Slavery and the Magna Carta in the Development of Anglo-American Constitutionalism

Extract

If English and American constitutional thought rests on one shared foundation, it is the principle that executive power, in order to be legitimate, must be subject to law. In the thirteenth century, the English jurist Henry de Bracton declared that “the law makes the King”—rather than the King makes the law—and urged, “Let the King … bestow upon the law what the law bestows upon him, namely dominion and power, for there is no King where will rules and not law” (White 1908, 268). Bracton no doubt had in mind some of the recent provisions of the Magna Carta (1215), which provided a formal codification of this principle. The rebel barons who imposed the Magna Carta on King John were animated by a desire to limit arbitrary executive power, and, in Article 39, they secured a promise from the monarchy that “no free man shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land” (Turner 2003, 231). In the fourteenth century, Article 39 was redrafted by Parliament to apply not only to free men but also to any man “of whatever estate or condition he may be,” and this process of reinterpretation continued throughout the next several centuries as Parliament expanded “the Charter's special ‘liberties’ for the privileged classes to general guarantees of ‘liberty’ for all the king's subjects” (Turner 2003, 3).