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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 king.4

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 Christian liberty.

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 influence.5

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 despotism."22

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.

NOTES

(1) History of England (Boston, 1850), iv, Appendix 3.

(2) Sir Simonds D'Ewes, Journals of all the Parliaments during the Reign of Queen Elizabeth (London, 1682), p. 236.

(3) John Milton (New York, 1880), p. 66.

(4) Second Part of the Institutes of the Laws of England, 47.

(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, 1649).

(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 (London, 1653).

(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, 1931).

(21) Second Treatise of Government, chap. 5.

(22) The Beauties of the British Senate (London, 1786), pp. 261-292.

(23) Murtagh McDermot, A Trip to the Moon (London, 1728).

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