Controversial Books | Page 370

348 Basic Constitutional Concepts One may trace the rise of this principle in English history all the way back to the signing of Magna Charta in the year 1215, when King John found it necessary to guarantee his obedience to English laws. For that matter, medieval English writers on law derived their understanding of the rule of law from ancient Roman jurisprudence. ‘‘The king himself ought not to be under man but under God, and under the Law, because the Law makes the king. Therefore let the king render back to the Law what the Law gives him, namely, dominion and power; for there is no king where will, and not Law, wields dominion.’’ So wrote Henry de Bracton, ‘‘the father of English law,’’ about the year 1260, during the reign of Henry III. This teaching that law is superior to human rulers has run consistently through English politics and jurisprudence all the way down the centuries. It was rather belligerently asserted from time to time by the English colonies in North America. This doctrine that no man is above the law applied not only to kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that ‘‘the king must not be under any man, but under God and the law.’’ In Dr. Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that judges had a right, when interpreting Acts of Parliament, to declare them null and void if they conflicted with established principles of law and justice. ‘‘And it appears in our books,’’ said Coke, ‘‘that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for 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.’’ That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial leaders. In his famous pamphlet The Rights of the British Colonies Asserted and Proved (1764), James Otis wrote: To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. . . . Parliaments are in all cases to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher