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The Origins Of Modern Constitutionalism|
Liberty and Authority
by Wormuth, Francis D.
|David Hume pointed out, at
least by implication, that liberty was not regarded as one of the political
values in England before the Civil Wars.1 It is true that Peter
Wentworth had read in a "little volume," "Sweet is the name of liberty, but the
thing itself a value beyond all inestimable treasure."2 It may also
be true, as Mark Pattison says,3 that John Selden inscribed in all
his books, "Liberty before everything." Nevertheless there was no cult of
liberty and no attempt to praise English institutions as affording liberty. Sir
Edward Coke, who not infrequently spoke of the liberties of subjects, had in
mind the word libertates in Magna Carta, which to him signified three things:
the laws of the land; the right of subjects to follow an occupation or practice
lawful at common law, without restriction from royal patent or charter; and the
franchises or privileges which subjects enjoyed by gift of the
Some such restricted meaning was probably in the minds of the
Parliamentarians in the earlier years of the Civil War. They represented
themselves as the champions of established law, not as innovators seeking a new
political good. It was the Levellers who first made liberty the objective of
the war. To the Levellers liberty had at least three meanings. They believed
that no man was free if he were governed without his own consent, and therefore
they demanded manhood suffrage and the abolition of monarchy and the House of
Lords. Advocates of the enfranchisement of women were not unknown. Further,
they believed that free men must enjoy immunity from government in certain
matters, chief of them religious belief; and these matters were put beyond the
reach of the national Representative in the successive Agreements of the
People. Finally, liberty was a moral quality with religious and mystical
implications, closely related to the long-disputed theological doctrine of
There are some sparks of Freedom in the minds of most, which ordinarily
lie deep, and are covered in the dark, as a spark in the ashes. This spark is
the image of God in the mind, which is indeed the man (for the divine Image
makes the man). ...
'Tis not possible for a people to be too free. True Liberty hath a clear
and light principle or rule, and a large compass, a spacious walk, 'tis not
limited or circumscribed, but by the bounds of righteousness. Liberty is the
daughter of Truth and Righteousness, and hath light within it, as the sun,
other lights are borrowed from it. Tyranny is a clog, or an eclipse, to
Freedom. God sees good that Liberty should recover but by degrees, that so the
world may be balanced with light and knowledge, according to the advance
thereof, and be more considerate in her actings. The deeper the foundation, the
surer the work. Liberty in its full appearance would darken the eye newly
recovered from blindness, the principles thereof are infused to us by degrees,
that our heads may be strengthened (not overturned) by its
With the regicide and the declaration of a commonwealth it became
necessary for the Rump Parliament to adopt liberty as a test of political
actions. In a Declaration6 of September 27, 1649, directed chiefly
against the Levellers, the Parliament asserted that greater liberty had been
achieved than anyone hoped for by the abolition of kingship and tyranny, the
deepest root and foundation of all the people's sufferings, "and Ó sure
foundation laid, for Time to erect upon it the most happy structure of a just
liberty, and settled prosperity that may be expected in this world, under the
direction and government of successive and equal representatives in
Parliament." The literary champions of the Rump adopted as their point of
departure the argument that "Royalty and Liberty have never heartily embraced
each other, or have shined together in the same splendor or beauty, but one
hath either quite extinguished, or eclipsed the other's glory."7
Marchamont Nedham wrote that "there is no difference between king and tyrant";
it is only in a free state that "this invaluable jewel of liberty" can
exist.8 These authors, however, were careful to distinguish between
an aristocracy, as Henry Robinson called the Rump, or a free state, as Nedham
called it, and a "popular anarchy" such as the Levellers desired.
The sectarians who opposed the Rump did so in the name of liberty. John
Ware warned that Parliament had the interest of privilege, which was
inconsistent with the people's freedom; "and it is possible for a society to
exercise tyranny as well as a single person."9 When the Rump was
finally expelled, Colonel Robert Overton sent to Cromwell a letter of
congratulation: "I doubt not but religion and liberty shall again flourish,
whilst tyranny and oppression, like a desolate woman, shall die
childless."10 When Cromwell frustrated their expectations, men like
Overton — Levellers, Baptists, Fifth Monarchy men — became a
permanent opposition to the new settlement.
The justification of the Cromwellian regime was the traditional apology
for mixed monarchy; it took a middle course between regal tyranny and popular
anarchy. The supporters of the Stuarts employed the same argument to justify
the old monarchy. A pamphlet of 1659, A Mirror; Wherein the Rumpers and
Fanatics ... May See Their Deformity, complained that "they have destroyed
the most glorious and excellent commonwealth, which the world could boast of; a
commonwealth which was best balanced, and most equally tempered between royal
prerogative, and popular liberty, each supporting and maintaining the other:
nor is it possible, for any form of government upon earth, more really to
secure the people's rights, than that. ..."
Leaving aside the high Tory and clerical literature of absolutism in the
closing years of the reign of Charles II, there was unanimity for two centuries
on the proposition that the genius of the English constitution lay in the
reconciliation of authority and liberty. Henry Booth, the first Earl of
Warrington, wrote that "this government has as it were extracted the good of
all other constitutions, having avoided the two extremes of tyranny and an
unbounded liberty, no government under the sun being so exact a piece of
symmetry, having so equally poised the prerogative and property that they are
mutually assistant to each other. ..."11 Viscount Halifax in his
eloquent Character of a Trimmer argued that monarchy afforded no liberty, and a
commonwealth, no quiet. "We think that a wise mean, between these two barbarous
extremes, is that which self-preservation ought to dictate to our wishes; and
we may say that we have attained this mean in a greater measure than any nation
now in being, or perhaps any we have read of, though never so much celebrated
for the wisdom and plenty of their constitutions. We take from one the too
great power of doing hurt, and yet leave enough to govern and protect us; we
take from the other, the confusion, the parity, the animosities, and the
license, and yet reserve a due care of such a liberty, as may consist with
men's allegiance." Some such passage came to be a commonplace in any discussion
of the English constitution. Frequently Tacitus' comment on Nerva and Trajan,
that "res olim dissociables ... principatum ac libertatem," were by them
reconciled, was applied to mixed monarchy.12
Sometimes the panegyrist omitted any reference to authority and
eulogized England simply as the home of liberty. Addison wrote:
"'Tis Liberty that crowns Britannia's isle, And makes her barren rocks,
and her bleak mountains smile."
Here the assumption is that the liberty afforded by mixed monarchy was
the utmost compatible with orderly political life. Bolingbroke said that simple
democracy produced not liberty but anarchy and tyranny.13 David Hume
thought that "In all governments, there is a perpetual intestine struggle, open
or secret, between AUTHORITY and LIBERTY; and neither of them can ever absolutely prevail in
the contest."14 As the result of a series of happy accidents the
English had established "the most perfect and most accurate system of liberty
that ever was found compatible with government."15 There was some
danger of gravitation into monarchical absolutism,16 but a mixture
of monarchy was necessary to the existence of liberty.17
Algernon Sidney's definition of liberty was simply an exemption from
laws to which one had not consented.18 Additional elements were
likely to be added by other writers — Marchamont Nedham had a list of
five.19 In the eighteenth century it became customary to instance as
proofs of English liberty the right to the writ of habeas corpus and the right
to trial by jury. Sometimes indictment by grand jury and freedom of the press
were added. French admirers of the British constitution praised also the
beauties of the criminal law, a strange opinion indeed.20 In
addition to all this there was a tradition which assimilated property to
liberty. John Locke considered the property produced by a man's labor to belong
to him by the same title as that by which he owned himself.21
Charles James Fox expressed this point of view in the House of Commons in 1783:
"Freedom, according to my conception of it, consists in the safe and sacred
possession of a man's property, governed by laws defined and certain; with many
personal privileges, natural, civil, and religious, which he cannot surrender
without ruin to himself; and of which to be deprived by any other power, is
An irreverent Irish author could say of one of his characters, "He was
of opinion, that the humors of the body insist as much upon liberty and
property, and are as sensible of affront as an Englishman"23;
nevertheless, these values commanded the general respect of the world.
Englishmen who sought to reform Parliamentary representation or to abolish the
impressing of seamen did so in order to bring English liberty to full
realization. The French authors who criticized the British constitution
adversely usually complained not that it was too free, but that it fell short
of this goal. In the course of the eighteenth century liberty came to be quite
generally regarded as a prime political value, and very commonly it was
identified with the mechanism of the mixed monarchy.
(1) History of England (Boston, 1850), iv,
(2) Sir Simonds D'Ewes, Journals of all the
Parliaments during the Reign of Queen Elizabeth (London, 1682), p.
(3) John Milton (New York, 1880), p.
(4) Second Part of the Institutes of the Laws of
(5) John Warr or Ware, The Privileges of the People,
or, Principles of Common Right and Freedom, Briefly Laid Open and Asserted in
Two Chapters (London, 1649).
(6) A Declaration of the Parliament of England in
Vindication and Discovering the Dangerous Practices of Several Interests,
against the Present Government, and Peace of the Commonwealth (London,
(7) [Henry Robinson,] A Short Discourse between
Monarchical and Aristocratical Government (London, 1649).
(8) A Discourse of the Excellency of a Free State,
above a Kingly Government, appended to The Case of the Commonwealth of England,
Stated (London, 1650).
(9) Op. cit. supra, n. 5.
(10) More Hearts and Hands Appearing for the Work
(11) "An Essay on Government," in The Works of the
Right Honourable Henry, Late L. Delamer, and Earl of Warrington (London,
1694), p. 37.
(12) This appears to have been introduced by Sir Winston
Churchill's Divi Britannia (1675): "Here the two great principles,
Imperium et libertas, empire and liberty, two things long incompatible,
began to encounter each other."
(13) A Dissertation upon Parties, in Works
(London, 1809), iii, 216. But cf. the Remarks upon the History of
England, in Works, ii, 118, 120, 121.
(14) Essays Moral, Political, and Literary
(London, 1889), i, 116.
(15) History of England, ii, 514.
(16) Essays, i, 125.
(17) Essays, i, 95.
(18) Discourses concerning Government, in
Works (London, 1772), p. 3.
(19) The Excellency of a Free State (London,
1656), p. 4.
(20) Gabriel Bonno, La constitution britannique
devant l'opinion franšaise de Montesquieu Ó Bonaparte (Paris,
(21) Second Treatise of Government, chap.
(22) The Beauties of the British Senate (London,
1786), pp. 261-292.
(23) Murtagh McDermot, A Trip to the Moon