The Levellers and English law
Some of the earliest and most devastating criticisms of English law and lawyers were made by the Levellers in the seventeenth century in the context of revolutionary changes in English society following the Civil War and the execution of Charles I. The Leveller movement advocated popular sovereignty, extended suffrage, equality before the law and religious tolerance. The Levellers proposed radical reforms, most of which have not yet been carried out in Britain. The Levellers put forward a revolutionary programme, including the codification of the common law in a brief and intelligible handbook, the abolition of barbarous punishments and the reform of the prisons. Its keynote was decentralisation, so that the common man and his neighbours should govern themselves through their juries and elected magistrates.
HN Brailsford states that, during the 1640s, the courts were distrusted and the legal profession disliked. In Brailsford’s view, the legal profession was greedy and corrupt and its technical habit of mind was even more unintelligible to the common man than it is today. Official documents and statutes were in Latin or Norman French. Indictments were not valid until they were read out in court in Latin. The fees lawyers charged were generally felt to be exorbitant and some of them were shameless in protracting litigation until their clients were ruined. In 1653 it was said that 23,000 cases had been waiting for settlement in Chancery for ten, twenty and even thirty years.
It happened constantly, Brailsford states, that peasants allowed their cases against landlords who robbed them of their common land by enclosure to go by default, because they could not afford to hire a Chancery lawyer. Workers who had grievances against their employer were in the same position. They had no trade union and could not face the cost of litigation at Westminster whereas the employers could.
Brailsford also points out that it would be easy to compile from the memoirs of this period a long list of the fabulous fortunes made by lawyers, beginning with Sir Edward Coke who is said to have made £100,000 in a single year.
Based on innumerable and sometimes conflicting precedents, the common law could be understood and applied to particular cases only by a skilled body of professional lawyers, who levied a heavy toll on the rest of the nation and made a resort to the courts so costly that only the rather rich or the very rash would venture on litigation.
In every rank of society below the upper layer to which the legal oligarchy belonged, a dread of the law courts and a detestation of lawyers were widespread.
The Levellers invoked the law of nature. Their statements, set out in a series of manifestos, included the following:
William Walwyn, Leveller, author of the Remonstrance, July 1646:
Ye know the laws of this nation are unworthy a free people, and deserve from first to last to be considered and reduced to an agreement with common equity and right reason… Magna Carta itself being but a beggarly thing, containing many marks of intolerable bondage… the Norman way for ending of controversies was much more abusive than the English way, yet the Conqueror, contrary to his oath, introduced the Norman laws and his litigious and vexatious way amongst us. The like he did also for punishment of malefactors, controversies of all natures having before a quick and final despatch in every hundred. He erected a trade of judges and lawyers, to sell justice and injustice at his own unconscionable rate and in what time he pleased, the corruption whereof is yet remaining upon us to our continuing impoverishing and molestation.
John Lilburne, Regal Tyranny Discovered
Lilburne advocated a return to Anglo-Saxon days when men did without lawyers, whom he described as ‘canker worms and caterpillars’.
Lilburne proposed the abolition of national courts and Quarter Sessions. He advocated the Gemot which decided everything once a month in every hundred. All cases would be decided in the hundred (an Anglo-Saxon administrative district) by a jury of twelve men. The only appeal would be to the House of Commons. Lilburne also supported the idea that a register should be kept in every county for all leases and conveyances of landed property.
Brailsford’s view is that every revolution which brings a new class to power adopts as a matter of course a new system of law which embodies its own view of property and social relations. The French Revolution substituted the clarity of the Code Napoleon for the traditions of feudalism. The Russian Revolution broke with tradition and set up its own characteristic system of civil and criminal law, with a new procedure. The English Revolution was the exception. Its lawyers defeated every attempt at an organic reform of the common law. There was no Code Cromwell.
Imprisonment for debt was common: jailers, who came from the governing class and normally paid a commission to get their jobs, ran prisons as a commercial enterprise.
The Levellers believed that prison served no useful purpose. They proposed that imprisonment should only be used for safe custody until time of trial and not as a punishment for offences.
The Case of the Army truly stated
Law should be overhauled by laymen and decentralised. All laws should be codified in a single volume intelligible to everyone.
Third Agreement of the People
* All are equal before the law.
* No man may be condemned under a law passed after the commission of the offence.
* No-one may be required to incriminate himself by answering questions in a criminal case.
* All proceedings in law must be terminated within six months.
* All laws and legal proceedings must be in English.
* Any man may plead his own cause or call in whom he will to plead for him (the lawyers’ monopoly is broken).
* Imprisonment for debt to be abolished.
* Capital punishment abolished except for murder.
* All trials to be by twelve sworn men of the neighbourhood – a return to Anglo-Saxon traditions.
* All law courts in Westminster to be abolished.
* No judges appointed by central government to go on circuit.
* Codification of the civil and criminal law.
Winstanley: The Law of Freedom: True magistracy restored
* Magistrates to be elected annually.
* All citizens must work.
* Legal sanctions to include whipping, forced labour and loss of civil rights.
* Death penalty for murder, buying and selling, rape or following the trade of lawyer or priest.
Lilburne talked of ‘ridding this kingdom of those vermin and caterpillars the lawyers, the chief bane of this poor nation’.
Walwyn: …a society in which judges grew rich and potent and a wise man would let go his right or inheritance rather than be eaten to the bare bones by griping judges and avaricious lawyers, where a poor man was hanged for stealing food for his necessities and a luxurious courtier could be pardoned after killing the second or third man.