The Influence of Legal Theory and Changing Ideas of Property on the Levellers' Franchise Campaign
At the English Putney Debates of 1647, the Army Levellers presented the Army leaders (the Grandees) with their draft constitution The Agreement of the People.(1) The most memorable part of the exchanges was the argument between the Leveller Colonel Thomas Rainsborough and the Grandee General Ireton over the franchise. Rainsborough insisted that "the poorest he that is in England hath a life to live as the greatest he; and therefore truly, sir, I think it's clear that every man that is to live under a government ought first by his own consent to put himself under that government," (2) while Ireton accused Rainsborough and other Levellers of seeking to "take away all property," maintaining that only those with a "permanent fixed interest" in the kingdom should be allowed to vote -i.e. "persons in whom all land lies, and those incorporations in whom all trading lies." (3) Ireton argued that abolishing the 40-shilling freehold property requirement for the franchise could only be justified on the basis of natural rights, and that this would lead to abolition (or redistribution) of property in general, (4) and anarchy. (5) The Grandees feared that giving political rights to all freeborn men would undermine property rights (6) and, as a corollary, the social order, (7) (though not all took such a hard-line view as Ireton: Cromwell himself was prepared to enfranchise those who had inherited copyholds, a form of tenancy). (8) As Chakravarty notes, the debate focused on the concepts of "political rights () and property rights ()." (9) This essay will examine the Leveller call to expand the franchise in the context of changing property conditions and land tenure, and influences from various legal theories, including natural rights and the Norman Yoke. This is an area of history where politics is infused with law and legalistic thinking to an extraordinary extent. (10) There is disagreement between historians over the extent of contemporary enfranchisement and political participation. The 40-shilling freehold property qualification had been in place "for centuries"(11), since the reign of Henry I when the statute of 8 Henry VI c. 7 restricted the franchise (12) (previously a household franchise) to freeholders, or to freemen of trading corporations, excluding "villeins, cottagers, farthingmen and needy persons." (13) The other qualification was being a freeman of a trading corporation.(14) The forty shilling freehold requirement disenfranchised leaseholders and small tradesmen (15) and gave increased power to the landed gentry.(16) However, Hirst and Manning have both argued that due to inflation, during the pre-Civil War period many previously excluded freeholds reached forty shilling value, creating a larger, more independent-minded electorate—more difficult for the gentry to control—while the number of elections also increased. (17) Drawing on Keith Thomas's research, Dow comments that involvement by 'the middling sort' in local government was surprisingly common, which, combined with the model of democratic participation provided by separatist churches and the political influence exerted by New Model Army common soldiers (especially in London), made a popular say in parliamentary government seem a reasonable demand.(18) By contrast, Manning emphasises the limited nature of the franchise and the uneven effect that it had on political representation, excluding the poor in some boroughs and "the well-to-do middle sort of people" in others, in addition to the problems of regional over- and under-representation caused by anomalies in the borough system.(19) There is also controversy over whether the rest of the Levellers supported Rainsborough ("the most radical" of the Army Levellers) in his call for manhood suffrage unconnected to property or status. (20) Macpherson argues that the Levellers as a group in fact meant to exclude all wage-earners and beggars, a thesis contested by Thomas, who believes that they only meant to exclude living-in servants and those permanently in receipt of poor relief (21), while Howell and Brewster's examination of the Leveller newspaper The Moderate reveals inconsistency over servant enfranchisement (22). Much recent scholarship sees the Levellers as contemplating a male householder or, alternatively, ratepayer franchise (23), finally introduced by the Second and Third Reform Acts of 1867 and 1884 (24). It is best to conclude that views on the qualification for the franchise differed within the movement and over time (25): the Levellers did not share a "coherent and unified programme." (26) Their final position on the franchise, as gauged from the third Agreement of the People (1649), would have enfranchised all men twenty-one and older with no property qualification, excluding Royalists for a period of ten years, beggars and servants. (27) This would have enfranchised independent craftsmen and tradesmen and the bulk of rural men, including copyholders and tenants-at-will.
'Property' (often spelled 'propriety') was a multi-faceted term. (29) It was generally accepted that "propriety is the ground of power, all of which comes from God and is only entrusted by him to human agents." (30) This explains why public offices were still seen as private property. (31) Ireton clearly viewed the franchise itself as a type of property, "because it was a privilege, and precisely because some were excluded from it." (32) Such thinking underlay the struggle between Ireton and Rainsborough over "what constituted a property right" (33) --Rainsborough demanded to know how the franchise "comes to be the property of some men and not of others." (34) The Levellers inverted the traditional understanding of public office by emphasising that it involved "the exercise of a public function by entrustment from the King," an idea which had previously been only secondary to that of public office as private property. (35) In this they were influenced by the parliamentarian legal and political theorist Henry Parker (36), though they differed from him in their insistence that the people retained "active political rights" and had not delegated their sovereignty to parliament (37). To the Levellers, parliamentary sovereignty could only be justified on the basis of popular sovereignty (38). Property was a source of anxiety for most social groups at the time. Before the Civil War, the gentry perceived their security of property to be under threat from Charles's taxation initiatives, the Commission for Defective Tithes, the resurrection of the Forest Laws and exploitation of wardship (39), and Charles's flirtation with Catholicism, which sparked fears that Church property would be restored (40). The King's maximization of his feudal and prerogative privileges (41) through the prerogative courts (which operated independently of the common law) (42) led to calls for the abolition of feudal tenures and the Court of Wards (43); failure to abolish them is widely seen as a trigger for the Civil War (44). Abolition of feudal tenures would have brought the gentry security of property and unfettered freedom to dispose of it. These were major establishment concerns in the emerging commercial society (45), particularly of the common lawyers such as Sir Matthew Hale and Sir Edward Coke (46), as well as Hakewill and Prynne (47). To these "pedantic legal antiquaries" security of property was "the keystone of the arch of government," an idea which influenced Ireton (48); its preservation was seen by the Puritan gentry in general as the main function of Parliament (49). The latter idea was popularised by the legal and political theorist James Harrington, who saw independence of property as a precondition for "all human liberty" (50). Indeed, Parliament was completely identified with the landowning interest at the time of the Putney Debates (51). Security of property was central to Cromwell's political thought and to his struggle with the King (52). More general trends exacerbated property-related stresses. There were high levels of social mobility --geographical (53) as well as class-based-- due to inflation, population expansion, economic depression from 1620-1650, fluctuations in the cloth trade, and, during the war, the peregrinations of the New Model Army (54). Old landed families disappeared and were replaced by parvenus, as manors changed hands with astonishing speed during the period 1540-1640 (55). Cromwell's forfeiture and selling of Royalist estates simply added to this phenomenon (56). A larger transition was also taking place: this era, and the revolution in particular, is seen by historians as accomplishing the switch from feudal, small-scale peasant farming to agrarian capitalism, an interpretation first developed by R H Tawney (57). The abolition of feudal tenures after the Civil War was "the basis for the agricultural revolution" (58) since it enabled the commercialisation and commodification of land (59). Perhaps the most anxious about property were the middling orders whom the Levellers felt they represented. The new, commercially-minded gentry who had bought the estates of the old gentry (aided by the Statute of Wills of 1540, which had eased restrictions on buying and selling land) (60) replaced the paternalistic, feudal landlord-tenant relationship with one characterised by economic rents, which "increased more rapidly than prices" (61) (leasehold rents increased sixfold in half a century) (62) and came to be known as rack-rents (63). Veall describes this process as the replacement of "traditional, customary, and indeterminate rights" with "precise, limited and determinable contracts," as land law changed "from status to contract" (64). Landlords bought out small freeholders and evicted customary tenants such as copyholders, and then rented out the land "in big units on lease" (65). The switch to agrarian capitalism often involved enclosure, which broke up the common fields (66) and brought them into "private control" (67). With their homes on the wastes demolished, and/or deprived of the extra subsistence provided by the common fields, "tens of thousands of small-holders were driven off the land or reduced to wage-labourers" (68). Enclosure contributed to the increase in vagrancy from 1560-1625, a major establishment anxiety which was addressed by the Vagrancy Act of 1656 (69), and helps to explain Ireton's insistence on the importance of a permanent fixed interest. The vagrants who crowded into London were ambitious to obtain freehold property, and many did so by emigrating to Ireland and North America (70). Important legal questions surrounded enclosures. Cottages on the wastes and commons had only recently been made illegal by a judicial decision of 1605, overturning a 1550 statute that had tempered the Statute of Merton's insistence on the lord's property rights by protecting squatters on wastes and commons (71). Enclosures themselves were perceived by many commentators, not just the Levellers (who from time to time called for them to be undone) (72), as illegal, and vigorous legal arguments were made against them (73). These arguments gained force from England's legalistic popular culture, in which there was great respect for "natural justice" and "customary rights" (74). In any community where these were threatened, the first resort was legal action (75), as when the fenmen reacted to enclosure by emphasising what they saw as their fundamental property rights (76). During the revolutionary era, when these legalistic tactics failed the people took the law into their own hands by destroying the enclosures and reclaiming the common fields (77), encouraged by the breakdown of disafforestation and enclosure schemes and forest laws (78). The anti-enclosure struggle ran parallel to that against tithes, impropriated in many parishes by laymen --nobility and gentry-- who held them as a lucrative property right (79). For the middling orders in this period, "the issue was the preservation or recovery by the community of communal wealth" under threat of appropriation by individuals (80).
The transition from feudal models of land tenure to more modern notions of property ownership introduced a distinction between outright ownership of land, which gave owners "absolute rights of exclusion," and possession, which only conferred "inferior rights --if any" (81). Copyhold tenants, who had previously enjoyed security of tenure under customary law (82), were particularly vulnerable to eviction under this new regime (83); they asserted ancient custom in vain, since custom was easily 'swallowed up' by the common law (84). When copyhold tenancies came up for renewal, the new agrarian capitalist landlords demanded that tenants prove title to their land by holding "a copy of the relevant entry in the court roll of the manor" (85), a legalistic, common law demand that many tenants, used to the regulation of copyhold tenancies in traditional manorial courts made up of the tenants themselves (86), often could not meet (87). (It should be noted, however, that inheritable copyholds with automatic succession enjoyed more security than estates for life or for "a period of years.") (88) The same legalistic new approach was applied to fines payable on renewal of a copyhold, called entry fines. The new landlords raised the fines if there was any evidence that they had been variable at some time in the past, even if they had stayed the same for many years and had been regarded as fixed by everyone including the steward of the manor (89). The relative strengths of custom and the common law in a particular region determined the fate of its copyhold tenants (90), but in general copyholds "dwindled rapidly in numbers" and were replaced by tenancies at will, which were not even protected by manorial custom (91). The 1656 statutes which confirmed the abolition of feudal tenures specifically excluded copyholders from any relief (92): the new enclosing and depopulating landlords were very well represented in the post-war parliaments (93). Those who had lost their copyholds or had been driven off the wastes or commons by enclosure took refuge in the forest areas, where freedom of tenure had traditionally been enjoyed, and which were correspondingly more radical than the "open arable areas" (94).
The Levellers reacted by demanding the conversion into freehold of copyhold tenures (which they regarded as 'base and servile tenures' imposed by William the Conqueror on a previously freeholding people) (95), though they occasionally suggested that if a copyhold could not be converted to freehold, at least the variable entry fine should be converted to "a fixed rent" (96). The Levellers' demands for wider enfranchisement beyond the freeholder class take on new significance in the light of the copyholders' plight, as does their repeated defence of 'liberty of estates' (97). Tenants who were vulnerable to eviction by their landlords could not afford to have independent political opinions, a fact which also illuminates Ireton's arguments against extending the franchise to non-freeholders (98). The Levellers' idea of restoring the common land served a similar political purpose (99): those 'illegal' cottagers who were evicted by the enclosures were usually casual labourers, and became more dependent on their employers than previously, a loss of political liberty as well as of property (100). The war itself further undermined the validity of freeholding as a basis for the franchise, with the destruction and plundering of property (101) and the dispossession of "large numbers of people" (102). A soldier could begin the war enfranchised and end it disenfranchised, simply because he had lost his freehold -a point made angrily by Rainsborough at the Putney Debates (103) and by the soldier William Clarke (104).
Ideas about property also intersect with the Levellers' commitment to fundamental natural rights, expressed in their concept of 'self-propriety,' which all are born with (105). Its meaning has been disputed. Howell and Brewster sum up the doctrine as "natural rights as property, and natural right to property" (106). To Veall it is the basis of all the rights in the Leveller programme (107), and Manning sees it as involving a man's right "to the fruit of his own labour" (108). Kennedy interprets self-propriety as inherent human liberty: since all people have "an equal property in their own liberty.... as a collection of free and equal individuals [they[ remain the 'original' of all sovereign power" (109) Like Veall, Macpherson views self-propriety as the origin of all the civil liberties and natural rights that the Levellers demanded (110), but he makes a distinction between inalienable rights (civil, economic and religious) that inhere in everyone, and those such as the franchise that could be alienated through loss of economic independence, i.e. loss of property in one's own labour (111). Full freedom was "a function of retention of the property in one's labour" so servants could not vote because their labour was subsumed into that of their masters (112), a thesis that Howell and Brewster reject due to the Leveller inconsistency on the exclusion of servants (113). Manning offers an alternative explanation of the Leveller theory of natural rights: these were derived not from property, nor from self-propriety, but from labour, so that "those who did not work had no rights" and therefore did not deserve the franchise (114). (However, this does not explain the exclusion of live-in servants.) In general, there is controversy over whether natural rights were inalienable in Leveller theory (115), or whether they could, as Macpherson suggests, be alienated through loss of economic independence. Again, this confusion is likely due to the varying viewpoints in the Leveller literature.
Braddick sees the Leveller idea of fundamental law guaranteeing civil liberty as tied to that of 'ancient rights' (116) and therefore similar to Coke's idea of fundamental law derived from a body of immemorial traditional rights (117) (providing the antiquity which gave this law its 'fundamental' quality) (118) but Thompson sees the Leveller idea as a boldly rationalist break with the past (119). Again, divergences of view between individual Levellers explain this controversy: Lilburne, to begin with, drew on Coke's Institutes (120) and shared the former's devotion to Magna Carta, while Walwyn consistently rejected it as a legacy of the Norman Conquest (121). In any case, Condren convincingly argues that the emphasis on reason and the appeal to tradition were not mutually opposed --" one was normally taken to exemplify and house the other"(122)-- and that the Levellers only switched exclusively to reason when tradition could no longer sustain their proposals (123). At Putney Ireton purposely set up a dichotomy between a constitution based on ancient rights, which "founds property" (124), and natural law, which would eliminate property (125), while in response the Levellers invoked natural law in an attempt to bridge the freeholder/copyholder distinction (126). Ideas of natural reason fed the Leveller call for popular consent to government, since only this "could give scope to reason" (127). Their concept of fundamental laws which would reserve certain powers from parliament's competence was also connected to the franchise, since it was meant to limit executive power and foster a decentralised style of government (128). The major aim of the Leveller programme was the reflection of untrammelled popular sovereignty "in a one-chamber assembly which exercised the sole legislative power in the state" (129).
Another major element in Leveller thought was the idea of the covenant, which lay behind the various Agreements of the People, documents intended to re-found the constitution (130). The Levellers believed that England had "relapsed into a 'state of nature'" and that the social contract between state and people could only be renewed through the signing of an agreement that would entrust the peoples' representative --parliament-- with authority limited and defined by the people (131). Chakravarty sees the Levellers' first Agreement of the People as the first draft written constitution in English history (132). Espousing manhood suffrage, natural justice, and a genuinely representative assembly (unfettered by the vetoes of the monarch and the House of Lords) (133), it would function as a mechanism for establishing the people's consent to the new government (134), though ultimate sovereignty would remain with the people (135). The Agreement would define the new system's "fundamental principles" (136). The Levellers were influenced by contemporary legalistic Puritan covenant theology (associated with "legal changes in forms of land ownership" and the shift to a more commercial society) (137) in which "the revealed will of God was explained in contractual terms to his people" (138). This idea had already taken on political and legal significance in the Solemn League and Covenant (139), which implicitly expanded the polity since everyone was required to sign it (140), thereby suggesting "far more radical notions of citizenship" (141) which inspired the Levellers (142). In addition to the religious element, subscribers to the Covenant were presented as "involved in a secular contract" in which they gave Parliament their allegiance in return for protection of their rights and liberties (143). Unlike covenant theologians, however, the Levellers saw the basis of political authority not as "a direct gift from God," but deriving "from an agreement between free-born men" who retain their interest in public power in order to preserve "natural equity and liberty" against private interests (144). The represented can negotiate and renew this contract between themselves and the representatives (145). The Levellers' contractual model of government was also influenced by Cromwell's insistence that the 'King is king by contract,' a rule which they applied to all sovereign rulers, including parliament (146). The Agreement had a tabula rasa premise: that "legitimate government had been dissolved" because parliament, in denying the people's liberties, had forfeited the right to govern (147), so that it was now possible "to make a complete break with the past and....fashion a brand-new constitution," a claim of which Cromwell was highly critical at Putney (148). In sharp contrast, the Grandees emphasised the continuity of previous contracts, Ireton echoing Hobbesian theory when he discussed the "permanency of government by consent" (though he rejected Hobbes' idea of natural law, as we have seen) (149). Ireton made the floodgates argument that if unjust contracts are not kept, this would undermine sanctity of contract in general (150), while Cromwell (though equally concerned about sanctity of contracts, particularly engagements already made on behalf of the Army) (151) saw it as "an act of duty to break an unrighteous engagement" (152). The Army Leveller lawyer John Wildman argued that contracts need not be kept if (in modern terms) performance has become excessively onerous, but Ireton riposted that contract (or covenant-) keeping is the basis of security of rights, especially property rights (153). The constitution is "rooted in history and in valid laws and agreements," an image of stagnation which explains Ireton's insistence that the vote should remain the property of those with a "fixed interest in the kingdom" (154). At the time contractual obligations were seen as inherited (155), illuminating both Ireton's position and Rainsborough's insistence that men could be bound "only.....by their own consent" (156).
The franchise question should also be examined in the context of the Levellers' idea of the Norman Yoke, in which their critiques of the parliamentary and justice systems went hand in hand. Anglo-Saxon England was a more egalitarian place of "lost constitutional rights" (157), representative "self-governing institutions" (158) and greater justice (159). In pre-Norman England there had been local government and administration of justice, with high levels of popular political participation (160) by a nation of freeholders, an idyllic world which had disappeared after the Conquest (161). The Norman Yoke was integral to the tabula rasa element of the Levellers' thought; in the Civil War "the people had defeated the last of the Conqueror's successors," providing a fresh start from which to establish a new constitution by the free consent of all the people (162), with decentralisation of power in general and of the legal system in particular (163). The law should be restated (164), rationalised and codified to return it to its Anglo-Saxon accessibility and fairness, and English should be used in legal proceedings (a demand which echoes Coke's rebellion against Law French and Latin in favour of writing in English) (165). The common law itself was "a badge of slavery imposed on the free people of England by the Norman Conquest" (166), (This idea was not original to the Levellers. It goes back to at least the late thirteenth century, and had earlier been articulated by John Hare) (167). The judges were "Norman intruders," in contrast to the jury, who should be judges of law as well as of fact (168). The whole legal profession was similarly tainted (lawyers should be barred from being MPs) (169) as was the centralised judicial system which had replaced the local Saxon hundred and county courts (170). Both the civil and the common law were weapons of centralisation (171). The Norman Yoke idea interacted with the Levellers' championing of the copyholders, whose plight fuelled their critique of the common law as a tool of ruling-class oppression (172). Contemporary "burdens of land tenure" and "the brutalities of the criminal law," such as the death penalty for minor property offences committed by poor men (173), were legacies of the Conquest (174). As already noted, some Levellers even rejected Magna Carta as a Norman law (174).
The idea of the Norman Yoke was shared by others at the time of the Civil War. It had (bizarrely) been exploited by the "landed opposition to the Crown" in the 1620s and early 1640s, and now the Levellers deployed it against landlords in general (176). Previously in James I's reign there had been a shift in concepts of English nationhood "from monarchy to the common law," which, in the writings of Sir Henry Spelman and John Selden, introduced a new focus on the Anglo-Saxon period as formative for English constitutional history: in their view it had established the beginnings of the common law, infusing it with the ancient Gothic instinct for "liberty and constitutional assemblies" (177). The difference between this view and that of the Levellers is that, in the Gothic theory, the Anglo-Saxon legal-constitutional tradition had not been at all affected by the Conquest (178). In this respect the Gothic differed again from Coke's view of the Norman Yoke. Coke, while he posited "an immutable and continuous tradition of the common law from the time of the Britons" (179), saw the Conquest as effecting an initial rupture in this tradition, against which Englishmen had fought back to defend their liberty and property through Parliamentary statutes and Magna Carta (180). Thus the Norman Yoke was important to Coke's thought, but unlike the Levellers he minimised the Conquest's impact on English legal traditions: to him the common law was synonymous with Anglo-Saxon legal thought. His defence of common-law, Anglo-Saxon liberties "amounted to defence of property against the state, and against non-Parliamentary taxation" (181). This Cokean theory of common-law continuity is evident in Ireton's defence of private property as deriving from history and the 'ancient constitution' (182), a concept dependent on "common-law presuppositions about the guiding importance of precedent" (183) and parliament's role as the guardian of English liberties (184). The Army Grandees were also influenced by the Gothic tradition of constitutional law, which to Ireton appeared to offer social cohesion, in contrast to the threat to private property posed by the Leveller insistence "on natural....rights" (185).
Here again, the distinction between the Levellers and both the Gothic and the Cokean legal orthodoxies centres on the controversy concerning property. The Levellers agreed with the parliamentarian interest that the (Norman) monarchy had undermined English liberties, but saw "the propertied interest" as jointly responsible (186). Coke's view of the common law as the protector of property was based on land law precedents that had built up since the eleventh century (187), and it was widely shared by other legal thinkers, including Ralegh, Gresham law professors, and Coke's great rival Bacon (188). (Indeed, a large part of the impetus for the widespread contemporary calls for law reform and systematisation, in which Coke concurred (189), came from concerns to protect private property; Bacon, for example, saw "confusion in the state of the law" as causing "insecurity to property." ) (190) Coke rationalised and championed the common law as a defence against Charles's use of residual emergency prerogative powers (191) to exact levies and fines, and raise taxes without consent of parliament (192). The result was that common law constitutionalism and legalism became one of the intellectual bases of the Revolution (193), shaped by the great constitutional conflicts centring on various test cases (Bates' Case, the Ship Money Case, and the Five Knights' Case) (194) in which the parliamentarian interest fought to establish the common law's supremacy as a bulwark of private property (195). There had been an ongoing theoretical battle between the common law, civil, and prerogative courts since the reign of James I, fuelled by James' divided allegiance to Scots civil law and English common law (196), as well as by "squabbling...over the powers of the common law and the prerogative courts" between the lawyers at the Inns of Court (197). In the common-law mindset, the ancient constitution "predated, and was somehow immune from, the royal prerogative," and parliament was expected to be "the guardian of this constitution" (198). Unsurprisingly, one of the Long Parliament's first acts was to abolish the prerogative courts, the rivals of the common law courts and a source of royal power (199).
The Cokean, parliamentarian view of the Conqueror's claim to the English throne also differed from that of the Levellers. Coke, while he idealised the Anglo-Saxon legal world, argued that William had ascended the throne "by ancient right" (200) so that "English laws and customs remained inviolate," while the Levellers saw William as illegally achieving the throne by violence, vitiating the "customs and institutions" of the Anglo-Saxons (201). These views contrasted with that of James I and Bacon that William's "right of conquest" had given his successors absolute ownership of all English property (202). However, it is important to note Seaberg's dissenting view that the Levellers objected only to the Norman judicial procedure that had been imposed on post-Conquest common law, not to the substance of the law itself (203). This would bring them much closer to Coke than is generally accepted (204).
Coke was a major influence on the Levellers through his principle that custom was the best interpreter of the common law, which they saw as giving custom primacy (205). Like peasants battling with enclosure, the Levellers wanted the legal validity of popular custom to be upheld as against the common law, which judges were using to defeat the customary claims of copyholders (206). The Levellers echoed More and Starkey before them in portraying the common law as a means of oppressing the poor (207). They wished to preserve the parallel, official communal system for dispute settlement ("arbitration by neighbours or by a respected and trusted member of the community") (208), a system which was being undermined by "the rich and powerful men" who alone could afford to take disputes to the official law-courts (209).
It is clear, therefore, that in the controversy between Levellers and Grandees, security of property was the major nexus for conflict. The Grandee attempt to portray the Levellers as communists is profoundly ironic given that the Levellers were equally committed to security of property: the right of the poor and middling to their traditional property rights. This is shown by their repeated pre-Putney agitations for liberty of person and of estate, and their reproachful allusions to lives and estates lost during the war (210). While it would be simplistic and cynical to regard the legal and political disagreements between the Levellers and Grandees as purely a function of their differing social positions, it is clear that in security of property, as in the matter of the franchise and other legal rights, the Levellers wanted equal regard to be paid to "the small man" as to the higher social orders (211). The fundamental principle of the Leveller programme was "one rule for both rich and poor" (212). --Isabel Taylor
(1) C Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (Pelican Books, London 1975) 66. (2) A Sharp (ed), The English Levellers (CUP, Cambridge 1998), 103. (3) Sharp (n 2) 103-104; G Davies, The Early Stuarts 1603-1660 (2nd edn OUP, 1959) 152; M Kishlansky, A Monarchy Transformed: Britain 1603-1714 (Allen Lane, London 1996) 176. (4) Sharp (n 2) 108-109. (5) M Mendle, 'Putney's pronouns: identity and indemnity in the great debate,' in M Mendle (ed), The Putney Debates of 1647: The Army, the Levellers and the English State (CUP, Cambridge 2001), 139;T Royle, The British Civil War: The Wars of the Three Kingdoms 1638-1660 (Palgrave Macmillan, Basingstoke 2004) 407-408; Davies (n 3) 152; G Robertson QC, 'Introduction,' in P Baker (ed), The Putney Debates: The Levellers (Verso, London 2007) xxiv. (6) P Chakravarty, "Like Parchment in the Fire": Literature and Radicalism in the English Civil War (Routledge, London 2006) 88. (7) Davies (n 3) 177. (8) Chakravarty (n 6) 91; Robertson (n 5) xxiv. (9) Chakravarty (n 6) 87. It is important to note that the 'assessment,' a land tax, was the main source of revenue. It may be, therefore, that Ireton was mentally connecting political representation with paying taxes. See R Hutton, The British Republic 1649-1660, (2nd edn St Martin's Press, New York 2000) 17. (10) G Kennedy, Diggers, Levellers, and Agrarian Capitalism: Radical Political Thought in Seventeenth Century England (Lexington Books, Plymouth 2008) 19; C Hill, The Intellectual Origins of the English Revolution Revisited (Clarendon Press, Oxford 1997) 228. (11) Robertson (n 5) xxiii. (12) C B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press, Oxford 1962) 112. (13) Hill (n 10) 364. (14) P Zagorin, The Court and the Country: The Beginning of the English Revolution (Atheneum, New York 1971) 349; Davies (n 3) 177; Macpherson (n 12) 112. (15) Robertson (n 5) xxiv. (16) Robertson (n 5) ix. (17) B Manning, The English People and the English Revolution (Heinemann Educational Books, London 1976) 2; R C Richardson, The Debate on the English Revolution (3rd edn Manchester University Press, Manchester 1998) 189-190; F D Dow, Radicalism in the English Revolution 1640-1660 (Basil Blackwell, Oxford 1985) 39. (18) Dow (n 17) 39. (19) Manning (n 17) 308-309. The Leveller leader John Lilburne's home county, County Durham, sent no representatives to Parliament at all. (20) Kennedy (n 10) 268. (21) Dow (n 17) 44; Macpherson (n 12) 115. (22) R Howell and D E Brewster, 'Reconsidering the Levellers: The Evidence of the 'Moderate',' in C Webster (ed), The Intellectual Revolution of the Seventeenth Century (Routledge & Kegan Paul Ltd, London 1974) , 91, 100. (23) J Edwards, The Radical Attitude and Modern Political Theory (Palgrave Macmillan, London 2007) 40; M Braddick, God's Fury, England's Fire: A New History of the English Civil Wars (Allen Lane, London 2008) 411; Manning (n 17) 312. (24) G E Aylmer, The Struggle for the Constitution: England in the Seventeenth Century (The Blandford Press, London 1963) 133. (25) Howell and Brewster (n 22) 85; Dow (n 17) 31-32, 43; A Wood, Riot, Rebellion and Popular Politics in Early Modern England (Palgrave, Basingstoke 2002) 167. (26) Howell and Brewster (n 22) 80, 100. (27) H N Brailsford, The Levellers and the English Revolution (Cresset Press, London 1961) 528. (28) Brailsford (n 27) 528. (29) C Condren, The Language of Politics in Seventeenth-Century England (Macmillan, Basingstoke 1994) 86-87. (30) Condren (n 29) 85. (31) D Hirst, Authority and Conflict: England 1603-1658 (Edward Arnold, London 1986) 309; Zagorin (n 14) 335. (32) L Brace, The Idea of Property in Seventeenth Century England: Tithes and the Individual (Manchester University Press, Manchester 1998) 94. (33) Royle (n 5) 409. (34) Sharp (n 2) 111. (35) Zagorin (n 14) 335. (36) Zagorin (n 14) 348. (37) Dow (n 17) 37. (38) Dow (n 17) 37. (39) L Stone, The Causes of the English Revolution 1529-1642 (Routledge & Kegan Paul Ltd, London 1972), 132; Hill (n 10) 323. (40) Stone (n 39) 132. (41) Stone (n 39) 132. (42) Stone (n 39) 132. (43) Hill (n 10) 319, 323; D Veall, The Popular Movement for Law Reform 1640-1660 (Clarendon Press, Oxford 1970) 56-57. (44) Hill (n 10) 318. (45) Hill (n 10) 228. (46) Hirst (n 31) 319. (47) Stone (n 39) 105. (48) Stone (n 39) 105. (49) Stone (n 39) 108. (50) Stone (n 39) 108. (51) Brailsford (n 27) 108, 428; Kishlansky (n 3) 195; Sharp (n 2) 105. (52) I Roots, The Great Rebellion, 1642-1660 (Batsford, London 1966) 119. (53) Stone (n 39) 111; Hill (n 1) 20. (54) Hill (n 1) 40-41, 58. (55) Stone (n 39) 110. (56) Davies (n 3) 171; Brailsford (n 27) 418-419. (57) Brailsford (n 27) 452; Richardson (n 17) 114; Kennedy (n 10) 59. (58) Hill (n 10) 319. (59) Hill (n 10) 319-320. (60) Stone (n 39) 73. (61) Stone (n 39) 68. (62) Brailsford (n 27) 420. (63) Stone (n 39) 131; Brailsford (n 27) 427-428. (64) Veall (n 43) 59. (65) Brailsford (n 27) 420; Stone (n 39) 68; Veall (n 43) 58. (66) Brailsford (n 27) 420. (67) Stone (n 39) 68. (68) Stone (n 39) 68. (69) Hill (n 1) 49-50. (70) Hill (n 1) 49. (71) Hill (n 1) 54-55. (72) J Gurney, Brave Community: The Digger Movement in the English Revolution (Manchester University Press, Manchester 2007) 105; Brailsford (n 27) 431. (73) Hill (n 1) 55. (74) D Underdown, Revel, Riot, and Rebellion: Popular Politics and Culture in England 1603-1660 (OUP, Oxford 1987) 106. (75) Underdown (n 74) 107. The legalism of the popular mindset is also evident in the New Model Army soldiers' response to the Leveller movement. They began to quote the Leveller leader Lilburne's books "as statute law," and pamphlets "voicing legal grievances and proposing legal reforms" began to be issued on behalf either of the Army or of a particular regiment, most notably The Case of the Army Truly Stated (1647). Written by the Leveller lawyer John Wildman, this focussed on the legal reform aspect of the Leveller programme. See Veall [n 43] 76-77. (76) Braddick (n 23) 234. (77) Underdown (n 74) 107; Brailsford (n 27) 426-427. (78) Hill (n 1) 54. (79) Manning (n 17) 292. (80) Manning (n 17) 292. (81) Kennedy (n 10) 74. (82) Manning (n 17) 112-113. (83) Manning (n 17) 293-294. (84) Manning (n 17) 273, 293-294; Kennedy (n 10) 74. (85) Brailsford (n 27) 438. (86) Manning (n 17) 113; Veall (n 43) 52-53. (87) Brailsford (n 27) 428. (88) Manning (n 17) 113. (89) Manning (n 17) 113-114. (90) Brailsford (n 27) 438. (91) Brailsford (n 27) 451. (92) Hill (n 10) 322. (93) Brailsford (n 27) 428. (94) Hill (n 1) 43-44. (95) Brailsford (n 27) 433, 439, 449; Hill (n 10) 318, 321; Manning (n 17) 294. (96) Brailsford (n 27) 441; Veall (n 43) 214. (97) Dow (n 17) 47; A Woolrych, Britain in Revolution 1625-1660 (OUP, Oxford 2002) 440. (98) Brailsford (n 27) 439-441. (99) Dow (n 17) 48. (100) Hill (n 1) 52. (101) Zagorin (n 14) 350. (102) Royle (n 5) 814. (103) Sharp (n 2) 106. (104) L Borot, 'Richard Overton as a milestone of English radical history: the new intertext of the civic ethos in mid-seventeenth-century England' in G Burgess (ed), English Radicalism, 1550-1850 (CUP, New York 2007) 42. (105) "For by nature we are the sons of Adam, and from him have legitimately derived a natural propriety, right and freedom" -Richard Overton, An arrow against all tyrants, Sharp (n 2) 57. (106) Howell and Brewster (n 22) 80. (107) Veall (n 43) 100-101. (108) Manning (n 17) 279. (109) Kennedy (n 10) 158. (110) Macpherson (n 12) 142. (111) Macpherson (n 12) 145. (112) Macpherson (n 12) 146. (113) Howell and Brewster (n 22) 85-86. (114) Manning (n 17) 313. (115) T Barnard, The English Republic 1649-1660 (2nd edn Longman, London 1997) 12. (116) Braddick (n 23) 443. (117) M P Thompson, 'The History of Fundamental Law in Political Thought from the French Wars of Religion to the Revolution' (1986) 91 American Historical Journal 1119. (118) Veall 66. (119) M P Thompson (n 118) 1120. D E Kennedy notes that fundamental law was also invoked by Charles' prosecutor, who, like the Levellers,"appealed to an abstract moral justice superior to....degenerated human laws reflecting the Conquest and its power relations'." See D E Kennedy, The English Revolution 1642-1649 (Palgrave Macmillan, London 2000) 133. (120) Robertson (n 5) xxi. (121) J C Davis, 'The Levellers and Christianity,' in P Gaunt (ed), The English Civil War: The Essential Readings (Blackwell Publishers, Oxford 2000) 286. (122) Condren (n 29) 159. (123) Condren (n 29) 159. (124) Chakravarty (n 6) 90-91. (125) Chakravarty (n 6) 90-91. (126) Chakravarty (n 6) 90. (127) Dow (n 17) 37. (128) Dow (n 17) 41-42. (129) Dow (n 17) 41. (130) H Höpfl and M P Thompson, 'The History of Contract as a Motif in Political Thought' (1979) 84 American Historical Review, 940. (131) Brailsford (n 27) 535; Dow (n 17) 40; Davies (n 3) 150. (132) Chakravarty (n 6) 91. Robertson similarly notes the legal-historical importance of the Leveller idea of the written constitution, which "much later took some shape in the Bill of Rights of 1689, and a more precise and potent form in the US Constitution." See Robertson (n 5) xxi. (133) Braddick (n 23) 554; Kennedy (n 120) 78. This rejection of the King's veto may also have been influenced by Henry Parker. See Braddick (n 23) 194-195. (134) Dow (n 17) 40-41. (135) Dow (n 17) 40. (136) Dow (n 17) 40. (137) E Vallance, Revolutionary England and the National Covenant: State Oaths, Protestantism and the Political Nation, 1553-1682 (The Boydell Press, Woodbridge 2005) 1. (138) A I MacInnes, The British Revolution 1629-1660 (Palgrave Macmillan, London 2005) 25. (139) Vallance (n 138) 5.
(140) Vallance (n 138) 156. (141) Vallance (n 138) 129. (142) Vallence (n 138) 133-134. (143) Vallance (n 138) 5. Stone notes that Puritan Covenant theology "tended to strengthen legalism and contractual obligation." See Stone (n 39) 102. (144) Edwards (n 23) 47. (145) Chakravarty (n 6) 72. (146) Kennedy (n 120) 80. (147) Dow (n 17) 40. (148) Davies (n 3) 150. (149) Chakravarty (n 6) 92. (150) Braddick (n 23) 515; Vallance (138) 147. (151) Davies (n 3) 151; Braddick (n 23) 515. (152) Vallance (n 138) 147. (153) Davies (n 3) 151. (154) Hirst (n 31) 278. (155) Hill (n 1) 157-158. (156) Hirst (n 31) 278. (157) Kennedy (120) 6. (158) Hill (n 10) 361 ; Dow (n 17) 37-38. (159) Veall (n 43) 170; Woolrych (98) 444. (160) Hirst (31) 275; Manning (17) 303. (161) Dow (17) 37-38. (162) Woolrych (98) 386. (163) Manning (17) 302, 305. (164) This idea is similar to Bacon's project of producing digests of cases and statute law. See Veall (n 43) 70. (165) Hill (n 10) 230. (166) Zagorin (n 14) 17; Veall (n 43)75. (167) Hill (n 10) 361, 365; Mendle (n 5) 136. (168) Chakravarty (n 6) 59; Hill (n 10) 234; Veall (n 43)100. (169) Dow (n 17) 41. (170) Manning (n 17) 271. (171) Chakravarty (n 6) 86. (172) Manning (n 17) 272-273. (173) Brailsford (n 27) 536; Hirst (n 31) 275. (174) Brailsford (n 27)536. (175) Zagorin (n 14) 17; Davis (n 122) 286; Veall (n 43) 74-75. (176) Stone (n 39) 50. (177) MacInnes (n 139) 20. (178) MacInnes (n 139)185. (179) MacInnes (n 139) 20; Chakravarty (n 6) 84. (180) Chakravarty (n 6) 84. (181) Hill (n 10) 363. Hill notes that "There is a….muddle in Coke's thought, in that he elevated both the common law and Parliament." See Hill (n 10) 225. (182) Brailsford (n 27) 431. (183) Condren (n 29) 62. (184) MacInnes (n 139) 185. (185) MacInnes (n 139) 185. (186) MacInnes (n 139) 185. (187) Chakravarty (n 6) 85. (188) Hill (n 10) 205. The campaign for legal reform (examined at length by Veall) had many distinguished supporters, including Sir Matthew Hale, who was the chairman of a law reform committee during the Long Parliament. See Hill (n 10) 233. (189) Hill (n 10) 204, 206. (190) Hill (n 10) 205. (191) Stone (n 39) 103-104. (192) Chakravarty (n 6) 82. (193) Stone (n 39) 103,136. (194) The Case of Impositions (Bates' Case) [1606] 2 St Tr 371; Five Knights Case (Darnel's Case) [1627] 3 St Tr 1; R v Hampden [1637] 3 St Tr 825. (195) Stone (n 39)104. (196) MacInnes (n 139) 22. (197) Stone (n 39) 128. (198) Stone (n 39) 104. (199) Stone (n 39) 104. (200) Veall (n 43) 66. (201) R B Seaberg, 'The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity' 24 Historical Journal, 791. (202) Hill (n 10), 362. (203) Edwards (n 23) 44. (204) Kennedy (n 10) 21. (205) Hill (n 10) 224. (206) Hill (n 10) 231. (207) Hill (n 10) 230. (208) Manning (n 17) 304. (209) Manning (n 17) 304. (210) John Lilburne, Broadsheet of August 1645, Sharp (n 2) 6; A remonstrance of many thousand citizens, Sharp (n 2) 36, 40, 41; Richard Overton, An arrow against all tyrants, Sharp (n 2) 55, 57, 68-69; William Walwyn, Gold tried in the fire, Sharp (n 2) 84); An Agreement of the People, Sharp (n 2) 97. (211) Manning (n 17) 297. (212) Manning (n 17) 297.
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