The Leveller movement; a study in the history and political theory of the English Great Civil War

Front matter

xO°o

To this Essay was awarded the

Herbert Baxter Adams Prize

Preface

rpHE following essay was begun seven years ago -■- as a study in Professor A. C. McLaughlin's history seminar at Chicago ; the greater part of the material on which it is based was collected in the British Museum in 191 1; and the completed essay was accepted as a doctoral dissertation at the University of Chicago in 1914.

Many persons and institutions have helped at one stage or another of the essay's progress. Professor McLaughlin suggested the subject and at every point in its development has been ready with needed advice or criticism. Professor Conyers Read of the University of Chicago has shown great interest in the study and has afforded me much help and encouragement. I have to thank the University of Chicago for permitting a resident fellowship to be partly used in foreign study; and the British Museum, the Bodleian, and the Newberry Library of Chicago for the privileges of their reading rooms. The Library of Congress and Harvard College Library have assisted me with the loan of certain rare pamphlets. Miss Addie F. Rowe has verified certain statements based on pamphlets in the Harvard College Library which the librarian did not feel free to lend. Messrs. B. F. Stevens and Brown of London have carefully rechecked very many statements, references, and quotations from pamphlets in the viii PREFACE

Thomason Collection in the British Museum.

Professor C. W. Alvord of the University of Illinois has read the essay in manuscript with a view to its literary form, and has offered valuable criticisms and suggestions. My brother has aided me greatly in improving the style and manner of presentation. Dr. H. Barrett Learned, chairman of the Publication Committee of the American Historical Association, has made himself responsible for the reading of the proof with copy and for the consistency of the printer's style in the volume; I have further to thank him for assistance in seeing the volume through the press. Miss Lucille M. Allen has assisted in the preparation of the index.

Theodore C. Pease.

Urbana, Illinois, October 4, 1916.

Contents

CHAPTER PAGE

I. The Doctrine of Parliamentary Sovereignty,

1640-1645 7

Introduction

T^HE establishment in England of a democratic ■'■ government limited and bounded by law — that in a word was the vision pursued in the midst of the political strife and confusion of the Great Civil War by the men ordinarily called Levellers. To trace the evolution of this idea and of the corollaries to it that completed the Leveller platform, to show the political machinery devised by the Levellers to promote it, and in short to sketch the history of the Leveller movement as a whole is the purpose of this essay.

The political ideas of the Levellers at the outset were perceptibly molded by two different intellectual forces. The first of these originated in the series of controversies in the years 1640-43 through which the Long Parliament advanced from the doctrine of the supremacy of the law to the doctrine of parliamentary sovereignty. The second force came from the ecclesiastical dispute centering around the Westminster Assembly that gave form and spirit to the Independent idea of church government, originating in compact and limited by the supreme law of Christ. In the course of translating this idea into politics the Levellers in successive drafts of Agreements of the People developed the concept of a written constitution originating in a compact of the sovereign people and, therefore, superior to government. Such ideas led them further still — almost to the conclusion that the interpretation of their constitution was of necessity a judicial function belonging to the courts.

So defined, the Leveller movement has more than antiquarian interest. The fact that such a thing as the Leveller party existed, and professed constitutional ideas and methods similar to those developed in American constitutional history is more than an interesting coincidence. In truth it reveals at a critical point in the development of English political institutions a trend toward the supremacy, not of government, nor of a branch of government, but of law.

Historians, it is true, have assigned the idea of the supremacy of law an important position in the earlier stages of the Puritan Revolution. They have quoted Coke's saying of 1628, "Sovereign Power is no Parliamentary word; ....

Magna Charta is such a Fellow that he will have no Sovereign,"^ and they have assigned due significance to the fact that in the Petition of Right Parliament defined the ancient statutes of the realm as a law paramount to the prerogative. On the other hand they have recognized the fact that the indirect consequence of 1640, 1660, and 1688 has been to make Parliament sovereign over the law. "We have," wrote Professor Maitland, "no irrepealable laws; all laws may be repealed by the ordinary legislature, even the conditions upon which the English and Scottish parliaments

1 Quotation adapted. John Rushworth, Historical Collections, I, 562.

agreed to merge themselves in the parliament of Great Britain. "^ In general, the meeting of the Long Parliament in 1640 is the point at which commentators center attention on the waxing idea of parliamentary supremacy, and ignore the waning idea of supremacy of law.

But while the dilemma of sovereign Parliament or absolute king is a statement of the constitutional issues of the Great Civil War sufficiently exact to put the war in its right historical perspective, the idea of supreme law did not disappear on November 3, 1640, as one might infer. The Long Parliament itself for a year maintained in its utterances that the law was sovereign; it was only as the interpreter of the law that it claimed sovereignty for itself in 1642. Moreover, from / 1645 to 1653 Levellers preached to the nation the" j need for a sovereign law to bind the Parliament. J The Levellers, therefore, as champions of supreme law, assume importance as exponents of the idea that was the necessary counterpart and opposite to the idea of absolute government.

This fact, the author thinks, has importance for both English and American constitutional history. We may not trace adequately the development of any political idea, if we ignore the opposition the idea encounters. As students of the English constitution, we can scarce hope to understand fully how a sovereign parliament came into being, until we understand also why men opposed it. Furthermore, we must remember that very

^Frederick W. Maitland, Constitutional History of England, p. 332.

much of the political theory of the American revolutionary and constitutional periods had Its background In English thought. And while this last Idea Is by no means new, the fact that a subordinate party In the Great Rebellion assumed the doctrinal position of the American Whigs In the Revolution of 1775 has hardly been emphasized. The fact that In the seventeenth-century revolution men urged the establishment of a paramount law should certainly afford us a clearer perception of the eighteenth-century revolution that finally accomplished that same end.

Furthermore, the American Revolution left embedded In American constitutional theory the principles of John Locke. The Idea that God created man free of subjection to government, the Idea that the laws of nature protected the safety and happiness of Individuals before government began, and continued after the formation of human society to protect the Individual against the tyranny of his ruler; the Idea that all just government originates In the consent of the governed; all these American political theories were stated by John Locke a year after the revolution of 1688. They had been stated by the Levellers forty years earlier in the revolution of 1 640-1 660.

The present treatment of this subject must necessarily concern itself almost exclusively with the events and theories of 1 640-1 660. Space will not permit of a comparative constitutional commentary. Similarly, attempts to trace back the Leveller ideas beyond the year 1640 are im-

INTRODUCTION S

possible in the scope of this essay. The origins of such ideas, of course, lie centuries back in the political thinking of England and Europe. It is equally impossible to appraise the various factors in the social and economic life of seventeenth-century England, that, working through the minds of the Levellers, influenced their ideas. All that can be done is to note such obvious connections between economic and social abuses and proposed remedies as were actually present to the minds of the Levellers themselves.

The material employed is in great measure the controversial pamphlet literature of the time. The dangers in its use are obvious. The need of manuscript evidence to supplement it is great; but such evidence is almost entirely lacking. Living about London in close touch with one another, the Leveller leaders naturally communicated by word of mouth rather than by letter. A few scattered pieces of correspondence exist here and there ; but in such unexpected places as to indicate the fact that the unearthing of any considerable body of correspondence throwing new light on the Levellers must be the result of accident rather than design.

For certain purposes this dearth of document material is not serious. Controversial writings are the best guide in the study of elaborated political ideas and theories. Even for the life of a man or a political party, the pamphlet material, written as it was by contemporaries with different political viewpoints, becomes a valuable and selfcorrecting source of information.

The limitations of the material, however, are great. After one has recorded the obtainable facts of the Leveller movement, he feels he has told what we may know of it, rather than what we should like to know. In the following chapters John Lilburne is assigned a greater space than probably his comparative importance in his party would justify; but the surviving material naturally groups itself around his robust and active personality. We can only conjecture who devised the ideas, the manifestos, the machinery of the Leveller party; but we know that John Lilburne was the Leveller incarnate. In his doings and his martyrdoms for principle John Lilburne illustrated and popularized the ideas of the Levellers.

The method of treatment may appear unduly partial to the Levellers. In spirit the work is frankly an appreciation, although a prepossession in favor of the Levellers has not hindered the fair statement of any evidence to their discredit at all worthy of consideration. From the days of the Levellers themselves down to the present time hostile comments have been frequent. Impartial estimates of their part in the political struggle of the English Revolution may be found in modern historians. Here the attempt is to show what is best in the men and in their ideals; to indicate the contribution they made to the world's political ideas.

CHAPTER I The Doctrine of Parliamentary Sovereignty, I 640-1 645

I. the doctrinal evolution of parliamentary sovereignty, 1 640-1 642

"POLITICAL exigencies led the Long Parliament -^ to propound during the first two years of its existence two conflicting theories of the English constitution. In 1640 Parliament met the king's claims to absolute power with the doctrine that the liberties of England were protected by fundamental law. In 1642, confronted with the necessity of waging war against the king, Parliament had to rid itself of the limitations that precedent had placed on its activity. It accomplished this end by claiming the right to interpret without appeal the fundamental laws of the kingdom. Soon all men could see that the right of Interpretation as Parliament used it involved the right to make and set aside laws at pleasure. The power to interpret the constitution of the kingdom was the bridge that carried the Long Parliament from the doctrine of the supremacy of the law to the doctrine of the supremacy of Parliament.

But in 1640 the Parliament leaders were concerned with criticising the illegal acts of others, not with seeking legal justification for their own. In the expressed opinion of the leaders of the Long

Parliament the dangers confronting England arose from assumption of undue power by the king, the bishops, and the judges. The twelve common-law justices at Westminster in their answer to the king's question regarding the lawfulness of ship money had laid down the principle that the king, in case of a great and declared necessity, of the imminence of which he alone was judge, might require financial aid of his subjects without the intervention of a parliament. Subjected to such interpretation every law and liberty of the English people lay at the mercy of the king's whim. "Such Art," said a parliamentary pamphleteer, "hath been used to deny, traverse, avoid, or frustrate the true force, or meaning of all our Lawes and Charters, that if wee grant Ship-money upon these grounds, with Ship-money wee grant all besides."^ One of the judges, Robert Berkeley, had expressed himself more bluntly than his fellows. On one occasion he had asserted that in certain cases judges on the bench were above an act of Parliament; on another he had announced "that there was a Rule of Law, and a Rule of Government, and that many things which might not be done by the Rule of Law, might be done by the Rule of Government. "^ The king himself, in a declaration published at the dissolution of the Short Parliament, had denounced

1 The Case of Shipmony briefly discoursed, p. 2. Henry Parker. November 3, 1640. E. 204 (4). The numbers given here and hereafter are the British Museum pressmarks.

* John Rushworth, Historical Collections, II, 364, 323. (Cited hereafter as Rushworth.)

the Commons for censuring the government, "as if kings were bound to give an account of their regal actions, and of their manner of government, to their subjects assembled in Parliament."^ The representative assembly of the Church of England had endorsed the doctrine of king and judges. The bishops and delegates assembled in convocation after the dissolution of the Short Parliament had promulgated a series of canons that based the king's title on divine right, enjoined an extreme form of passive obedience on his subjects, and pronounced that in consideration of the divine right of their ruler they owed him tribute, subsidy, and aid. Nor had the churchmen failed to discover a higher sanction than the statute law for their own position in the state. In one of the canons of 1640 they had prescribed to laymen an oath of fidelity to the church government as it then stood. Certain bishops, too, claimed that they held their bishoprics by divine right rather than by the law of the land.* Bishops, king, and judges, all alike appeared to be setting themselves above the law of the land.

However, the great mass of the members of the Long Parliament who worked in concert during the first months of 1641, acted on a far different theory

' Cobbett, Parliamentary History, II, 578.

* Constitutions and Canons Ecclesiasticall. 1640. E. 203 (2). The oath mentioned above, the " Et Cetera Oath," had employed an et cetera to sum up the church government which the taker of the oath swore to maintain — "Archbishops, Bishops, Deanes, and Archdeacons, &c." To the Puritans this was a deUcious commentary on the divine origin claimed for the episcopal hierarchy.

of the place of king, church, and courts in the English constitution. Their definitions of monarchy, of prerogative, of the function of Parliament, all pointed to one central theory — the supremacy of law.

In terming the English constitution a balanced monarchy, they implied the belief that the king, although supreme ruler of the nation, was bound by the law. They drew a distinction between what the king could do as a man and what he could do as a king; or, as Oliver St. John had put it in the argument on ship money, between the king's natural power and his legal power. They admitted that the law of England called the king the fountain of justice: they admitted that the law of England called itself the king's law. But they emphasized the fact that the king could lawfully dispense justice only through his courts and enact the law of England only through his High Court of Parliament. They admitted that the crown of England, in so far as It dispensed its benefits to the subject through constitutional Institutions, was absolute; but, they said, it was absolute only because an act of the king not according to law was not an act of the crown. ^

In so limiting the absolute authority of the king, they stripped the word prerogative of the sanctity with which judges, bishops, and king had sought to invest it. Prerogative, said the

^ Rushworth, II, 485. St. John's statement is almost certainlytypical of the average member's view. See also, Mr. Speakers Speech in the Lords House of Parliament. June 22, 1641. E. 198 (23).

men of 1640, was a special privilege pertaining to the king for the defense of his subjects and the support of his personal dignity;® but the extent of the prerogative and the manner in which the subject was bound to supply the king with money for its support were strictly defined by the fundamental laws of the land, unalterable save by the assent of king and people in Parliament.^ In 1640 most Englishmen were ready to pronounce the fundamental laws of England a special bounty of divine Providence, so perfectly were those laws contrived to the end of keeping the balance even between the due liberty of the subject and the due prerogative of the king.*

^ "The Law of Nature best determines, that all Princes being publike Ministers for the common good, that their authority ought to be of sufficient latitude for that common good; and since Scripture is not expresse concerning that latitude, as to all people, the same not being to all alike necessary, the severall Lawes of severall Countries best teach that certaine latitude." A Discourse Concerning Puritans. Henry Parker. 1641. E. 204 (3) p. 47.

^Oliver St. John on ship money in 1637. Rushworth, II, 483-485.

* "by the true fundamentall constitutions of England, the beame hangs even between the Kang and the Subject; the Kings power doth not tread under foot the peoples liberty, nor the peoples liberty the kings power." The Case of Shipmony, p. 7.

"Prerogative and liberty are both necessary to this kingdom; and, like the sun and moon, give a lustre to this benighted nation, so long as they walk at their equal distances; but when one of them shall venture into the other's orb, like those planets in conjunction, they then cause a deeper eclipse. What shall be the compass then, by which these two must steer? Why nothing but the same by which they are, the law." An Honourable . . . Speech spoken in . . . Parliament. By Mr. Smith. Oct. 28, 1641, E. 199 (8). In Harleian Miscellany, V,ll.

See also Sir John Holland's speech on grievances, Nov. 7, 1640. Parliamentary History, II, 648; The Speech Or Declaration Of The Lord Faulkland, Jan. 14, 1640/1, E. 196 (26).

Accordingly, the leaders of the Long Parliament in opposing the extensions of the prerogative based their arguments on the fundamental laws of the land. In Strafford's case, John Pym represented as treason the attempting to subvert the fundamental laws of the land ; for since those laws determined at once the prerogative of the king and the liberty of the subject, an attempt to subvert them involved stripping the king of his legal right to his prerogative; and as the prerogative was designed for the king's protection, such subversion amounted to compassing his death. Said Pym in summing up against the Earl of Strafford:

There is in this Crime a Seminary of all Evils hurtful to a State; and if you consider the Reasons of it, it must needs be so: the Law is that which puts a difference betwixt Good and Evil, betwixt Just and Unjust; if you take away the Law, all things will fall into Confusion, every Man will become a Law to himself, which in the depraved condition of Human Nature, must needs produce many great Enormities; Lust will become a Law, and Envy will become a Law, Covetousness and Ambition will become Laws; and what Dictates, what decisions such Laws will produce, may easily be discerned in the late Government of Ireland .... It is the . Law that doth entitle the King to the Allegiance and Service of his People; it entitles the People to the Protection and Justice of the King. It is God alone who subsists by himself, all other things subsist in a mutuall Dependence, and Relation.*

It was easier for Pym to assert the existence of these laws than to say where they were to be found. Certainly, Magna Charta, confirmed above thirty-

9 Rushworth, VIII, 662.

three times by various kings of England and explained in the Petition of Right, contained some of them; other basic statutes did so too; but the application of the term, fundamental law, to the text of a statute or the text of several statutes was scarcely warranted by English traditional usage. As Professor Mcllwain says: "If a constituent law ever existed in England it must be looked for mainly in the attitude of men toward the law, or, better, in the rules applied by judges in cases arising under the law. The fundamental law there may be contained in a document, or documents, as in the case of Magna Charta, but the validity of that law is not due to the form of the document or documents but rather to the character of the principles."^" In seventeenth-century England "fundamental law" denoted a series of principles deducible from the common or statute law, or perhaps naturally inherent in the minds of all men.

Such principles of fundamental law would be of little avail unless given practical application by some body or person empowered to interpret them authoritatively and finally. The Long Parliament by virtue of being the king's highest court asserted its right to the office of interpreter. Its claim should teach us that the word "Parliament" means one thing to writers of the seventeenth century and another to writers of the twentieth.

1" C. H. Mcllwain, The High Court of Parliament and its Supremacy, p. 61.

Parliament is today the supreme legislature of the British Empire, but in the political thought of the seventeenth and of earlier centuries, Parliament was less and more than a legislature. Less, because many thinkers would have asciibed the power of legislation, the power of making new laws, to the king ; although it was a power that he could exercise only in Parliament. ^^ More, because Parliament, though its transcendent function was that of legislation as we understand the term today, was also the king's greatest council and the king's highest court. As the latter it had the duty of interpretation that of necessity belongs to any court — the duty of stating and interpreting a rule of law before applying it in the decision of a specific case. True, it is not easy to find the Long Parliament at work which we should today regard as judicial. But its contemporaries spoke of it as a court; and probably they considered such of its enactments as were declaratory of the older law as being decisions of a court rather than acts of a legislature.^^

The august character of Parliament in its three functions of council, court, and legislature was traced to the fact that it represented the whole kingdom, and was the symbol of the perfect ac-

11 St. John had taken this position in his argument of 1637 on ship money. Supra, p. 10. It is also expressed in The Priviledges And Practice of Parliaments In England. Collected out of the Common Lawes of this Land, 1640, E. 161 (1), p. 43. This view would hardly have gone unchallenged by 1642.

12 See Note I on p. 43.

cord of king and people. ^^ The wits of parliamentary orators and writers were exhausted in the search for quaint conceits to illustrate this relation: Parliaments were beds of reconciliation; as in the natural body the head and the members were one, so in the Parliament the kingdom and the king were knit into one body politic, and had but one will and one purpose.^*

Having such exalted notions of the dignity of parliaments, the Long Parliament was sharp in its prosecution of those who in the era of personal government had infringed on parliamentary functions. This was true notably in the cases of Strafford and Laud, the men who in their practice had most notoriously departed from the rule of law to follow after the rule of government. Parliament found like offenders in the judges and in the clergy in convocation. The judges, it held, had abused to the advantage of the prerogative their function of declaring the law of the land, when

^^ The emphasis on the value of the mutual consent of king and people to laws as securing their justness is marked. "Now the great Buttresse or Foundation upon which the Lawes of England stand (if I be not mistaken) is upon the free consent of the King and subject in the composing and framing of them . . . And doth also prevent them [the people] most of all excuses or quarrells against the lawes, for since it doth in a sort make them all (for the considerable part in policy) as well parties and agents in the making of the yoke, as passive in the bearing of it, we are so much the more deprived of all plea and exception against it, imtill it bee taken off, or abrogated by the like power and upon the same termes." Thomas Warmstry, Pax Vobis, Dec. 1641, E. 180 (24), pp. 24-28 passim.

" Sir Benjamin Rudyard, Apr. 18, 1640, Parliamentary History, II, 545.

in the case of ship money they had reversed a previous decision handed down by the High Court of Parliament in the Petition of Right. Convocation had abused its power of declaring the law in matters of religion, when it had prescribed an oath to laymen, and had assumed to define the king's right to tax his subjects. Both judges and clergy, therefore, stood convicted of having trespassed on the duties of the highest court of the land, the High Court of Parliament. ^^

The constitutional doctrine that Parliament was the final interpreter of the fundamental laws of the land contained, as has been indicated, the germ of the doctrine of parliamentary sovereignty ; and the development of this latter doctrine divided the old constitutional party of the Long Parliament into the two parties that fought the civil war. The development of the doctrine and the divergence of the parties are devious and difficult to trace. Its first official appearance perhaps is the Grand Remonstrance passed November 22, 1 64 1. This is the first public utterance by the narrower party forming around Pym and Hampden that ignores the organic concept of Parliament — the concept that regarded the Parliament as the symbol of the unity of king and people. In ordering the Grand Remonstrance printed, the House of Commons bid against the king for the support of the nation. Clear-headed Royalists saw what it meant and stormed for the right

"See Note I on p. 43.

of recording their protests against the measure. "When," said Sir Edward Dering, "I first heard of a Remonstrance, I presently imagined that like faithful Counsellors, we should hold up a Glass unto his Majesty: I thought to represent unto the King the wicked Counsels of pernicious Counsellors .... I did not dream that we should remonstrate downward, tell stories to the people, and talk of the King as of a third person. "^^ From this date the House of Commons began to emphasize its own importance in the state. Partly as a result of the attempt on the five members, statements of its privileges came to have a larger place in its utterances. Occasionally, as from Grimston's Guildhall speech^^ one gains the impression that the iniquity of the breach of privilege lay not so much in molesting the chosen servants of the nation, as in interfering with the privileges of a corporate body — privileges perhaps not wholly ancillary to the good of the kingdom outside St. Stephen's Chapel. Furthermore, the Lower House ventured to assume to itself the new-found augustness of the Parliament. The utterances of the House of Commons began to imply that in case of necessity it might lawfully act without the Lords. In a conference with the Lords, January 25, Pym insinuated that if the obstinacy of the Upper House prevented the Com-

i^Nalson, An Impartial Collection, II, 668 (cited hereafter as Nalson). Bering's speech was on the first proposal to print, November 22. The printing was not carried till December 15.

mons from saving the kingdom with the Lords' concurrence, the Commons would save the kingdom without it.^^

The Grand Remonstrance was the beginning of a paper war between the king and the Parliament that lasted well after the first shock of arms. At the very beginning, Parliament made long strides toward claiming supreme power. On the Militia Bill, by which for their own safety the Houses sought to get control of the militia organization of the kingdom. Parliament finally broke with the older policy, and the older theory of balanced power. March 15, the Houses declared that the Militia Ordinance was binding on the people, and that by the fundamental laws of the land it ought to be obeyed. In a resolution of March 16, they based their action on their right as supreme judicature of the kingdom to declare the law of the land. Briefly stated, their implied argument was that the law of the land in a time of great and evident danger was the law of solus populi; and that the Parliament as supreme judge of the laws of the land was judge also of the existence of such a law and of the necessity of invoking it.^^