Blackstone Thought Of Constitutionalism

The beginning period of 18th century is the period just when the industrial Revolution was preparing,the economical domain will have a bigger change and the science and technology will have enormously promoted the productive forces of England.Thus society will be brought the comprehensive change and development.But the structure of England's main law which is common law is still disordered.That is obviously inconsistent with society's development.William·Blackstone arranges the common law with the method of Roman law and formes the common law well organized in the Commentaries On The Laws Of England.This book has had the profound influence to that period as well as the later period.His unique explanation to the English constitutionlism in this book has important influence to the constitutional thinker and the constitutional practice after him.But there are few person who have studied Blackstone's thought of constitutionlism.This article studes it by the method of sticking to the combination of history and theory on the base of the prevenient results and analyzes Blackstone's constitutional thought founding on the first volume of Commentaries On The Laws Of England in the article.There are three sections in this article:The first section deals with the historical origin of Blackstone's constitutional thought.One of its historical origins is the game between royal power and the parliamentary authority.It facilitates the protection of the citizen individual right and freedom.The constitutional progress of England is mostly based on the establishment of the parliamentary system.So the struggle and game between king and parliament gradually causes the establishment of system which incudes the principles of Separation of powers and Balance.Thus has safeguarded the individual right and the freedom of England.The important constitutional events are four aspects in the English history:The big conference with Magna Carta;the parliament and "the king in the parliament",petition of right and Habeas Corpus Act,English Bill of Rights and "parliamentary sovereignty".The second historical origin which facilitates the protection of the citizen individual right and freedom is the evolution between jurisdiction and royal power.With the formation of the common law,judicial organizatons gradually is separated from the administrative organ and Act of Settlement establishes that judge is independent.Thus it separates the jurisdiction from the royal power and avoids tyranny of royal power.The second section deals with the theory origin of Blackstone's constitutional thought.Its theory origin mainly includes two aspects:the theory of classical mix regime and separation of powers theory.The theory of classical mix regime is mainly displayed:in Plato's mix regime thought, Aristotle's mix regime thought and Polybius's mix regime thought.The Separation of powers theory mainly includes:Coke's constitutional thought, Locker's constitutional thought and Montesquieu's constitutional thought.The third section deals with analyzing Blackstone's constitutional thought which includes principles'of Separation of powers and balance.Firstly,the ultimate aim of constitutionlism is freedom.Blackstone thought that the principal aim of society is to protect individuals in the enjoyment of those absolute rights,which were vested in them by the immutable laws of nature.Hence it follows,that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.This kind of right is entrusts by the eternal invariable natural law to each person.Thus all government systems including the constitutional government all are constructed for the ultimate objective which guaranteed the civil liberty.These basic rights which are divided into three big kinds by Blackstone.they are:the right of personal security,the right of personal liberty and the right of private property.It needes to have one kind of regime mechanism to safeguard for the realization constitutional ultimate objective which is freedom.Secondly,safeguard of the constitution mechanism is separation of powers and Balance.Blackstone thought British constitution has quanlity of goverments which include the democracy,the aristocrcy and monarchy.This kind of constitution has three species of perfections which are wisdom of aristocrcy,goodness of the democracy and power of the monarchy and avoides the inperfections of that three forms of governments.Thus it constituted the perfectly union and the balance.The state powers mechanism of England performed separation of powers and balance:On the one hand,the legislative power,the executive power and the jurisdiction established separately:In the state power,the.sovereignty was lodged in Parliament,the executive power enjoyed by king,the jurisdiction enjoys by the court.The legislative power and the executive power do not belong to the same association or individual,so the legislature cannot entrusted oversized authority with the administrative organ.Thus the administrative organ also reduced the destruction legislature's independence and also reduced encroaches the opportunity upon citizen's freedom. Simultaneously the independent jurisdiction may brought protection to the public freedom.On the other hand,the legislative power,the executive power and the jurisdiction achieve equilibrium:Firstly,legislative authority's share:The legislative power and the executive power achieve equilibrium.The Parliament that enjoyed the supreme legislative power in general is composed by King,house of lords and house of commons and King not only enjoy legislative power as a part of Parliament but also is the administrative organ which has executive authority.Thus the constitution authority separately establishes partly.It makes a side mutually restrict other two sides and not let them overstep the suitable boundary.This kind of mechanism guarantees overnment in whole and each kind of authority may coordinately operate. Secondly,British judicature is relatively independent,the legislation and the judicature have the close relation which mainly displayed by the fact that lords and commons have certain judicial privilege.So these three kind of authorities legislative power,the executive power and the jurisdiction achieve balanced condition by partially relationes.Thirdly,the status and the influence of Blackstone's constitutional thought are:in the aspect of constitutional theory,Blackstone was not a thinker with extremely Innovativeness and he has profited from the classical mix regime theory as well as thinkers of Separation of powers theory. Blackstone combined these theories in particular Montesquieu's constitution theory to British reality.Blackstone's sovereignty of Parliament make an impact on constitution thought of Bagehot and Dicey.In the constitutional practice aspect,Blackstone's balanced mechanism of constitution thought provides the background of theory for Parliament reforms in 1832 to some extent in the English home.In US,The influences of Blackstone's constitutional thought on the American constitution were:the imitation of American constitution system to English constitution and relationship between American unique judicial characteristic with the constitutional thought of Blackstone.