The foundation for judicial independence was laid by William de Ralegh and Henri de Bracton when they set out the position that the king was subject to the law. Doing so, they asserted a principle whose presence is essential to the rule of law and whose absence has been a fatal flaw in every autocratic government from savage tribal organizations to modern totalitarian regimes. At the same time Ralegh-Bracton did not take the next step of saying that the judges could apply the law to the king. The passage in which they assert the principle but are unable to make the judges its defenders reads as follows, volume 2 of Bracton, The Laws and Customs of England (1270):
As to royal charters and acts of kings, the judges and private individuals should not and cannot question, and even if a doubt arises in them they cannot interpret them. Even as to doubtful and obscure matters--if, for example some phrase contains two meanings--the interpretation and will of the Lord King must be awaited; for it belongs to the one who legislates to provide interpretation. And even if the charter is entirely false because of an erasure or because the seal affixed is a forgery, it is better and safer that judgment proceed before the King himself. Again: no one can judge the act or charter of the King in such a way that the act of the King is annulled. But one can say that the King should do justice and do well--and by the same token will do badly if he does not-- and so impose upon him the correction of an injury, lest the King and the justices fall into the judgment of the living God because of an injustice.
The King has a superior, to wit, God. Also, the law by which he has been made King. Also, his own court, to wit, the earls and barons; because the earls are spoken of as if they were the partners of the King, and he who has a partner has a master. Therefore, if the King should be without a bridle, that is, without