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For the purpose of emphasizing democratic nature of the Constitution, it started from preamble clearly expressing who set up the form of government: “We, the people of the US”, and for what: “in order to promote the general welfare and secure the blessings of liberty to our selves and our posterity”.

Representatives of many states noted that the Constitution didn’t contain guarantees of certain basic freedoms, individual rights and civil liberties. And while the delegates of Convention didn’t feel necessary to include such guarantees in the Constitution, the public insisted on such written guarantees against tyranny. Hence the “Bill of Rights” was added to the Constitution.

The Constitution came into force in March of 1798. Bill of the Rights consisting of 10 amendments, called amendments to the Constitution, was added to it in 1791. Meanwhile, the other amendments to the Constitution were adopted – nowadays it’s about 16. But the political system created by the Constitution and the Bill of Rights is basically the same today as it was in 1790.

The Process that had been changing the world during last 200 years require to refer to Constitution as vivid creative document open to scientists and lawyers’ interpretation whose vocation is to adjust its statements with the factors which was impossible to predict when it was created.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Constitutional monarchy and the British Parliament (7)

          Long before the accession to the throne Elizabeth II, during the national historical development included revolution and civil war when one king was decapitated, and another was expelled to France, powers of monarchs passed on (to) their advisers. Nowadays these advisers - i.e. Parliament - are elected by voting of all men and the women who have reached 18-years age.

         When, for example, in November in Westminster the Queen’s throne speech opens regular session of Parliament, the voice, declaring the program of bills which are subject to discussion, belongs to the Queen, whereas words belong to the selected government. And when both chambers of Parliament accept bills, any of them cannot become the law without the application, making (pronouncing) according to the ceremony in the Norman-French language, that she decides the application, serving by a reminder on residual historical powers, to give up in the sanction.

        Paradox is that the monarch has no powers but duties. To carry these duties out he must remain immovable centre in changeable Commonwealth, being the symbol of continuity, connecting the past, the present and the future for the nation, that decides who must gain the real power by voting against one Prime Minister and his party and voting for another one and his party during (by means of) democratic elections.

        However, it shouldn’t be forgotten that in the House of Commons any Prime Minister deals with the leader of opposition officially called: “Leader of Opposition of Her Most Excellent Majesty”. In other words, the monarch in the United Kingdom is above politics (or is superior to politics).

        Politics, great and small, come and go away; differing from elected or appointed by political interests presidents, the succeed monarch remains. Even death doesn’t create the vacuum provided only that the right to succeed (right of succession) exists. «The king is dead – long life the king!». 

 

Constitutional monarchy and the British Parliament (8)

        The British constitution, unlike that of most other countries, is no written one. The existing parliamentary system which has incessantly (continually) developed since XIII century is based on set of separate laws, precedents and conventions (customs). Basically it consists of three elements – the Monarch, the House of Lords and the House of Commons. Originally both chambers were subject to the monarch. During centuries they became stronger and more influential, but this process was rough (irregular) and from time to time rather painful. Even today the enactment of parliament cannot become the law without the Royal Assent, the truth, which has been never refused since 1707. The role of the monarch now is practically reduced (brought) to pure ceremonial one: yearly the Queen arrives to parliament in the smart horse carriage (in the carriage harnessed with horses – в карете запряженной лошадьми), and dresses monarchical attire and a crown to open new session of the parliament. The monarchy is the most ancient secular institute of the United Kingdom and authority of the monarch is hereditary.

        At the same time we have to mention that in Great Britain the Queen reigns but she doesn’t rule. The United Kingdom is governed by Her Majesty’s Government in the name of the Queen who acts on the advice of her ministers. The Queen summons prorogues and dissolves Parliament; normally she opens the new session of Parliament with a speech from the throne outlining her Government’s program. 

        Before a Bill which has passed all its stages of discussion in both Houses of Parliament becomes a legal enactment it must receive the Royal Assent. As the symbolic head of the government the Queen has the power to conclude treaties, to declare war and to make peace, to annex and cede territory.

        The Queen awards various honorary titles and makes appointments to many important state offices, for instance (including), judges, army officers, members of the diplomatic corps.

 

A constitutional monarchy (power of the monarch)(5)

        The Great Britain is the parliamentary democracy with constitutional monarch - Queen Elizabeth II - in the head of the state. Political stability of the state in many respects is provided owing to (thanks to) a monarchy.

         The monarch (a king or a queen) is the official head of the State and formally is the source of sovereign authority. The terms “Monarch” and “the Crown” are related. Powers of the monarch can be subdivided on two groups: prerogative and status. Every autumn regular session of Parliament is opened by the Queen who is acting (participating) on joint session of chambers with the throne speech prepared by the Government. In it the next program of the Government is stated. The royal prerogative also includes the right to dissolve the House of Commons. The Queen appoints the Prime Minister who is the leader of the political party which has a majority in the House of Commons. The Queen has a right to appoint government ministers. She appoints judges and has a right to show mercy or pardon. As Commander-in-Chief of all armed forces, she appoints officers and awards various titles and honors to the officers of army and fleet. The Queen also has a power to appoint diplomatic representatives, to conclude international treaties, to declare war and to make peace.

        The constitution requires the Queen to be impartial in politics and she can act only on the advice of her ministers who are politically responsible for what she does.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The British Parliament

Besides the monarch, the central government of Great Britain includes the Parliament and the cabinet of ministers. The parliament is the oldest representative institution of Britain, which exists since 13^th century. Officially, the parliament originated in 1265. At first it was a representative organ for nobles and magnates, and then since 17^th century contained representatives of the burgesses. As the monarchy became weak with time, the powers of the Crown were passed on to the Parliament. At that time not only bourgeois parliamentarism was born, but also the two-party system was established.

The House of Commons is elected for 5 years, but it may extend its terms of office to any period by issuing an act. The House of Commons can be dissolved before the expiry of the legal term by a monarch’s act on the advice of the government.

The chief officer of the House of Commons is the Speaker, who is elected by the ruling party. The Speaker does not participate in the voting and is formally independent of his party, but he is given many rights. He has the right to suspend the Speaker, to reject the claims to the government, to stop the discussion of any issue, if such discussion threatens the reputation of the monarch or the government.

The House of Commons has legal powers if it has 40 members. The sessions last during most of the year with adjournments in fall and winter.

The right of the legislative initiative in the House of Commons belongs to the members of the Parliament, but in reality this right is executed by the government. The bills presented in the Parliament have to pass through 3 readings. During the first reading the bill is simply introduced and read for the first time. After that the House of Commons decides whether the bill should proceed to second reading.

The second reading is the debate on the general principles of the bill. After the detailed examination of the bill by a standing committee the third reading is conducted. During the third reading some minor amendments are made to the bill, and then the voting procedure is held. Members voting ‘Aye’ go out of the chamber through the door on the right of the Speaker, those voting ‘No’ pass into the lobby on the left. The tellers, two at each door, count the members and then the Speaker announces the voting results.

The bill that passed through all the stages becomes the Act of the Parliament and should receive the Royal Assent before it becomes the law.

 

«Право справедливости» (Law of Equity)

 

          The “Law of Equity” in its initial meaning was the special independent of Common Law system of legal regulations, which was used by the Court of Lord Chancellor in Great Britain in cases when the dispute (question) could not be settled in the Common Courts on the basis of Common Law. The word “equity” comes from the Latin “aequitas” and means “impartiality”, “equality” before the law (in the eye of the law),  in certain way -“kindness”. In the wide sense “equity” can be interpreted as yearning to honesty in relationship between people, considered not as law but ethic norm (standard), based on common sense. It can not be ignored that the presumption of Common Law unfairness underlies existence of “Law of Equity” (and Courts of Equity). Its regulations even on the early stages was becoming hard and unfitness to use in being changed historical conditions.

          The “Law of  Equity”  was made as an additional code of laws - unwritten in the beginning and then became an independent system, which made laws of the country a little more mobile and flexible. Written above can not give occasion to idealize the “Courts of Equity”. They had been being treated with distrust for a long time, because of  common belief that they did not follow invariable rules, law, and this objectively result in tyranny of judiciary.

It is known that the greatest of well-known abuses of judiciary in the USA were admitted exactly by Courts of Equity in the period of their activity in the second half of 21 century.

 

Magistrates’ Courts

Impartiality of judges is a corner stone of English Law system. We can make real separation of powers just based on it.

An ordinary citizen will more likely stand under lay magistrates’ court rather then professional judge. The largest part of British judiciary is conducted by magistrates (unpaid JPs) who hold meeting only once a week or even 2 weeks. Magistrates’ Court is in absolute contrast with pompous High Court without all their wigs, gowns and frequently without even professional lawyers.

Sources of JPs can be traced to Middle Ages, to times before bureaucracy have been originated. They were established in 1361 year in order to empower 3-4 citizens of every County to judge and punish offenders. During some centuries they had been conducting the greater part of local government duties (as an instrument of monarchy, besides most of them were both judges and Parliament members simultaneously).

Later, judges conveyed part of their functions to police and newly formed County Courts put a function of local government on themselves. Their jurisdiction extended much, for they were given divorce suits and juvenile issues to be dealt.

 

 

 

 

 

 

 

 

 

 

Executive body (USA)

Highest official of the USA is a president, who is elected with Vice-president on 4 years term. According to amendment ratified in 1951 the President is entitled to be elected just on 2 terms. As well as a right of succession of the presidential office, the Vice-president performs only head of Senate’s functions and has a right to vote in the Senate only in the event of a tie vote.

The President has a significant power, but it’s limited. As a highest official forming social policy The President often refers bills to the Congress. The President has a power of veto on each bill passed by the Congress.

This veto can be reversed only by votes of two-thirds of the Senate and House of representatives. As a leader of the party the President, who has a free access to mass media, is able to influence on public opinion concerning the laws and problems which he attaches great importance to.

The President is authorized to appoint a federal judges when vacancies occur including justices of Supreme Court. All such appointments must be approved in the Senate.

In authority of executive the President has a wide power to installment (issue) of rules and instructions determining activities of numerous departments and offices of federal government.

He is also commander-in-chief of armed forces.

The president appoints heads and high officials of the executive bodies, but most of federal (civil) servants are selected through non political system of civil service. The main offices of executive are headed by ministers (who are called as secretary), appointed by the President who forms his Cabinet. Each appointment must be approved by voting of the Senate. At present the number of these key departments is 13. Among them: State Department, Treasury Department, Department of Defense, Department of Justice, Department of the Inferior, Department of Agriculture, Department of Commerce,  Department of Labor, Department of Health and Welfare, Department of Housing and Urban development, Department of Transportation, Department of power industry and Department of Education.

By the constitution the President is a highest official responsible for relations between foreign countries. The President appoints ambassadors and other officials who need to be approved in the Senate and jointly with Secretary of State formulates and directs foreign policy of the USA. The President often represents his country abroad in consultation with heads of another country and through his subordinates also takes a negotiation about consulting an agreement with foreign countries, which enacts after ratification by votes of two-thirds in Senate. The President has also right to conclude less formal ''executive agreement'' with foreign countries which don’t need to be ratified (aren’t subject to ratify) in Senate.

 

The system of the courts (USA)

District courts in effect deal with all cases of federal jurisdiction, among them: cases of a crime punishable under federal law, tensions (debate) between the citizens of different States and so on.

In the USA criminal and civil cases are heard either in district courts (first instance) or in court of small claims of one of 50 states.

Beside of  main courts (Supreme Court, local and district courts) there are special courts in federal court system. Among them: court of claims, court of customs and patent appeals, custom court and tax court). There is own court system in each state. In most states court of small claims are magistrate and police courts.

In some states there are specialized courts. Among them: court of claims, probate court and others.

A Supreme Court meets for a session from October 2 till the middle of July. For one session Supreme Court hold about 3 thousand trials. District courts hold about 100 thousands trials. The main function of the Courts of appeals is to hear the complaints on decisions of district and some another federal courts, and other regulating agencies, for example, Federal Trade Commission and others. Courts of first instance deal with (to the point) a bulk of cases. Only person, who has a support of main political parties, may become a judge. Most of judges are former lawyer of monopoly, politicians of different levels and so on.

 

Судопроизводство в США (2)

Realization of justice on civil and criminal cases of federal jurisdiction is vested by the constitution on federal courts, hierarchy of which is headed by the Supreme Court of the USA consisting of 9 members including a Chief Justice.

All federal judges are appointed by the President (with approval of Senate) lifelong and can be removed from their offices only by the Congress impeaching them of crimes or misdemeanors.

American lawyer-theoreticians divide federal courts into 2 categories: constitutional and legislative courts.

Courts are called as constitutional if they were established on the base of Article 3 of the Constitution according to which: the judicial power of the U.S. shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish. In accordance with Article 3 district courts of the USA (federal courts of original jurisdiction dealing with cases of first instance and operating in one of the 95 courts district) and courts of appeals (intermediate first appeal instance between federal courts of first instance and Supreme Court) in number of 12 in accordance with number of appeal district were established.

Courts are classified as legislative courts if the Congress needs them for realization of authority. Court of Claims (monetary-property requests to government), Court of Customs, Tax court and others are classified as federal special courts.

 

           

 

 

 

 

 

   Районные федеральные суды США (District courts)

        The territory of 50 American states is divided into 91 districts; the district Columbia, the Panama Canal Zone, the territories of Puerto Rico and the Virgin Islands form another five districts: one for each pointed territory. There are about 100 District Courts as a whole.

        Each State has at least one District Court: the most populated States is divided into several (as many as four) districts. The Congress of the USA has to form new district courts because they are overloaded with cases, almost incredibly in some places (districts). But there is no consistency in determination of how many District Courts the certain State needs. The State which holds a less numerous population is often divided into greater number of States and on the contrary.   The number of judges one district has also varies within the very wide limits – from one (Man) to 27 (the South district of New York State).

        If the district has several judges, one of them who have been a judge for a longer time is a chief judge. But he can be a chief judge just until he has not reached 70 years of age. When all judges are more then 70 years old, the youngest one becomes the chief judge.

        The District Courts have civil jurisdiction in nearly all cases, which are under the jurisdiction of federal courts, accept those which are under the direct jurisdiction of Supreme Court of USA and court of claims.

As an exceptional jurisdiction district court as the court of prime jurisdiction tries the cases involving such matters as admiralty law, bankruptcy proceedings, copyright and patents, imposition of a fine and property seizure, prosecution consul and vice- consul of foreign countries, illegal seizing plots of land and water.

1 Судьи

   As a result of magistrate’s existence England has much less professional judges then other countries majority. When Lord Gardiner demanded in 1965 to conduct survey it has appeared that there were only 8 judges per 1million population. In contrast there were 34 judges per million population in USA. Outside the Anglo-Saxon legal system number of judges were 200 per million. English judges are the representatives of small, all-sufficient profession, for during last centuries they have been taken an honor of “His Majesty Law”.

Except for County Court judges (which can be represented from number of solicitors), all of them should be appointed from barristers in spite of the solicitors continuous protests. Thus the privilege of the court structure is supported by independent existence of London Inns of Court and other old privileges given to the Bar.     

Turning the barrister into judge is one of the oldest kinds of British promotion. Barrister, who earns about 100.000 pounds sterling annually, will have to earn only 35.000 as judge of High Court becoming a part of the most ancient system of justice. He changes highly competitive and not reliable business to absolutely reliable. A person, who has been leading all his professional life specializing in representing of suits, taking the cases of defense killers (assassins), fraudsters on and taking everlasting disputes of narrow judgment suddenly transforms into a person of impartial judgment.

Lord Chancellor appoints judges through the centralized and self conducted system, consulting with older judges and looking through the card index of barristers and their recommendations. After 15 years of conducting legal profession, barrister can successfully appeal for getting a patent “to put on silk gown”/ “taking the silk” (i.e. to become the Queen's counsel) and become one of 400 of them.

 

 

 

USA Government

Executive branch in the USA includes the President, Vice-president and Cabinet of secretaries responsible for executing and administering the laws.

''Inaugurating Day'' – the day of the beginning of presidential terms (official entry to the office of President of the USA). This procedure takes less then half a minute.

Every 4 years at noon on January 20 person elected the President staying in front of his Cabinet, Supreme Court, Congress and other welcome guests on landing place (platform) of Capitol’s eastern stairs put his hands on the Bible, then raises his right hand and repeats after Chief Justice the brief text of oath: «I do solemnly swear (or affirm) that I will faithfully execute the office of  President of the USA and will to the best of my ability preserve, protect and defend the Constitution of the USA».