Personal Liberty under the Common Law 1200–1600

Abstract

When we set out to explore the history of liberty and freedom in English law, we immediately encounter the difficulty that neither word is found as a title in the books of common law before 1600. ‘Liberties’ and ‘franchises’ are met with often enough, but only in a narrow technical sense; they are specific privileges or exemptions, treated in effect as forms of property. It was not the usual technique for the medieval common law to deduce answers to particular problems from broad general principles such as freedom or freedoms. The nearest we get to it is in the fine phrases of clause 39 of Magna Carta (1215): No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by lawful judgment of his peers or by the law of the land. The same sentiment is echoed in Edward III's statutes of due process. But these enactments were regarded by medieval lawyers as mere declarations of the previous common law, and they did not lay down any particular remedies in case of infringement. Such legal remedies as were developed were not, until the sixteenth century, derived directly from the legislation, although theoretical links began to be made in the Tudor period. Moreover, clause 39 referred only to ‘free men’, thus explicitly indicating that there were also the unfree who were not within its spirit or its letter.