The Roots of Liberty 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 Liberty Fund Indianapolis Amagi books are published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals. The cuneiform inscription that appears in the logo and serves as a design element in all Liberty Fund books 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. © 1993 Liberty Fund, Inc. Originally published in 1993 by the Curators of the University of Missouri, University of Missouri Press, Columbia, Missouri, 65201. All rights reserved Printed in the United States of America p 1 2 3 4 5 6 7 8 9 10 Library of Congress Cataloging-in-Publication Data 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. p. cm. Originally published: Columbia: University of Missouri Press, c1993. Includes bibliographical references and index. ISbN 978-0-86597-709-9 (pbk.: alk. paper) 1. Rule of law—England—History. 2. Constitutional history— England. I. Sandoz, Ellis, 1931– KD3995 .R66 2008 342.4202ʹ9—dc22 2007039507 Liberty Fund, Inc. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 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 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] Contents Preface to the Liberty Fund Edition xi Editor’s Introduction: Fortescue, Coke, and Anglo-American Constitutionalism 1 ellis Sandoz 1. The Ancient Constitution in Medieval England 32 j. c. holt 2. The Place of Magna Carta and the Ancient Constitution in Sixteenth-Century English Legal Thought 75 christopheR w. bRooks 3. Ancient Constitutions in the Age of Sir Edward Coke and John Selden 115 paul christIansoN 4. The Jurisprudence of Liberty The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries 185 johN phIllIp Reid Epilogue: Diverse Viewpoints on Ancient Constitutionalism 309 corinne comStocK weStoN Appendix: Text and Translation of Magna Carta 335 Notes on Contributors 351 Index 353 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 sympo- sium 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 symbol- ized with greater authority than in Magna Carta and the ancient con- stitution of which it is the noblest monument. The American consti- tutional 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. Further- more, the conference itself spurred participants to renewed examina- tion of the complex subject matter we addressed. The impetus of our discussions can be traced in numerous publica- tions since we deliberated at Windsor in 1988. Representative among these is Sir James Holt’s new edition of Magna Carta (2d edition; Cam- bridge 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 mil- lennial institutions of freedom and unique devotion to individual human worth and dignity under unremitting assault, we face an ideo- logical and international conflict whose end and outcome lie nowhere [ xii ] Preface to the Liberty Fund Edition 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 The Roots of Liberty j. c. holt 1. The Ancient Constitution in Medieval England Was there an ancient constitution? The answer is “no.” It is and was a figment. Professor J. G. A. Pocock agrees as much: It may be conceded here that the term “constitution,” as used throughout this book, has not been systematically cleared of anach- ronism. There will have been a time when it was more usual to speak of “the laws” as “ancient,” after which a practice of speaking about “the constitution of government” became one of using “constitu- tion” and “government” as interchangeable terms, hardening finally into the more modern practice in which “the constitution” (un- written rather than written) could be spoken of as “ancient.” The chronology of such a process has not been attempted here. But a preliminary shy is easy enough: the Oxford English Dictionary can provide as strong a dose of skepticism for the modern historian as Du- cange does for the medieval. The first example it gives of the use of the word referring to “the mode in which a state is constituted” is from 1610 and comes from Bishop Hall’s Apology against the Brownists; it refers to Israel, not England; the second is from Clarendon in 1647. As for “the fundamental constitution of the kingdom,” much closer to our “ancient constitution,” that comes from Scotland in 1689. Sir Edward Coke, it should be noted, did not use the term in this sense. 1. J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century; a Reissue with a Retrospect (Cambridge, England, 1987), 261, n. 8. 2. “The Constitution of the Common-wealth of Israel.” 3. “Who exactly knew the frame and constitution of the kingdom.” 4. “Whereas King James the Seventh did by the advice of wicked and evil counsellers invade the fundamental constitution of the Kingdom and altered it from a legal limited monarchy, to an arbitrary despotick power” (Declaration of the Estates of Scotland, April 11, 1689). The Ancient Constitution in Medieval England [ 33 ] So in seeking the element of ancient precedent in Coke’s arguments and assumptions and in those of other antiquaries and lawyers of the sixteenth and seventeenth centuries we shall be looking for something else. And the word itself points to the route we must follow, for it leads us immediately into the realm of authority—“a decree, ordinance, law, regulation; usually one made by a superior authority, civil or ecclesi- astical, especially in Roman Law an enactment of the Emperor”; the earliest authority quoted in the Dictionary is none other than Wycliff. So constitutions had an ordaining constitutive ring to them. This was still so in the sixteenth and seventeenth centuries as the newer prescriptive sense was added to the word. If then in the ancient constitution we are pursuing an anachronism it is ours, not Coke’s or Selden’s. How it came about that the word constitution acquired this new pre- scriptive sense in the course of the seventeenth century and—a more interesting matter—how it was that Coke, Selden, and other lawyers and antiquaries of the early seventeenth century did not themselves resort to it, are questions I leave to others. I am concerned rather 5. “They studien faste and techen here owene constitucions.” The Apostolic Constitutions and the Constitutions of Clarendon are also noted in OED; on the latter see below. 6. “The statutys of kyngys, also be over-many, even as constytutyonys of the emperors were” (Starkey, 1538); “All this while our Kings and Bishops called Councels—made Ecclesiastical Lawes and constitutions in their Synods and Par- liaments” (Bramhall, 1661). 7. A very useful indication of what the answers are likely to be is provided by Corinne C. Weston, “The Theory of Mixed Monarchy under Charles I and After,” English Historical Review 75 (1960): 426–43, esp.