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John Lilburne: a Revolutionary Interprets Statutes and Common Law Due Process

Published online by Cambridge University Press:  28 October 2011

Diane Parkin-Speer
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Extract

In the history of English law and the Puritan Revolution, the Levellers are generally considered opponents of the common law, who increasingly used natural law arguments in their revolutionary propaganda. John Lilburne, one of the foremost Leveller leaders, in the tract The Legall Fundamentall Liberties of the People of England published in June 1649 and at his trial for treason in October 1649 used the common law as presented in Sir Edward Coke's The Institutes of the Laws of England and his report of Dr. Bonham's Case, to support his attack on the Rump Parliament. This was only the second use of Dr. Bonham's Case in public controversy as opposed to in a private law matter. Lilburne's reliance on The Institutes and Dr. Bonham's Case also reveals how Coke's legal thought could be integrated into revolutionary thinking, i.e., the limitation of the powers of parliament, not just through judicial review, but through individual citizens' interpretation of statutory law and their individual judgment of the validity of laws. The tenet of radical Protestantism, the supremacy of individual judgment, finds expression in Lilburne's interpretation of statutes and his belief in the limited powers of Parliament. The idea that radical Protestantism led to democratic theory and shook the foundations of established institutions is given additional support by Lilburne's propaganda and defense of himself.

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Articles
Information
Law and History Review , Volume 1 , Issue 2 , Fall 1983 , pp. 276 - 296
Copyright
Copyright © the American Society for Legal History, Inc. 1983

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References

1. Haller, William and Davies, Godfrey, The Leveller Tracts, 1647–1653 (1944; rpt. Gloucester, Mass.: Peter Smith, 1964) 36Google Scholar, 42–43, 48; Milton, John, ‘The Levellers,’ in Hughes, Merritt Y., ed., Complete Prose Works of John Milton III (New Haven, 1962) 23–27, 30–31Google Scholar; Hill, Christopher, The Century of Revolution, 1603–1714 (New York, 1966) 177–79Google Scholar.

2. Gregg, Pauline, Free-born John: A Biography of John Lilburne (London, 1961) 25, 31–32Google Scholar.

3. The Legall Fundamentall Liberties in Haller and Davies, The Leveller Tracts, supra note 1, 404.

4. Gregg, Free-born John, supra note 2, 58–59.

5. Newgate is a prison.

6. William Prynne, The Lyar Confounded, 22, quoted by Gibb, M.A., John Lilburne, the Leveller: A Christian Democrat (London, 1947) 130Google Scholar.

7. Gibb, John Lilburne, the Leveller, supra note 6, 133–34.

8. Haller and Davies dismiss the passages on the law as ‘Lilburne's characteristic legal dialectics’ and merely summarize his main arguments, The Leveller Tracts, supra note 1, 399–400. [These passages come from the first edition of the tract at the University of Iowa Library.]

9. Haller and Davies, The Leveller Tracts, supra note 1, 400.

10. Ibid. 400.

11. Ibid. 400–1.

12. Ibid. ‘Introduction,’ 20–21.

13. Legall Fundamentall Liberties, supra note 3, 9–10.

14. Ibid. 11.

15. 16 Charles I, c. 10.

16. Legall Fundamentall Liberties, supra note 3, 12.

17. Ibid. 13.

18. See Gough, J.W., Fundamental Law in English Constitutional History (Oxford, 1955) 108–12Google Scholar, for a discussion of the relation of natural law and fundamental law concepts as well as an extended definition of fundamental law. Gough also sees Lilburne as employing fundamental law rather than a fully developed concept of natural law. I believe his arguments are cogent and correct the commonly held view that natural law was a decisive influence on Lilburne's legal theory. The issue of whether fundamental law is natural law in disguise in the parliamentary controversies and judicial decisions of the seventeenth century is discussed by Haines, Charles Grove, The Revival of Natural Law Concepts (Cambridge, Mass., 1930) 36–41Google Scholar.

19. Legall Fundamentall Liberties, supra note 3, 13.

20. Coke uses the term in the phrase ‘highest Courts of ordinary Justice in this realm,’ 4 Institutes, cap. 74, 332. Lilburne's work is thoroughly saturated with the Institutes; his study of the law is deep rather than wide.

21. Lilburne and the Levellers advocate freedom of speech and the press as part of their program. In an earlier tract, Englands New Chains Discovered (1648), Lilburne argues against restraint of speech and the press by Parliament and the military officers.

22. Coke, 4 Institutes, cap. 1, fol. 41.

23. Legall Fundamentall Liberties, supra note 3, 16–17.

24. Ibid. 17–18.

25. The appeal to heaven is similar to John Locke's later conception, which is also influenced by Calvinism. Dunn, John, The Political Thought of John Locke (Cambridge, 1969) 179–83CrossRefGoogle Scholar.

26. Haller and Davies mention this concept of the breakdown of the state as part of Leveller thought. They do not attribute it to Lilburne alone. Haller and Davies, ‘Introduction,’in The Levellers Tracts, supra note 1, 36–37. See also their discussion of the Levellers and Lilburne's ‘Puritan individualism’ and the confusing in Leveller thought of natural law and the ‘light of grace,’ natural and supernatural law in the ‘Introduction,’ Ibid. 40–43.

27. Haller and Davies, The Leveller Tracts, supra note 1, 404.

28. Ibid. 434.

29. 16 Charles I. c. I.

30. Legall Fundamentall Liberties, supra note 3, 44–45.

31. Gough, Fundamental Law, supra note 18, 109.

32. Ibid. 99–103; Hughes, Complete Prose Works, supra note 1, 47–50.

33. 16 Charles I, c. 7.

34. Legall Fundamentall Liberties, supra note 3, 46–47.

35. Gough, Fundamental Law, supra note 18, 104; Gregg, Free-born John, supra note 2, 169, 197–98; Jenkins, A Discourse touching the Inconveniencies of a long-continued Parliament in Sommer's Tracts V (1911; rpt. New York, 1965) 123–24Google Scholar.

36. Sir Allen, Carleton Kemp, Law in the Making, 7th ed. (Oxford, 1964) 447–48Google Scholar; Gough, Fundamental Law, supra note 18, 31–40; Thorne, Samuel E., ed., A Discourse upon the Exposicion and Understandinge of Statutes (San Marino, Ca., 1942) 85–92Google Scholar; ‘Dr. Bonham's Case,’ 54 Law Quarterly Review 543–52 (1938); Louis B. Boudin, ‘Lord Coke and the American Doctrine of Judicial Power,’ 6 New York University Law Review 223–46 (1929); Edward S. Corwin, ‘The “Higher Law:” Background of American Constitutional Law,’ 42 Harvard Law Review 365–409 (1928–29); R.A. McKay, ‘Coke—Parliamentary Sovereignty or the Supremacy of the Law?’ 22 Michigan Law Review 215–47 (1923–24); Theodore F.T. Plucknett, ‘Bonham's Case and Judicial Review,’ 40 Harvard Review 30–37 (1926–27); McIlwain, Charles Howard, The High Court of Parliament and its Supremacy (1910; rpt. Hamden, Conn., 1962) 147–49, 286–300Google Scholar.

37. Legall Fundamentall Liberties, supra note 3, 48.

38. Ibid. 48–49.

39. 4 Institutes, cap. 74, fol. 331.

40. See for example, 323–30.

41. Lilburne's references to Parliament's Book of Declarations is a two-part work. An Exact Collection of all Remonstrances (1643) and A Collection of all the Publicke Orders, Ordinances and Declarations (1646). Haller and Davies, The Leveller Tracts, supra note 1, 434.

42. Legall Fundamentall Liberties, supra note 3, 51.

43. Ibid. 49.

44. Ibid. 49–50.

45. Ibid. 50.

46. 16 Charles I, c. 7.

47. Legall Fundamentall Liberties, supra note 3, 51.

48. Ibid. 51.

49. Gough, Fundamental Law, supra note 18, 105.

50. Legall Fundamentall Liberties, supra note 3, 51.

51. 8 Co. Rep. 118a.

52. Legall Fundamentall Liberties, supra note 3, 52.

53. Ibid. 52.

54. Ibid. 52.

55. Jenkins, A Discourse, supra note 35, 125.

56. Legall Fundamentall Liberties, supra note 3, 53.

57. Ibid. 52–53.

58. Ibid. 53.

59. Ibid. 53.

60. Wolfe, Don M. notes the connection between Protestants' Bible reading and political ideas, Leveller Manifestoes of the Puritan Revolution (1944; rpt. New York, 1967) 107Google Scholar.

61. Legall Fundamentall Liberties, supra note 3, 70.

62. Ibid. 53.

63. Gough, Fundamental Law, supra note 18, 102; Gregg, Free-born John, supra note 2, 154.

64. See Brasilford, H.N., The Levellers and the English Revolution, ed. Hill, Christopher (Stanford, 1961) 549–51Google Scholar; Frank, Joseph, The Levellers (Cambridge, Mass., 1955) 245–48CrossRefGoogle Scholar.

65. Haller and Davies, The Leveller Tracts, supra note 1, 446.

66. See Robertson, D.B., The Religious Foundations of Leveller Democracy (New York, 1951) 92–93Google Scholar. Robertson shows a curious lack of understanding in the explanation of Lilburne's concept of God and divine sovereignty. Brasilford defines Lilburne's religious faith as ‘Calvinistic Baptist’ until he became a Quaker at the end of his life. The Levellers and the English Revolution, supra note 64, 550.

67. Haller and Davies, The Leveller Tracts, supra note 1, 447.

68. Ibid. 449.

69. For a complete summary of Lilburne's pleading, see Gibb, John Lilburne, the Leveller, supra note 6, 278–94. See also Veall's, Donald comments on the trial, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970) 163–64Google Scholar.

70. 16 Charles I, c. 10.

71. The Triall of Leiut. Colonell John Lilburne (London: Theodorus Varax [Clement Walker], 1649) 6Google Scholar. The copy of the tract used is located at the University of Iowa Library. The trial record, based on this edition, is more readily available in Howell, T.B., ed., State Trials IV (London, 1816) 1270–470Google Scholar. Appended to the beginning of the tract is a statement by Lilburne, dated November 28, 1649, attesting to the impartiality of the trial account.

72. The Triall, supra note 71, 7.

73. Ibid. 7.

74. Ibid. 9.

75. Ibid. 11.

76. 16 Charles I.

77. The Triall, supra note 71, 11.

78. This is similar to the development of the idea that penal statutes should be carefully extended beyond the words, if at all; see Thorne, ‘Introduction’ in A Discourse, supra note 36, 70–71.

79. The Triall, supra note 71, 18–19.

80. Haller and Davies explain some of the seventeenth-century sources which confuse natural and supernatural law in the ‘Introduction,’ The Leveller Tracts, supra note 1, 42–47. Judge Jermin's statement would modify the view that confusing divine and natural law was peculiar to radicals unlearned in the law; The Triall, supra note 71, 22–23.

81. The Triall, supra note 71, 18–19.

82. Ibid. 15.

83. Ibid. 16.

84. See the Agreements of the People, December 22, 1648 and May 1, 1649 in Wolfe, Leveller Manifestoes of the Puritan Revolution, supra note 60, 311–21, 397–410. The 1649 Agreement is one of the documents for which he was charged with treason. The Triall, supra note 71, 58.

85. Ibid. 21–22.

86. Lilburne makes the point repeatedly in the trial; laws must be in print and in English if due process is to be a reality, if justice is to be done. One of the numerous examples occurs during the first day of the trial, The Triall, supra note 71, 31.

87. Ibid. 21.

88. See also Lilburne's use of the same argument later in The Triall, supra note 71, 45, 118. Coke, in concluding the specification that there must be at least two witnesses to prove treason according to the history of the common law, concludes: ‘The Common law herein is grounded upon the law of God expressed both in the old and the new Testament.’ In the margin he cites verses from both testaments (3 Institutes, cap. 2, fol. 26). But Lilburne takes the authority of the Scripture further and emphasizes private individual judgment more than Coke does.

89. Seaberg, R.B., ‘The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity,’ The Historical Journal 24 (1981) 797CrossRefGoogle Scholar, n. 13, notes that Lilburne was not unique in equating the golden rule with reason; his fellow Leveller, William Walwyn, also employed the concept as well as the sixteenth-century humanist. Sir Thomas Elyot.

90. The Triall, supra note 71, 41.

91. Ibid. 42.

92. Veall summarizes the law reforms achieved during the Interregnum: ‘The trials of Royalist plotters and of Lilburne during the Interregnum were a great advance on trials such as those of Raleigh under James I.’ Veall, The Popular Movement for Law Reform, supra note 69, 226.

93. The Triall, supra note 71, 13.

94. Ibid. 5–6.

95. Ibid. 9, 15, 115, 132.

96. Ibid. 12–13.

97. Ibid. 16.

98. Ibid. 47.

99. Ibid. 48, 135.

100. Ibid. 138.

101. Ibid. 48.

102. Ibid. 80, 142. Many of the exchanges between Lilburne and the judges are startling and dramatic, but one exchange between Judge Jermin and the defendant about the example of Christ on trial before Pilate is particularly revealing: ‘Judge Jermin. But Christ said afterwards, I am the Son of God, confess Mr. Lilburne, & give glory to God. L. Coll. Lilb. I thank you sir for your good law, but I can teach my selfe better.’ The Triall, -supra note 71, 80. This understated answer sums up Lilburne's confidence in individual judgment.

103. The Triall, supra note 71, 2.

104. Ibid. 29.

105. Ibid. 133.

106. Ibid. 134.

107. Ibid. 140.

108. Ibid. 141.

109. Ibid. 43.

110. Ibid. 120, 143.

111. Haller and Davies, The Leveller Tracts, supra note 1, 449.