Quentin Skinner
A Third Concept of Liberty
To maintain that our basic rights and liberties are subject to being taken away with impunity is to declare that they do not have the status of rights; it is to say that they are mere licences or privileges. This is the insight that prompts them to reach for their Bracton—and indeed their Livy and Tacitus. To accept, they retort, that we hold our rights and liberties at discretion is to accept that we are living in subjection to the will of the king. But to admit that we are living in such a state of dependence is to admit that we are living not as free citizens but as slaves. The mere knowledge that the crown possesses such prerogatives serves in itself to undermine our liberty and leave us in servitude.
These arguments were vigorously deployed in the debates of 1628 about the right to imprison without cause shown. As Edward Littleton proclaimed, the effect of this prerogative is to make what he describes as 'personall libertye' dependent on the will of the king, so permitting the 'invasion' of the most fundamental freedom 'established & confirmed by the whole State.' Richard Cresheld, another common lawyer, agreed that if the crown is permitted such a right, then we 'become bondage.' To which he added, referring directly to the definition of slavery in the Digest, that this condition 'I am sure is contrary to and against the law of nature.' Later in the session Henry Sherfield, yet another lawyer, made the same point by way of distinguishing between freemen, villeins and slaves. 'If the King may imprison a freeman without a cause,' then 'he is in worse case than a villein,' for a villein at least enjoys personal liberty, whereas 'to be imprisoned without cause, that is a thraldom.' Speaking in support, Sir John Eliot agreed that without this 'common right of the subject' we are nothing better than bondmen. Summarising at the end of the session, Sir Roger North put it to the Commons that their principal duty was to question these prerogatives: we must 'save ourselves and them that sent us from being slaves.'
The belief that dependence undermines liberty was even more extensively invoked in the numerous debates about the alleged prerogative right to impose levies without consent of Parliament. The argument was first prominently deployed in the session of 1610. Thomas Wentworth opened the debate by declaring that, unless this prerogative is questioned, we might as well be sold for slaves. Later he went on to add that, if we allow this prerogative 'of imposing, even upon our lands and goods,' the effect will be to leave us 'at the mercy' of the king. Sir Thomas Hedley in his great speech about the liberties of subjects agreed that such a prerogative places the property of free subjects 'in the absolute power and command of another.' As they both insist, however, to live at the mercy or under the absolute power of another is what it means to live in slavery. Hedley reminded the Commons that Cicero ('though an heathen yet a wise man') and Tacitus had both drawn exactly this distinction between freedom and servitude. If you 'take away the liberty of the subject in his profit or property' then 'you make a promiscuous confusion of a freeman and a bound slave.'
