The Genealogy of Liberty Prolegomena to any Declaration of Independence

John sealing the Magna Carta by Frank Wood, 1925

Liberty has a pedigree. Our freedom is not “natural,” it is an acquired inheritance, a generational bequest. This and this alone is the basis for saying that we as citizens of nation X are entitled to the freedoms this nation X embodies, while citizens of nation Y are not. Freedom is a construct forged within the context of the rule of law, in a particular polity, over time.

When we speak of natural rights, as does the US Declaration of Independence, we show no understanding of this. We prove to be oblivious to the fact that liberty has a history. We show our complete ignorance of the provenance of rights.

We Westerners have freedoms embodied in the constitutions of our nations. Where did they come from? What is the origin of these Western nations and their constitutions?

To find out, we need to go back to the Dark Ages. It may come as a shock, but the original civilizational foundation and framework for Western civilization was laid then, in those “dark” times (dark not least because of the paucity of written records, due to the low level of literacy among laypeople; all written records were the product of monks). There was a Dark Age constitution; from this baseline, there was a further development of that constitution during later medieval times; and that development culminated during the early-modern period, say the 16th century – curiously enough, also the century of the Reformation. But the fruit of this development was hijacked by imposters claiming that they themselves came up with the idea of liberty. In fact, they stood on the shoulders of giants, whom with their little feet they continue to kick.

Let’s take a closer look. The social order of the Dark Ages was the product of the melding of two forms of social order, the Roman classical, and the Germanic tribal. The Roman classical form was built on slavery. The Germanic tribal form was built on kinship. The Dark Ages social order provided the framework for superseding the two. In so doing, it established a framework for eliminating slavery altogether from its midst – the first civilizational framework in history to do so – and for establishing a pluralistic order of free association.

The basis for this new civilizational framework was covenant. The Dark Ages social order did not eliminate inequality – far from it. Rather than eliminate it, it incorporated it into a new systematic, a covenantal one based on basic understandings of human nature, ultimately rooted in the theology of the West, Augustinianism.

The key concepts to this theology derive from the threefold “ground motive” of Christianity: creation/fall/redemption. Man was created free in a state of innocence before God, but fell from that state into a state of sin, which included, in principle and in practice, the loss of freedom. Augustine formulated it this way: “But by nature, as God first created us, no one is the slave either of man or of sin. This servitude is, however, penal, and is appointed by that law which enjoins the preservation of the natural order and forbids its disturbance; for if nothing had been done in violation of that law, there would have been nothing to restrain by penal servitude” (The City of God, Dods translation, p. 694). And baptism provided, in principle, the way out of this bondage. “The old [i.e. original] state of freedom… is gained in the form of redemption through baptism, the second birth which makes a man a Christian. It is significantly called Christian freedom, and is distinguished from the bondage of those who are not baptized” (Tellenbach, Church, State, and Christian Society, p. 40).

With the conversion of Clovis and the Franks to Roman Christianity – the Christianity of Augustine – came the advent of a baptized Western Europe. And baptism received its outworking in the establishment of a covenantal framework of social bonds regulating liberty and subjection. Within this new framework, there was no rigid distinction between bond and free: all were in bondage to sin, but all were also freed by salvation in Christ; and social bonds reflected the resultant degrees of freedom. There was no longer slave or free, but only a sliding scale of relative freedom and relative bondage. The various forms of feudal bond fleshed out this understanding.

The manor was the physical location with which these bonds were associated, and the economic hub of the social order. Lord and vassal established rulership over the manor, the vassal receiving rule over the manor, and enjoying its economic provision. He gained this in exchange for services to the lord. The rule of thumb was that a manor should support the fitting out of a knight and his accompanying warhorses and entourage.

The personnel of the manor were likewise engaged in terms of a feudal bond, this time between lord and serf. Even the lowest man on the feudal totem pole enjoyed some level of freedom, and over time this freedom expanded in give-and-take fashion.

That give-and-take was determined largely by economics. The manor was transformed by the return of economic growth during the medieval renaissance of the 12th century onward. Part of the reason that there had even been a Dark Ages was the collapse of the Roman economy in the West, with an accompanying  dearth of the fuel of the pre-modern economy, silver. In the 12th century, silver production and thus monetary circulation took flight, precipitating a boom which would last a couple of centuries, and which would likewise fuel the constitutional developments of the age.

This involved the transformation of the manor. The manor was transformed from relatively self-sufficient autarchy to the center of the production of an agricultural surplus. This in turn supplied the material basis for the rise of towns and cities.

Accompanying these economic changes came changes in status, in freedom. The lord/serf relationship was transformed, in the commutation of physical services to money services, into the lord/tenant relationship. The surplus population moved into the towns and cities, where individuals gained the status of citizen. “Stadluft macht frei” (city air makes free) became the order of the day.

Henry Sumner Maine described this transformation as the shift from status to contract. By this he meant the shift from varying statuses embodying levels of freedom and privilege, to a single common status, that of citizen, with the center of gravity in human relations shifting toward contractual relations between citizens.

John Rogers Commons talked of the shift from subjection to liberty as being from unreleasable to releasable debts. An unreleasable debt cannot be repaid, and so results in the permanent subjection of the debtor to the creditor: this is the situation of the slave or the serf. A releasable debt, on the other hand, can be repaid by fulfilling the terms of the contract: therefore, the debtor does not fall into the status of permanent subjection, but retains equal status with the creditor.

So then, in the age of subjection, status is the dependent variable, contract the independent variable; in the age of liberty, the relation is reversed: status becomes the independent variable, contract the dependent variable.

These are the theoretical underpinnings of the genealogy of liberty. The praxis was hashed out in an ever-increasing number of proclamations, charters of rights and liberties, and simple prescription, arduously attained over the centuries by subjects from masters, vassals from lords, estates from monarchs, asymptotically approaching the limit of the status/contract curve. Books such as Sources of Our Liberties chronicle the advance of chartered liberty through the centuries within the Anglo-American sphere, culminating in the US Constitution and Bill of Rights.

The striking thing about Sources of Our Liberties is the shift in emphasis it shows starting in 1774, away from chartered liberties – liberty as inheritance, within the Augustinian framework – and toward the law of nature and inalienable natural rights – liberty as man’s natural condition, as if no fall had ever occurred (may we call this Pelagian? If not, why not?).

England’s “unwritten” constitution was actually an accumulation of prescriptive (unchartered but presumed granted at some point in “time immemorial”) and chartered rights and liberties. The documentary evidence of it, from Magna Carta (the “Great Charter”) to Confirmatio Cartarum to the Bill of Rights of 1689, is there for all to see. This tradition of chartered liberty, of constitutionalism, was the result of centuries of labor in England, similar to the centuries of labor other Western nations put into the process, with varying results.

But what happens in 1774? John Adams drily and succinctly sums it up. During the first Continental Congress, sitting on the committee to draw up a statement of liberties, he reports:  “Whether we should recur to the law of nature, as well as to the British constitution, and our American charters and grants. Mr. Galloway and Mr. Duane were for excluding the law of nature. I was very strenuous for retaining and insisting on it, as a resource to which we might be driven by Parliament much sooner than we were aware” (The Works of John Adams, vol. 2, p. 374).

But in that case, Mr. Adams, it is no longer a question of inheritance, of laborious acquisition, against the Augustinian backdrop of original subjection, the product of amelioration in terms of a progress in virtue. No, it is now a question of default-mode natural rights, and wherever they do not obtain, an injustice has been done. And what they even are is the open-ended $64 question, the driving force of modern politics.

Nevertheless, in terms not of speculative philosophy but of fact and history, our true Declaration of Independence is nothing other than the fruit of the Gospel as it was carried to our forefathers by the monks and priests of the Roman church during that most eventful, yet misunderstood, period of our history, the Dark Ages. The purveyors of natural liberty have conveniently jettisoned that history. They have slandered it as the age of “Barbarism and Religion,” and, purloined inheritance in hand, have gone their merry way “proclaiming liberty throughout all the land.”

What was once an inheritance has now become a natural entitlement. Which, paradoxically enough, makes the attainment of true liberty, liberty under law, a will-o’-the-wisp that fades like the Cheshire Cat, leaving only a sardonic, wistful smile.

Bowyer, the Common Law, and Monarchy

One of the writers I regularly pay attention to in matters of economics is Jerry Bowyer, chief economist of Benchmark Financial Network, regular contributor to National Review Online, CNBC, and regular guest on that network’s Kudlow and Company. Jerry usually has interesting things to say. Lately he has been emphasizing the importance of the mineral deposits located in Pennsylvania, where he lives. He has been making some telling points regarding the importance of these deposits in the current climate of energy shortage and government regulation.

But his latest offering misses the mark somewhat. Not that the point he is trying to make is wrong; it isn’t. The article of which I speak is Back to Monarchy in Land Rights?, in which Jerry argues for the benefit of the common-law regime of mineral rights, whereby private landowners enjoy the rights not only to the surface level of their property but to all underlying levels, extending straight downward. (It used to be that property rights also extended straight upward, but the government has usurped those rights in order to regulate air traffic.) This regime is contrasted by Jerry with the regime of “monarchy,” whereby the crown reserved the right to all mineral deposits, so that landowners could be dispossessed of the resources lying below the surface of their land, and that without compensation. Thus, Jerry avers, “not surprisingly, farmers went to great trouble not to find subterranean resources, and to hide any they’d uncovered.”

This was the system of the Spanish crown, and was exported to the countries Spain colonized. Thus, in Mexico, in Venezuela, the oil is the state’s, and the state exploits the oil fields. Contrast this with Pennsylvania, where private landowners hold the rights to the oil under their lands. Because mineral rights (including oil) accrue to private landowners, the first commercial oil well was located in Titusville, Pennsylvania. Private enterprise exploits resources when and where they are needed, as opposed to government agencies, which act not in terms of market needs but in terms of elite policy. “Central planning environmentalists cordon off great swaths of energy-rich property from the use of any consumers except a few disproportionately wealthy eco-tourists.”

All of this is well and good, accurate and to the point — except for one thing. And that is Jerry’s inveterate obsequiousness to natural rights ideology in general and Thomas Jefferson in particular, to which he attributes this common-law regime of private property rights. Apart from the fact that Jefferson did nothing for property rights, not even mentioning them in the Declaration of Independence — which is his sole contribution to the institutions of America — the common-law regime in which these property rights were embedded was imported from England, and the English common law is royal law.

That’s right. Common law is the product originally of the English monarchy. Including the regime of mineral rights Jerry is so quick to ascribe to the Man from Monticello. Actually, the matter is even more cumbrous than that. The convention of property rights extended straight up into the air and straight down into the ground is originally derived from Roman law (which English law absorbed early on, prior to any so-called Reception: see here.) From Cawood and Minnitt, A Historical Perspective on the Economics of the Ownership of Mineral Rights Ownership [I’m not sure if that second “ownership” in the title is intended or not!]:

However, we [South Africans] inherited the principle rule of property law from Roman Common Law. This principle stated ‘Cuius est solum eius est usque ad coelum et usqne [sic] ad inferos’-Accurcius [sic], 13th century—meaning the owner of the land is not the owner of the surface only, but also of the ‘fruits of the land’ extending to the space above (up to the heavens) and below it (to the centre of the earth). In modern terminology this simply means the
recognition of private property rights (p. 370).

Thomas Jefferson did not discover the principle of private ownership of mineral rights. Those rights were enshrined in Roman law and later royal law, at least in England, but not exclusively there. After all, the Roman law served as a common law for all of Europe, and it took special legislation to overturn its principles. Some monarchs availed themselves of that. As are governments of every stripe today. All one has to do is run a Google search for mineral rights and one will see just how complex the situation has become, with original common law rights being undermined by state legislation (as for instance with rights to air space). See for instance this discussion.

Neither Thomas Jefferson nor natural rights had anything to do with the entailing of mineral rights onto private property. It was a common law and Roman law principle. Jerry should stick to the economics of the issue and leave the history to those who are not so interested in pushing a particular ideology.