Magna Carta What Really Happened at Runnymede The American Constitution The European Constitution links on constitutionalism One of the first major writers on the subject of English constitutional law and custom following Magna Carta was Henry Bracton.
Bracton was born, lived and worked in the southwestern county of Devon during the early 1200s (his birthdate unknown, he died in Exeter, in 1268). He was both a cleric and a justice - as indeed was common at that time, for few but the clergy could read. From 1245 he was an Itinerant Justice for King Henry III, and from 1247 to 1257 was a judge of the Coram Rege which later became the King's or Queen's Bench.His (Latin language) document On the Laws and Customs of England is one of the oldest systematic treatises on English common law. It also deals in depth with the obligations of, and disciplines upon royal power, concentrating on three major themes: that the king should himself be subject to and act within the law, that he should rule wisely and justly, and that he should rule in consultation with his peers, the "eminent men" of the land.
The king must first of all be subject to, and act within the law.
In stressing the king's relationship with the law, Bracton identifies two aspects of law and the apparent contradiction between them. One aspect of law consists of orders and regulations, and in this sense the king is the source of law. The other aspect of law is the body of custom we would now call the constitutional framework; here the king must himself be subject to law, for the king and the very institution of monarchy owe their existence to law in this constitutional sense.
So Bracton insists that "the king must be under God and under the law, because the king's position owes its very existence to the wider framework of law.
"Let him therefore in his laws, observe the due process of law through which he himself exists. For the king is not fulfilling his legal obligations when he rules by personal will, rather than by due process of law under the ultimate will of God."
Bracton also expects the king to obey his own laws, for the king, though the source of law, is not outside the law:"What the king is bound by virtue of his office to forbid to others, he ought not to do himself. Let him, therefore, temper his power by the due process of law, which is the discipline upon power, that he may live according to the laws, for the law of mankind has decreed that the lawgiver should be bound by his own laws.
"Nothing is more fitting for a sovereign than to live by and within the laws, nor is there any greater sovereignty than to govern according to the due process of law, and the sovereign ought properly to yield to the tradition and process of law that makes him king."
Bracton strengthens his argument with this forceful reference to Christian example:
"That the king must bow to the process and formality of law is parallelled in the example of Jesus Christ. Though many ways were open to Him to fulfil His destiny in the redemption of the human race, He chose to destroy the devil's work, not through the arbitrary use of His great powers, but by subjecting Himself to the existing laws of justice. In this way He willed Himself to be under the law that He might redeem all those who must live under it. He chose to use not force, but judgement."
Monarchs of England and Europe have often claimed to rule by Divine Right. The kings themselves interpreted the concept of Divine Right as placing them above and beyond the reach - or reproach - of the law, and of those whom they ruled.
Bracton however voices an earlier understanding of Rule by Divine Right, namely that the king is God's minister, and as such is under obligation to rule wisely and responsibly:"The King is vicar and minister of God on earth, and from God comes the power of justice. Therefore the King's power is that of justice, not injustice. The power of injustice is from the devil, not from God.
"The king will be the minister of him whose work he performs. Therefore as long as he does justice he is the vicar of the Eternal King, but he is the devil's minister when he deviates into injustice or injury.
"The king is called King, not from reigning, but from ruling well, since he is a king as long as he rules well but a tyrant when he oppresses by violent domination the people entrusted to his care."
Bracton also stresses the requirement of participation in the formulation of laws:
"The king should not propose or enact laws rashly by his own will or whim; the law should be properly decided with the counsel of his peers, the king giving it formal authority only after full joint deliberation and consultation."
Bracton thus set out the three major ideals of constitutional monarchy: that the king should himself be subject to and act within the law, that he should rule wisely and justly, and that he should rule in consultation with his peers.
The spirit of Magna Carta lived on and indeed thrived during the Middle Ages. In 1297 King Edward confirmed Magna Carta, declaring that the king's courts shall incorporate its provisions into the common law. Four years later in 1301, again under Edward I, the Charter was elevated to the position of a fundamental statute.
In 1594 Sir Edward Coke was appointed Attorney General to Queen Elizabeth I. Tracing the medieval origins of common law, he collected ancient precedents that later filled the volumes appearing under the title The Institutes of the Laws of England and the Reports of Sir Edward Coke Kt. in English in Thirteen Parts Compleat. A subsequent document, his Reports and Institutes were to become the basis of legal education in England and America throughout the 1700s. He was influential upon early judicial developments in America, having contributed to the Virginia Charter drawn up in 1606.
As attorney general and later chief justice, Coke attempted to impose the essential principles of constitutional discipline upon the Acts of Parliament. In his opinion given in Dr. Bonham's Case (1610) for example, Coke declared: "when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void."
While it is doubtful whether Parliament would have acknowledged then, or would accept today, such an uncompromising view of absolute judicial supremacy, this ideal would become reality some 150 years later as the US Supreme Court.
It was however, the concept of consultation which would occupy England during 1600s. As the century opened the country was ruled by a monarch who still considered himself "absolute". The execution in 1649 of Charles I who held similarly absolutist views, was a dramatically symbolic turning point. His trial and sentencing were performed not by a rabble crowd but by a "special proceeding" of Parliament created and staged with suitable solemnity similar in present-day terms to the Impeachment Proceedings of a US President, thus representing a final denial of the Divine Right of autocratic monarchs and the assertion of parliamentary supremacy.
In 1689, following the turbulent years of the Republic, William and Mary ascended the throne, the monarchy now restored at the invitation of Parliament on Parliament's own terms, and the battle for consultation was finally sealed with the Royal Assent to the Bill of Rights. As the new century dawned, Britain had become the Constitutional Monarchy it remains today.
But now a new constitutional challenge would appear: the challenge of subjecting not the king, but Parliament to constitutional discipline. Subsequent political development would attempt to ensure that, while Parliament would remain and grow as the institution of legislation and of popular representation, the power of Parliament itself should not become absolute, and Parliament should be subject to the same rules of underlying constitutional precedent which had previously been formulated to discipline monarchs.
This was the background from which America's Founding Fathers drew both fear and inspiration: fear of re-creating a new autocratic monarchy or presidency, and inspiration for the creation of a new kind of government, a government representing its people not dominating or oppressing them.
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