¹ Pocock, J. G. A., The ancient constitution and the feudal law (N.Y.: W. W. Norton and Co., 1967 repub. of the 1957 edn), pp. 125–7, 232. In this essay, by the use of the word ‘Levellers’ I mean especially those men commonly regarded as the leaders of the group: Lilburne, in particular, the acknowledged centre of the group around whom a fraternity gathered as ‘a company of Turbyes doe about a Frogge’ (Bastwick, A just defense, 1645, E. 265.2, p. 17); Overton; Walwyn; and Wildman.Google Scholar

² Hill, Christopher, ’The myth of the Norman Yoke’, Puritanism and revolution, (London: Secker and Warburg, 1965 repub. of 1958), pp. 60, 75–7.Google Scholar (Hill’s essay was first published in Democracy and the labour movement: Essays in honour of Dona Torr, ed. Savile, John, 1954.)Google Scholar Pocock, op. cit. p. 126. See also Vann, R. T., ‘The free Anglo-Saxons: A historical myth’, Journal of the History of Ideas, xix, 2 (1958). Vann stated that the scholarship nurtured in the Inns of Court was the ‘polar opposite’ of the Leveller version of history (p. 268).Google Scholar

³ Pocock, op. cit. pp. 126–7. Skinner, Quentin, ‘History and ideology in the Puritan Revolution’, Historical Journal, viii, 2 (1965), 153–4.Google Scholar

⁴ Skinner, op. cit. pp. 153–4. Pocock, p. 127. Hill had emphasized also the movement in Leveller thought, describing it as a passage from ‘historical mythology to political philosophy’ (p. 75).

⁵ Pocock, p. 45. Gough, J. W., Fundamental law in English constitutional history (Oxford: Clarendon Press, 1955), p. 58.Google Scholar

⁶ Holinshed, Raphael, The Chronicles of England, Scotland, and Ireland (London, 1807, 6 vols.), 11, 9.Google Scholar For Daniel’s concurrence, see ‘Collection of the History of England’, Complete works, ed. Grosart, Alexander (New York: 1963, 5 vols.), iv. 133–4, 165–6, 171–2.Google Scholar For John Speed, see The Historic of Great Britaine (London, 1650 edn), p. 428.Google Scholar

⁷ Holinshed, p. 13. Daniel, pp. 171–2, 166–7.

⁸ John Speed, p. 409. Law is commonly divided into the general categories of substantive and procedural. See, for example, Plucknett, T. F. T., A concise history of the common law (Boston: Little, Brown and Co., 1956 edn), pp. 380–2.Google Scholar

⁹ Pease, T. C., The Leveller movement (Washington, D.C.: AHA, 1916), p. 132. Hill, op. cit. p. 76.Google Scholar

¹⁰ Hill, p. 76. Lilburne, The Just Mans Justification (2nd edn, 1647), E. 407. 26, p. 14. (The First Part of this tract, pp. 1–19, is the same as the original edition of the pamphlet and ends with the date 6 June 1646.) Daniel, iv, 166. Lilburne, The Just Mans Justification, pp. 14, 17.

¹¹ Lilburne, The Just Mans Justification, p. 18. Cook, John, A Vindication of the Professors and the Profession of the Law (London, 6 February 1645),Google Scholar E. 320.17, p. 66. Hill had included the relevant passages on practices and rules (pp. 76, 80, 81) and on the ‘antient frame’ (p. 81), but he did not draw any conclusions from them. Instead he focused on the one phrase taken from Daniel. For Lilburne on Magna Carta, see Just Mans… p. 17; on punctilios, p. 5; on judges, pp. 12–13; on common law bryers, see The Freemans Freedome Vindicated (London, 19June 1646), E. 341.12, p.6Google Scholar

¹² Lilburne, The Just Mans…, p. 5. On the commoner's understanding of the law, see Richard Overton, An Appeale from the Degenerate Representative Body, 1647, E. 398.28. Pocock, p. 126.

¹³ Maine wrote: ‘ So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure’ (Early law and custom, p. 389). See also Maitland, The forms of action at common law. For Lilburne's use of ‘right reason’, see The Just Mans…. p. 18. The phrase, ‘right reason of the rule’, had been used by Coke in his 9th Report, xiv. There are numerous examples of the equation of English law with reason and the law of God by sixteenth- and seventeenth-century legal writers: St Germain, Doctor and student; Sharington v. Strotton, 7 and 8 Eliz. 1 Plowden, 303ff, the judge declaring ‘For there is nothing in our law contrary to nature or reason or the law of God, but our law is agreeable to them all’; James Morice, one of those who argued against the ex officio oath, wrote that English law consisted of the prudent precepts of reason Reading on the Statute of Westminster, I, 1578); the speaker of the 1604 parliament declared that the common law was ‘grounded or drawn from the law of God, the Law of Reason, and the Law of Nature’ (7 July 1604, Commons Journal, 1, 254a); in The Justice of the Peace, etc., 1746 edn Justice Michael Dalton cited Fortescue's De Laudibus, asserting that ‘the common laws of this realm of England, receiving principally their grounds from the laws of God and Nature (which law of nature, as it pertaineth to man) is also called the law of reason’; Sir Henry Finch stated that laws against the law of reason were not properly laws at all (Law, or a discourse thereof, 1627, pp. 75–6); in 1628 Dudley Digges argued that ‘the Laws of England are grounded on Reason, more ancient then Books’ (Rushworth, Historical collections, 1, 527); Sir John Doderidge noted that the common law was ‘often styled in our books common reason’ (The English lawyer, 1631, p. 62); the conception was summed up by Coke in the Second Part of the Institutes, p. 179 - the common law was the absolute perfection of reason. To William Walwyn and the other Leveller leaders, reason meant to do unto others as one would be done to, a clear equation of the law of God with reason. Walwyn's understanding was not a peculiar one. Thomas Elyot, in The Book named the Governor, had defined reason as a counsel which bids a man ‘to do the same thing to another’ that he would have done to himself (Book in, iii, 164). In An Appeale from the Degenerate Representative Body (1647), Overton declared that reason was the fountain of all precedents. This declaration is not evidence of his political rationalism, but rather his view, in keeping with the general opinion, that the concept of giving one of his own, fairness, remained the heart of the law. (The Levellers were fond of using the phrase, ‘the letter kills, but the spirit giveth life.) Further, the statement did not imply either an aversion to precedent or a negation of its importance. Overton juxtaposed two users of precedents: those who preferred ‘formalities, formes and figures’ and those who looked to the ‘substance, life and spirit of all just precedents and Lawes’. He rebuked only the former. The juxtaposition should be seen as yet another version of the distinction between the ‘life’ of the law and its administration, or substance and practice (pp. 157, 158, 159).

¹⁴ Richard Overton, ‘A Remonstrance of Many Thousand Citizens’, 27 July 1646, Tracts on Liberty, ed. Haller, William, (New York: Columbia University Press, 1933–4, 3 vols.), 111, 4.Google Scholar

¹⁵ Pocock, p. 127.

¹⁶ On those authorities, see footnote 13. F. D. Wormuth has stated that: ‘ In the 15th century, it became usual to speak of English law as bearing some relation to the law of nature and reason, a characterization borrowed from Roman law’ (Origins of modern constitutionalism, New York: Harper and Row, 1949, p. 207). See also Gough, Fundamental law, pp. 18–19, 23. 40- Overton, ‘A Remonstrance’, pp. 3, 5.Google Scholar

¹⁷ Overton, ‘A Remonstrance’, pp. 19, 15, 12. An Alarum to the House of Lords, 31, July 1646. E. 346.8, p. 6

¹⁸ Liberty Vindicated Against Slavery, 21 Augsust, 1646, E. 351.2, pp. 19–20. Vox Plebis, or, The Peoples Out-cry Against Oppression, Injustice and Tyranny, 19 November, 1646, E. 362. 20, p. 9 (misnumbered, should be p. 7). Most historians (e.g. D. B. Robertson, The religious foundations of Leveller democracy, Joseph Frank, The Levellers, Don Wolfe, Milton in the Puritan Revolution and Pauline Gregg, Free-born John) have assumed Lilburne to be the author of Liberty Vindicated Against Slavery. However, several points militate against such an assumption and suggest Overton as the author. Lilburne had been confined to the Tower in August under heavy security. The Lords had set down in detail the precautions to be taken to ensure that he would not be able to write and certainly not to publish anything. Not even his wife was allowed access to him until September. (Lords Journal, viii, 491; Anatomy of the Lords Tyranny, 9 November 1646, E. 362.6, pp. 16–17.) It took some time for the severe restrictions to be relaxed. In Londons Liberty in Chains Discovered, p. 61, Lilburne specifically disclaimed authorship. Since the argument of the pamphlet did show a familiarity with earlier Leveller writings and with Lilburne's ideas, criticisms and experiences, the tract could very well have been authored by Overton. He was able to write from Newgate prison during this period, since a broadside appeared under his name on 9 September. Overton was well acquainted with Coke's Institutes, the major source for most of the argument, and he knew as well the historical works cited in the tract, particularly Daniel's History of England. The thesis of Liberty was continued in a November pamphlet, Vox Plebis. The author/s of that tract referred to Liberty as ‘our former treatise’. Unfortunately, the authorship of Vox Plebis has not been agreed upon. Pease and Robertson suggest Henry Marten. Pauline Gregg selects Overton, with possible assistance from Marten. Wolfe (Milton in the Puritan Revolution, NY: Thomas Nelson, 1941, p. 472) claims that‘much of this tract was probably written by Overton’. In this case, I agree with Gregg and Wolfe. Certain internal evidence suggests Overton as the author, in particular the historical arguments (cf. Englands Miserie and Remedie and A Remonstrance); the specific references to Livy's Decades and to republics in history. These had all appeared in earlier tracts written by Overton. It is very possible, however, that he was aided by Marten, and perhaps Lilburne, especially if Marten was helping to get them published. Nonetheless, I take Overton to be the guiding hand behind both Liberty Vindicated Against Slavery and Vox Plebis. Liberty, p. 6. Vox Plebis, pp. 4, 6, 9 (7).Google Scholar

¹⁹ Walwyn, William, Juries Justified (London, 1651), E. 618. 9, p. 5.Google Scholar

²⁰ For the ‘messe of pottage’ phrase, see Walwyn, , Englands Lamentable Slaverie (London, 1645), E. 304. 18, p. 4.Google Scholar

²¹ For Overton's equation of the Large Petition and Magna Carta, see ‘An Appeale from the Degenerate Representative Body the Commons’, Leveller manifestoes, ed. Wolfe, D. M. (N.Y.: Thomas Nelson, 1944), pp. 170–1.Google ScholarVox Plebis, p. 6. Rudyerd quoted in Thompson, Faith, Magna Carta, its role in the making of the English constitution 1300–1629 (Minn.: University of Minnesota Press, 1948), p. 86.Google Scholar

²² Pym quoted in Rushworth, , Historical collections (London: D. Browne, 1721–2), i, 596.Google Scholar

²³ Anon., The fundamental lawes and liberties of England 9July, 1653, E. 705.5, p. 2.

²⁴ Lieut. Col. John Lilbumes plea in law, 2nd edn, 2 July 1653 (Houghton Library, Harvard University, *EC 65. L 6275.65pb), p. 8.

²⁵ For Coke's version of the antiquity of juries, see his Third Reports, vii. On the chronicle accounts of the institution of the jury, see Holinshed, 11, 13 and Daniel, IV, 169. On Lilburne's adoption of Coke's view on the continuity of parliaments fhis quoting of the Institutes), see The Legall Fundamentall Liberties of the People of England (London, 8 June, 1649), E. 560. 14, p. 44. The argument between Hugh Peter and John Lilburne was chronicled in: A Discourse betwixt L. C. John Lilburn...and Mr Hugh Peter, (London, 1649), E. 556.26, passim and Robert Massey, The Examination and Correction of. the Discourse, B. L. 1473. bb. 12, passim.Google Scholar

²⁶ Holinshed, i, 747–8.

²⁷ Pocock, p. 53.

²⁸ Daniel, iv, 153, 149.

²⁹ Pocock, p. 51. Holinshed, 11, 21.

³⁰ Holinshed, 11, 16. Daniel, iv, 165–6. Prynne, , The Soveraign Power of Parliaments and Kingdomes (London, 1643), Part 1 PP- 51–2.Google Scholar

³¹ Vox Plebis, p. 6. Lilburne's use of the coronation oath argument figures prominently in: lnnocency and Truth Justified (1646); The Peoples Prerogative and Priviledges (1648); A Whip for the Present House of Lords (1648). See also Wildman, The Lawes Subversion (1648). For Wildman's disparagement of to the chronicles during the Putney debates, see Puritanism and liberty, ed. Woodhouse, A. S. P. (London: Dent, 1950 reprint edn), pp. 65–6; and his reliance on the argument from the oath, pp. 102–4. The Leveller understanding and use of the coronation oath as embodying the doctrine of consent was based on the traditional maxim,’ Quod omnes tangit ab omnibus debet approbari’. In the oath, that maxim was signified by the phrase, ‘quas vulgus elegerit’. These phrases appear directly in several tracts and in the record of the Putney debates. I believe the Leveller understanding was based on Prynne's analysis in the Soveraign Power of Parliaments, part 1, pp. 47, 49. 51–2.Google Scholar

³² A Reply to the House of Commons (London, 4 November, 1648), E. 470.6, pp. 6–7.Google Scholar

³³ Lilburne, The Legall Fundamental Liberties, p. 44.

³⁴ Parker, Henry, Observations upon some of his Majesties Late Answers and Expresses (London, 1642), 153 62, p. 3.Google Scholar

³⁵ Butterfield, Herbert, The Englishman and his history (Cambridge: Cambridge University Press, 1944). PP. 6, 7.Google Scholar

^36M Lilburne, John, A Declaration to the Free-Bom People (London, 1654); but especially The Legall Fundamental Liberties. Walwyn, Juries Justified (see n. 19).Google Scholar

³⁷ Lilburne, , A Remonstrance of Lieut. Col. John Lilburne (London, 1652), E. 652.5, p. 5.Google Scholar

³⁸ The Fundamental Lawes and Liberties of England, p. 2.