One of the major writer whose legal thought Influence the Americas Founding Fathers |
One of the major writer whose legal thought Influence the Americas Founding Fathers
We used to know only 17 to 18 century a group thought effect the America’s Founding Fathers, in fact, a 12 century British Justice, was 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 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(a member of any of five noble ranks, baron, viscount, earl, marquis and duke, who has the right to sit in the House of Lords), 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(the action of redeeming or state of being redeemed; to buy or gain one’s freedom) 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(blame;the expression of disapproval; disgrace) - of the law, and of those 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(to be the king or queen, without holding real power), 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(a sudden idea or wish, often one that is not reasonable or sensible); the law should be properly decided with the counsel of his peers, the King giving it formal authority only after full joint deliberation(careful consideration; thorough examination of a matter) 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 battle for consultation was won when Parliament gained supremacy(the state of being supreme) over the Monarch, and Britain became a Constitutional Monarchy.
But now a new constitutional challenge would appear: the challenge of subjecting 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.
Thomasgguo note: it is very clear that constitution is only the son of the idea of constitutionalism, thus the value and conception as well as the ideologies of constitution is vital important in constitutional government. Constitutional government is the only way to escape the autocracy and dictatorship regime