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Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law [1993] The Online Library of Liberty A Project Of Liberty Fund, Inc. Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law [1993] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books and web sites is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq. To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project, please contact the Director at [email protected]. LIBERTY FUND, INC. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law Edition Used: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, edited and with an Introduction by Ellis Sandoz (Indianapolis: Liberty Fund, 2008). Editor: Ellis Sandoz Author: James Clarke Holt Author: Christopher W. Brooks Author: Paul Christianson Author: John Phillip Reid Author: Corinne Comstock Weston About This Title: This is a critical collection of essays on the origin and nature of the idea of liberty. The authors explore the development of English ideas of liberty and the relationship those ideas hold to modern conceptions of rule of law. The essays address early medieval developments, encompassing such seminal issues as the common-law mind of the sixteenth century under the Tudor monarchs, the struggle for power and authority between the Stuart kings and Parliament in the seventeenth century, and the role of the ancient constitution in the momentous legal and constitutional debate that PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law occurred between the Glorious Revolution and the American Declaration of Independence. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. except for the translations into English of Fortescue made by S.B. Chrimes which is held by Cambridge University Press 1942. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law Table Of Contents Preface to the Liberty Fund Edition The Roots of Liberty Editor’s Introduction: (not Availbale Online For Copyright Reasons) 1.: The Ancient Constitution In Medieval England (j.c. Holt) 2.: The Place of Magna Carta and the Ancient Constitution In Sixteenth-century English Legal Thought (christopher W. Brooks) 3.: Ancient Constitutions In the Age of Sir Edward Coke and John Selden (paul Christianson) 4.: The Jurisprudence of Liberty: the Ancient Constitution In the Legal Historiography of the Seventeenth and Eighteenth Centuries (john Phillip Reid) Epilogue: Diverse Viewpoints On Ancient Constitutionalism (corinne Comstock Weston) Appendix: Text and Translation of Magna Carta * The Great Charter of Henry Iii The Third Great Charter of King Henry the Third; * Notes On Contributors The editor offers grateful acknowledgment to Liberty Fund, Inc., for support of the symposium which occasioned the inquiry precipitating the contents of this book in initial draft. The editor also acknowledges with thanks permission to quote from Sir John Fortescue, De Laudibus Legum Angliae, translated and edited by S. B. Chrimes, © 1942 Cambridge University Press. Excerpts from the English translation reprinted by permission of the publisher. Salus populi suprema lex est, et libertas popula summa salus populi (The welfare of the people is the supreme law and the liberty of the people the greatest welfare of the people). —John Selden It is an undoubted and fundamental point of this so ancient common law of England, that the subject hath a true property in his goods and possessions, which doth preserve as sacred that meum et tuum that is the nurse of industry, and mother of courage, and without which there can be no justice, of which meum et tuum is the proper object. —Sir Dudley Digges There is one nation in the world whose Constitution has political Liberty for its direct purpose. —Montesquieu PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law The Rights of Magna Charta depend not on the Will of the Prince, or the Will of the Legislature; but they are inherent natural Rights of Englishmen: secured and confirmed they may be by the Legislature, but not derived from nor dependent on their Will. —Philalethes [Elisha Williams] PLL v6.0 (generated September, 2011) 6 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law [Back to Table of Contents] Preface To The Liberty Fund Edition It is with pleasure that I write a few prefatory lines for Liberty Fund’s reissue of The Roots of Liberty just twenty years after the symposium at Windsor Castle, which first elicited the scholarly studies the book contains. The devotion to liberty under law that is a hallmark of Anglo-American civilization and free government is nowhere symbolized with greater authority than in Magna Carta and the ancient constitution of which it is the noblest monument. The American constitutional tradition of which we so admiringly speak is grounded in the words and deeds brought together in this abiding centerpiece of our heritage as free men, the very liber homo announced by Magna Carta. As conference director, discussion leader, contributor, and editor of the book, I take satisfaction in seeing a new edition appear. Furthermore, the conference itself spurred participants to renewed examination of the complex subject matter we addressed. The impetus of our discussions can be traced in numerous publications since we deliberated at Windsor in 1988. Representative among these is Sir James Holt’s new edition of Magna Carta (2d edition; Cambridge University Press, 1992), with its sustained attention to the meaning of nullus liber homo, a point of our puzzlement in discussion; and there is John Phillip Reid’s The Ancient Constitution and the Origins of Anglo-American Liberty (Northern Illinois University Press, 2005), which expands chapter four of the present volume. My own efforts in the meanwhile directly continue the analysis begun then in chapters six and seven of The Politics of Truth (University of Missouri Press, 1999), which deal with Sir John Fortescue and with American religion and higher law. This new edition is both valuable in itself and timely. With our millennial institutions of freedom and unique devotion to individual human worth and dignity under unremitting assault, we face an ideological and international conflict whose end and outcome lie nowhere in sight, beyond a horizon bounded by the iron curtain of the future. The Roots of Liberty can be one small help in guiding our passage through the perplexities of these treacherous times. Ellis Sandoz September 11, 2007 PLL v6.0 (generated September, 2011) 7 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law [Back to Table of Contents] The Roots Of Liberty Editor’S Introduction: Fortescue, Coke, And Anglo-American Constitutionalism ellis sandoz [Editor: This chapter is not available online for copyright reasons.] PLL v6.0 (generated September, 2011) 8 http://oll.libertyfund.org/title/2180 Online Library of Liberty: The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo- American Tradition of Rule of Law [Back to Table of Contents] 1. The Ancient Constitution In Medieval England j. c. holt Was there an ancient constitution? The answer is “no.” It is and was a figment. Professor J. G.
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