SOURCE: "Gerrard Winstanley on Crime and Punishment," The Sixteenth Century Journal, Vol. XXVII, No. 3, Fall, 1996, pp. 735-47.

[In the following essay, Rogers analyzes the emphasis of The Law of Freedom in a Platform (1652) on crime, law, and punishment. Rogers comments specifically on the apparent shift in Winstanley's thought from a belief in individual moral responsibility to a focus on the state's role in governing morality.]

Scholars have long recognized the importance of legal themes in Gerrard Winstanley's last writing, The Law of Freedom in a Platform (1652). This detailed work devotes its final chapter not only to a general discussion of law but also to the specific criminal code appropriate to a communist commonwealth. Here the reader finds a lengthy list of crimes paired with punishments ranging from private rebukes to public execution. In addition, scattered throughout chapter 4, Winstanley takes up the elections, qualifications, and duties of judges and law enforcement officials. It is fair to say that crime and punishment constitute one of the crucial themes in Law of Freedom. Yet Winstanley's pre-1652 writings reveal a man far less interested in law and crime; in the pamphlets produced during the year of "digging" between 1649 and 1650 Winstanley focused his attention on other issues.

Oddly, the changes in Winstanley's legal thought have not received thorough historical analysis. Instead, much commentary on his views on crime and punishment, influenced by political science debate, has centered around an anachronistic attempt to determine whether or not the Digger leader was a seventeenth-century "socialist totalitarian." As early as 1957 the political scientist Walter F. Murphy emphasized the coercive side of Law of Freedom's utopian society, with its plethora of enforcement officials and laws designed to correct "standard human frailties." He concluded that it would be "hard to imagine a better example of a primitive police state than the True Commonwealth."¹ In the late 1970s and early 1980s, the historian J. C. Davis further developed this approach to Winstanley's legal thought. Professor Davis posited a radical disjuncture between the "early" and "later" Winstanley. In the works of 1649 and 1650, Winstanley believed in a society made ideal by the moral perfecting of individuals, which meant that government's role remained limited to keeping order.² Yet by the time he composed Law of Freedom, Professor Davis lamented, the Digger writer had abandoned this for a completely different social model, which Davis characterized as "a utopian reliance on a dynamic secular state and its agencies.…"³ For Davis, the crucial change in Winstanley's thought came with his acceptance of original sin by 1652. By then Winstanley realized that original sin was imbedded in human beings and led inevitably to self-interest; hence, "the scope of law had to be totalitarian," and had to regulate every aspect of life because the state remained locked in eternal combat with human nature. Therefore, in Law of Freedom Winstanley elaborated a complex legal system, with harsh corporal punishments to enforce its penal code.⁴ Davis insisted that in practice this not only would have led to "judicial slavery," flogging, "judicial violence and torture," and capital punishment, but also to a "Big Brother" state in which common human shortcomings such as gossip, hypocrisy, and idleness would have been punished as civil offenses. Further, Davis noted that whereas Winstanley's earlier works denied the necessity of lawyers, Law of Freedom embraced the notion of "every man his own lawyer"; for Davis, Winstanley's utopia would swarm with contentious citizen-attorneys. Thus, by 1652 law was integral to the total system of indoctrination and social discipline that Winstanley now recognized as necessary to shape and mold people to the needs of the state.⁵ Even in his controversial 1986 work on the Ranters, Davis continued to insist that Christopher Hill and others sympathetic to the Diggers' aims ought to admit that Winstanley "became more repressive than the formulations of The World Turned Upside Down allowed."⁶

Other historians have followed this line of thought. In 1988, Austin Woolrych seconded Davis' judgment of Hill, pointing to the "severely authoritarian regulations and penalties proposed in The Law of Freedom…." A year earlier, Robert Zaller complained that although Winstanley's earlier works, alone among the writings of legal reformers during the Revolution, absolutely rejected the death penalty, Law of Freedom prescribed it for a host of offenses. This fact, plus Winstanley's general embrace of eye-for-an-eye punishments in his last work, prompted Zaller to lament that the Digger leader's earlier "dream of a spontaneous brotherhood was replaced by the arid formulas of a utopia," and that Winstanley "seemed to fall back on a scarcely convincing conflation of the Mosaic code and the Sermon on the Mount.…"⁷

Timothy Kenyon's Utopian Communism and Political Thought in Early Modern England (1989) is to date the best of the studies inspired by political science debate and takes issue with Davis' analysis. Kenyon underscored Winstanley's consistent optimism about people's restoration to spiritual wholeness. More important is Kenyon's analysis of the means by which that spiritual restoration was to take place, for he insisted that Winstanley focused on the crucial role of social institutions in molding individuals freed from the spiritual destructiveness of the Fall. Although Winstanley viewed several social institutions (the household, education, apprenticeship, etc.) as vital, Kenyon argued that a comprehensive legal system "constitutes the minimum and rudimentary provision in Winstanley's scheme for the restoration of Man."⁸ This code would in general serve as a guide to action for all members of Winstanley's utopia. Thus, for Kenyon, Law of Freedom's legal system constituted merely one (albeit a crucial one) among many institutional parameters vital to the lifelong process of spiritual restoration of individuals. Winstanley, Kenyon concluded, clearly recognized the usefulness of legal restraints, since only slowly and fitfully would people progress toward an understanding of cooperation; coercive law had to be ready to respond to the inevitable lapses in rational behavior.⁹

Among all the scholars of Winstanley's thought on criminal justice, Christopher Hill has come closest to placing those ideas solidly within the mid-seventeenth-century context. In 1978 he published a major assessment of Winstanley's thought, which, among other things, directly challenged Murphy's and Davis' views. Professor Hill first rejected the idea of a dramatically different "early" as opposed to "later" Winstanley, maintaining that Winstanley consistently supported punishing unrighteous behavior in civil matters.¹⁰

More importantly, Hill analyzed Law of Freedom within the matrix of real political events of the late 1640s and early 1650s. To begin, Hill reminded readers that in Winstanley's early works, written during the optimism felt by many radicals at the dawn of the Commonwealth, he expected a swift and peaceful transition to communist society, as "Reason" or "Christ" rose within all people and they came to realize that common cultivation was the solution to England's problems. But the disappointments and ultimate defeat of the Diggers by 1650 taught Winstanley important lessons reflected in Law of Freedom, most notably that communist society would be a long time in coming. Thus, in the meantime, in the transitional period between "kingly government" (regimes that support private property) and that glorious future (that is, in the period dealt with by Law of Freedom), people would need the guidance of law. Only state authority could curb the power of the "Norman" and "antichristian" gentry and clergy and thereby disentangle people's minds from the mystification wrought by "Kingly power." Hill thus insisted that Winstanley came to understand the need to institutionalize Reason by means of an elaborate law code.¹¹

Hill also found unrealistic Davis' interpretation of Winstanley's state as a totalitarian one, constantly at war with "human nature" due to original sin. Such a view, he argued, ignores Winstanley's expectation that Christ would indeed rise in every person, even if it would take longer than he initially expected. In addition, Hill asked whether, given the cruelty and disease endemic to seventeenth-century prisons, there existed any practical alternative to corporal punishment and forced labor? He pointed to the fact that whipping and burning in the hand were considered minor by contemporaries such as John Bunyan.¹²

Students of Winstanley's legal thought find themselves tempted to put this debate at the center of their analyses. Yet, despite Professor Hill's laudable sabotage of the anachronistic "socialist totalitarian" model, such a temptation should be resisted, for there remain two things that scholars must do before a full portrait of Winstanley's legal mind can emerge. First, we must extensively analyze both the theoretical and practical aspects of criminal justice not only in Law of Freedom but also in Winstanley's earlier writings; this provides a clearer picture of the evolution of his ideas. Second, and more importantly, we need to interpret Winstanley's opinions on crime and punishment within the heady world of radical (and even moderate) legal reform schemes that erupted during the Interregnum.¹³ As we shall see, Winstanley's theoretical-historical perspective on law remained unique. Nevertheless, like many Leveller writers before and Quaker and Fifth Monarchist authors after him, he advocated decentralization of the court system, popular legal education, self-representation, and other measures that would have democratized the legal system.¹⁴ Any thorough historical study of Winstanley's legal thought must operate within that context.

The Writings of 1649 and 1650: Theoretical Dimensions

Winstanley's pre-1652 writings on legal matters focused on the evils of private property ownership and the unjust law enforcement system that supported it. This does not mean that he failed to discuss criminal activity and punishments; however, his views on religion and history made him optimistic that, as individuals rejected private property, the root causes of crime largely would melt away. We must therefore examine briefly the theoretical context of his thought on law and crime.

Unlike the Levellers, whose analysis of the history of law rarely extended back further than Anglo-Saxon times,¹⁵ Winstanley examined the origins of law both before and after the Fall of Adam. Prior to the Fall, all laws were rooted in "common preservation," which meant that individuals sought the good of others without respect of persons. Winstanley adapted traditional natural law doctrine to his own ends when he declared that "the Law of Necessity, that the Earth should be planted for the common preservation and peace of his household, was the righteous Rule and Law to Adam," whose people also had that law inscribed in their hearts.¹⁶ Thus, before the Fall, God made the earth a common treasury, a communist paradise without social or property-based distinctions;¹⁷ law was based on each person's innate respect and concern for others.

With Adam's transgression, however, human society changed and along with it law. As covetousness arose in the hearts of some, "one branch of mankind began to lift up himself above another," stealing the use of the earth and killing. So, "thieves and murderers, upheld by preaching witches and deceivers," came to govern and to establish laws which upheld their conquest and oppression. Gradually, therefore, the common people were subjugated by enslaving laws handed down from one generation of conquerors to another in order to justify murder and theft.¹⁸

Naturally enough, Winstanley used the Norman Yoke myth to fit England into this pattern of world history. "And the last enslaving Conquest which the Enemy got over Israel, was the Norman over England," he duly noted, which introduced not only kings, lords, and freeholders, but also judges, justices, bailiffs, and the "binding and restraining laws" which have subjugated the English ever since.¹⁹ Winstanley thus believed that all laws since 1066 buttressed the Norman enslavement of the English to this "Kingly power." "This Kingly power is covetousness in his branches," Winstanley wrote early in 1650, "or the power of self-love, ruling in one or in many men over others, and enslaving those who in the Creation are their equals." Whether it assumed the form of royal prerogative or "state Priviledge of Parliament," Winstanley argued that "Kingly power" had always denied the soil to one part of the human race. Every monarch since the Conqueror had confirmed the old "Norman" laws, and even the best of them (for example, the Magna Carta) bound the people to their masters, for the clergy and gentry are free, Winstanley complained, while the people must work for them just as the Israelites labored for the Egyptians.²⁰

So, when Winstanley turned to an analysis of English positive law, he worked within the world-historical context of "Kingly power's" use of the legal system to secure the privileges of private property. Winstanley and the Diggers saw property as a fundamental evil, "the cause of all wars, bloud-shed, theft, and enslaving Laws, that hold the people under miserie." If out of want the poor should steal, the hypocrisy of English law was revealed in all its nakedness; the rich thieves, the bribe-taking lawyers, and court officers cheated people of their property with impunity while the poor faced the gallows. Thus, Winstanley believed that the "particular propriety of mine and thine" was the root cause of both crime and unjust punishments. "It tempts people to doe an evil action," Winstanley wrote early in 1649, "and then kils them for doing of it: Let all judge if this be not a great devil."²¹

Winstanley's second major point about positive law was that the execution of Charles I, the last of the "Norman" kings, did not automatically sweep away "Kingly Law and Power." Nonetheless, in 1650 Winstanley took heart in the acts abolishing the House of Lords and establishing a commonwealth, for he saw them as freeing the people from obedience to laws that originated in "Kingly power," including laws enforcing tenurial relations.²² In his optimism about the spread of Reason, Winstanley warned that the Diggers sought no mere return to pre-Norman laws; unlike the Levellers, he advocated a far more radical restitution, the "pure Law of righteousness before the Fall … unto which all things are to be restored."²³ He was sure that soon the "law of common preservation" would reign in all people's hearts, thus returning England to that law of righteousness.

Crime and Punishment

So, to Winstanley private property was the single most important cause of criminal behavior. Moreover, in his early pamphlets he remained hopeful that as communism gradually took hold, that is, as Christ or Reason rose within individual men and women, crime and punishment would virtually disappear. Nonetheless, he did make a few statements about criminal activity and its suppression.

To begin, even at the height of his optimism about the inner transformation of individuals, Winstanley did not envision a world completely without coercion or magistrates. In Truth Lifting up its Head Above Scandals (1649), he embraced the rather traditional Christian view of the magistrate as "a terror to all unrighteousness" in anyone who might "walk unrighteously towards his fellow creature in civil matters." It is clear that Winstanley expected some crime, although he primarily believed that it would assume the form of attempts to reestablish property ownership. Perhaps as a result, in the writings of 1649 and 1650, he fiercely rejected prisons as well as corporal and capital punishment; all three were outgrowths of the "sharp Laws of Bondage" imposed by the Normans. The only punishment he deemed appropriate was to work on the land, marked as a servant of the state by the special clothing which, he believed, was the mark of fools in ancient Israel. This would continue until such time as the spirit within made the offender aware of the error of attempting to rise above others by reintroducing private property.²⁴

The Law of Freedom In a Platform: Theory of Law

Law of Freedom retained the theory of history Winstanley had developed in the pre-1652 writings. Moreover, as he did in those pamphlets from 1649 and 1650, Winstanley sought to ground his communist legal system in the "Spirit of universal Righteousness dwelling in Mankinde, now rising up to teach every one to do to another as he would have another do to him." Continuing to define fundamental law in a revolutionary way, Winstanley warned all officials, including members of Parliament, of their obligation to ensure that the people enjoy their "creation-Freedoms in the Earth" (that is, their right to communist ownership of the land), "for the Necessity of common preservation and peace is the Fundamental Law both to Officers and the People."²⁵ In short, Winstanley still believed law had to be based on a spirit of righteousness within, a spirit which taught people the importance of economic cooperation and the Golden Rule.

If Winstanley still sought a spiritual justification for his legal system, he conceptualized the actual operation of the law much more concretely than he did in his earlier writings. Broadly speaking, he viewed law as creating the institutional parameters within which his definition of the Golden Rule could flourish, for by 1652 he had concluded that "Reason" was only very slowly rising within the hearts of his countrymen. Therefore, one purpose of the law was to establish a communist economy by forbidding commercial transactions and by setting up communal cultivation and distribution. These economic changes Winstanley termed "commonwealths government" and "commonwealths freedom"; their establishment "fulfills the righteous law of Christ, Do as you would be done by: for that law of Christ can never be performed, till you establish Commonwealths freedom."²⁶ Private property constituted the main institutional obstacle to the Golden Rule, and its removal had to take priority over any other matter.

The other function of law according to Law of Freedom was the restraint and correction of people's behavior, something far less emphasized in the earlier pamphlets. Winstanley believed that law was needed not only because of "unreasonable ignorance" (that is, the desire for private property) but because of "ignorant and rude fancy in man," such as the notion that community of property implies community of women, obviously a rebuke to Ranters. What Winstanley had realized by 1652 was that although the tyranny of "Kingly" governments provoked a desire for a commonwealth, still, as he put it, "the spirit in Mankinde is various within it self." Thus, some people were still idle, foolish, rash, and covetous. This variety indicated to him that the spirit of Christ had not yet entered into the hearts of enough people and that the law itself would have to function both as a communist standard of action and as a preserver of peace.²⁷

If the laws were to function efficiently in Winstanley's ideal commonwealth, two things became absolutely essential. One was effective law enforcement; consequently, he proposed a vast array of elected state officials and overseers to implement his new legal code. "And the Reason of all this," he noted, "is that many eyes being watchfull, the Laws may be obeyed, for to preserve Peace."²⁸ Second, like the Quakers and Fifth Monarchy Men who wrote about the law after him, Winstanley insisted that the people must know the law. "If there were good Laws," he wrote, "and the People be ignorant of them, it would be as bad for the Commonwealth as if there were no Laws at all." Noting how Moses had ordered the law to be read once a week to the people, he proposed a form of popular legal education; the elected minister of each parish would read the law publicly four times per year, "for the Laws of a Land hath the power of freedom and bondage, life and death in its hand … and he is the best prophet that acquaints men therewith."²⁹

Crime and Punishment

Because Winstanley intended to use the law to bring human behavior in line with "commonwealths freedom," Law of Freedom prescribed an assortment of punishments, ranging from private and public rebukes to the death penalty, for a host of offenses. A detailed examination of Winstanley's proposed punishments reveals not only the shifts in his views on the nature of communist society but also the extent to which his earlier opinions on crime had changed by 1652.

Winstanley never overcame the dislike of prisons so prominently featured in his earlier writings. He specifically noted in Law of Freedom that there should be no imprisonment in noncapital cases, even for holding the accused before trial. The cruelty of prisons was one justification for this, although Winstanley also concerned himself with another vital issue: remorse. He hoped that if the offender lived at home while awaiting trial he would come to see his errors. With his neighbors close by to see his changed ways, the judge could justify mitigation of the sentence, "for it is amendment not destruction that Common-wealths Law requires."³⁰

If Winstanley maintained his earlier distaste for prisons, his opinions on the death penalty changed dramatically, for the list of capital crimes in Law of Freedom is actually fairly long. The first broad category concerns attempted escape while in state custody. Winstanley believed that an offender who fled after promising to appear before a court should be executed immediately after capture. He also advocated the death penalty for escape while serving a sentence of deprivation of freedom under the supervision of a state taskmaster, that is, bondage to the state.³¹ Another type of capital offense was engaging in commercial transactions of various kinds. Winstanley particularly opposed the commodification of legal services, and he noted that anyone who attempted to administer the law for gain should die as a traitor to the commonwealth; like a few moderate legal reformers and many radicals, he staunchly stood for self-representation.³² He also believed that persons who tried to buy or sell land or its fruits should be put to death as "traytors to the peace of the Common-wealth because it brings in Kingly bondage again and is the occasion of all quarrels and oppressions." Likewise, those who sought, through conspiracy or force, to re-introduce private property would suffer the death penalty. Treason (armed insurrection) and rape were the final capital offenses in his ideal legal code.³³

Like many radical and other legal thinkers of the 1640s and 1650s, Winstanley prescribed a host of corporal punishments for less serious crimes.³⁴ For Winstanley, the most fundamental principle was eye-for-an-eye justice administered by the state executioner; "and the reason is, that men may be tender of one anothers bodies, doing as they would be done by."³⁵ This perfectly illustrates how Winstanley sought to use the law to bring forth adherence to a principle (his view of the Golden Rule) that in his earlier works he had hoped would take hold "naturally" as the spirit of Reason spread through all people. Another form of corporal punishment Winstanley advocated was branding, the use of which the Leveller Richard Overton had urged in 1647. The person who stubbornly continued to claim ownership of land would be placed "upon a stool, with those words [that is, concerning ownership] written in his forehead, before all the Congregation."³⁶

Whipping was yet another physical punishment, sometimes prescribed for the second and third offenses of freemen who habitually lied, intimidated, and berated their neighbors,³⁷ although Winstanley most often advocated it for individuals already under some form of bondage to the state. Those who disobeyed the taskmasters or spoke against the law would be subject to short rations, a coarse diet, and whipping, "for a rod is prepared for the fools back, till such time as their proud hearts do bend to the Law."³⁸ Scholars such as Colin Davis, who find Winstanley's criminal code uniquely objectionable because of its sanction of "judicial violence and torture," would do well to recall attitudes toward corporal punishment evinced by the Hale Commission of 1652. Dominated by lawyers and recognized as the quintessential voice of moderate law reform during the Interregnum, this body recommended that perjurers have their ears cut off, their nostrils slit, and their hands burned with red hot irons; afterward, they would be sent to a house of correction.³⁹

Crucial to Winstanley's ideas about proper punishment in his ideal society was bondage to the state, something advocated by many radical and moderate reformers, ranging from Hugh Peters to the Fifth Monarchy Men.⁴⁰ Winstanley usually prescribed it for a one-year period. Sometimes he held that it should be used straightaway in first convictions for a particular crime, such as striking a government officer, enticing a person to buy or sell, hiring labor, offering to work for wages, or persistently denying that all property should be held in common.⁴¹ More commonly Winstanley advocated labor service as a last resort, after private and public reproaches had failed. Idlers would draw a private warning by the overseers for the first offense, a public rebuke for the second, and twelve months' labor service under a taskmaster for the third. The same sequence of punishments would apply to the head of a family who neglected to maintain the tools necessary for agricultural production.⁴²

Winstanley also recommended labor service for official negligence of duty, specifically for two agents of the state, waiters (workers in the storehouses and small shops), and overseers. After one private warning, a waiter found negligent would be taken before a judge and sentenced to work in the fields under a taskmaster, "for he who may live in freedom and will not, is to taste servitude." Overseers too would be subject to a private warning by a judge for allowing idleness among the working population; a second offense would result in his expulsion from office and his falling back into the ranks of "young people and servants to be a worker."⁴³

Labor service also appeared among Winstanley's proposals to deal with problems arising from interpersonal relationships but again only after. private and public warnings for first and second offenses. Liars and promoters of dissension among their neighbors would receive a three-month sentence for their third conviction and a permanent loss of freedom for a fourth. If a witness could prove the charge, a person found guilty of verbal intimidation a fourth time would serve for twelve months, as would anyone convicted of lordly domination of others. Wife stealing was another crime that Winstanley believed deserved a twelve-month sentence of forced labor, at least for the second conviction.⁴⁴

Winstanley laid out the manner in which these "laboring servants" to the Commonwealth were to be supervised. Offenders would be under the watch of a taskmaster, who would use his own judgment in assigning appropriate work. White woolen garments were to be the special "badge" of these people as they worked on public projects or as laboring assistants to the freemen. Winstanley also provided that, at the termination of their sentences, the offenders be restored to their freedom only if they "give open testimony of their humility and diligence, and their care to observe the Laws of the Commonwealth.…"⁴⁵

Even among the radical reformers of the 1640s and 1650s Gerrard Winstanley was a unique legal theorist because his call for a restoration of prelapsarian law grew out of an extraordinary perspective on world and English history. Moreover, although virtually all radicals employed some form of natural law theory to justify their reform proposals,⁴⁶ only Winstanley's interpretation of the "Law of God" sanctioned—indeed commanded—a criminal code supportive of a communist society. Law reform and economic change had to advance hand in hand.

Winstanley's thought on crime and punishment, especially in Law of Freedom, is also marked by realism. Given the Diggers' experiences with a coercive state in defense of private property, Winstanley realistically insisted that his communist society required a new criminal code in order to combat the selfishness that accompanied capitalist property relations.⁴⁷ As an early materialist, Winstanley correctly realized that true freedom, the rising of the spirit of Christ, of Reason, could not take place without institutionalizing cooperation by means of the law. Timothy Kenyon's insistence on Winstanley's many-faceted institutional approach to spiritual restoration properly underscores the importance of such a code.⁴⁸

Finally, and most importantly, we must recognize that despite these distinctive features of Winstanley's legal thought, he was very much part of the vibrant law reform tradition that poured forth in the 1640s and 1650s. As I have indicated earlier, he shared many democratizing legal ideas and proposals with the Levellers, Quakers, and Fifth Monarchy Men, not to mention moderate reformers. Among these numbered popular legal education, the right of self-representation, decentralization of the courts,⁴⁹ and election of judges and other legal officials. His commitment to a democratically controlled legal system extended even further, for he also endorsed popular approval of reformed laws⁵⁰ and the informal adjudication of disputes; moreover, he intended punishments to be corrective, not punitive.⁵¹

I think it should at last be clear that Winstanley did not make the radical aboutface from a "spiritual" individualist to a "totalitarian" collectivist that Colin Davis and others have suggested. Rather, Winstanley's thought on crime and punishment reflects both the popular, radical tradition of law reform in the revolutionary era and realistic lessons in common cultivation and state power learned in the Digger colonies. All in all, it was a unique and humane legal vision.

Notes

¹ Walter F. Murphy, "The Political Philosophy of Gerrard Winstanley," Review of Politics 19 (1957): 257.

² J.C. Davis, "Gerrard Winstanley and the Restoration of True Magistracy," Past and Present, 70 (1976): 86, 91; J.C. Davis, Utopia and the Ideal Society: A Study of English Utopian Writing, 1516-1701 (Cambridge: Cambridge UP, 1981), 192.

³ Davis, "Winstanley and True Magistracy," 92.

⁴ Davis, "Winstanley and True Magistracy," 84-85, 86; Davis, Utopia and the Ideal Society, 190-191, 193, 199.

⁵ Davis, "Winstanley and True Magistracy," 89-90, 92-93.

⁶ J.C. Davis, Fear, Myth, and History: The Ranters and Their History (Cambridge: Cambridge UP, 1986), 133 n.

⁷ Austin Woolrych, "Revising Stuart Britain: Towards a New Synthesis?" Historical Journal 31 (1988): 450; Robert Zaller, "The Debate on Capital Punishment during the English Revolution," American Journal of Legal History 31 (1987): 141-142.

⁸ Timothy Kenyon, Utopian Communism and Political Thought in Early Modern England (London: Pinter, 1989), 203-205, 205 n.

⁹ Kenyon, Utopian Communism, 209-210, 217.

¹⁰ Christopher Hill, The Religion of Gerrard Winstanley, Past and Present Supplement, 5 (Oxford: Past and Present Society, 1978), 38.

¹¹ Hill, Religion of Winstanley, 24, 41-45, 49; Christopher Hill, "Gerrard Winstanley and Freedom," in A Nation of Change and Novelty: Radical Politics, Religion and Literature in Seventeenth-Century England (London: Routledge, 1990), 124-125; originally published in Freedom and the English Revolution, ed. R.C. Richardson and G.M. Ridden (Manchester: Manchester UP, 1986).

¹² Hill, Religion of Winstanley, 41-42.

¹³ For the overall law reform context, see Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford: Clarendon, 1970); Nancy Matthews, William Sheppard: Cromwell's Law Reformer (Cambridge: Cambridge UP, 1985); and Stuart Prall, The Agitation for Law Reform during the Puritan Revolution (The Hague: Nijhoff, 1966). For radical law reform in particular, see Michael Rogers, "Law Reform and Legal Thought among English Radicals, 1645-1660" (Ph.D. diss., Northern Illinois U, 1988).

¹⁴ Popular legal education and self-representation in radical thought is discussed below. For Leveller and Fifth Monarchist proposals to decentralize the court system, see Rogers, "Law Reform and Legal Thought," 138-151, 203-205, 448-450, 464-465. For Quaker ideas on decentralization, see Michael Rogers, "Quakerism and the Law in Revolutionary England," Canadian Journal of History 22 (1987): 167.

¹⁵ Pauline Gregg, Free-born John: A Biography of John Lilburne (London: George Harrap, 1961), 208; Christopher Hill, "The Norman Yoke," in Puritanism and Revolution (New York: Schocken, 1964), 78; Robert B. Seaberg, "The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity," Historical Journal 24 (1981): 800-801; David Wooten, "Leveller Democracy and the Puritan Revolution," in The Cambridge History of Political Thought, 1450-1700, ed. J. H. Bums (Cambridge: Cambridge UP, 1991), 427-428.

¹⁶ Gerrard Winstanley, The Law of Freedom in a Platform (London, 1652), rptd. in The Works of Gerrard Winstanley, ed. George H. Sabine (Ithaca: Cornell UP, 1941; reprint, New York: Russell & Russell, 1965), 536-537. (All subsequent citations of Winstanley's writings are to Sabine's edition, hereafter cited as Works.) Although best expressed in Law of Freedom, this view was also common in the pre-1652 pamphlets.

¹⁷ Gerrard Winstanley, A Watch-Word to the City of London and the Armie (London, 1649), rptd. in Works, 323.

¹⁸ Gerrard Winstanley, The True Levellers Standard Advanced (London, 1649), rptd. in Works, 254-255; Winstanley, Watch-Word, 323-324.

¹⁹ Winstanley, True Levellers, 259.

²⁰ Gerrard Winstanley, A New-yeers Gift for the Parliament and Armie (London, 1650), rptd. in Works, 354-355; idem, A Letter to the Lord Fairfax and his councell of war (London, 1649), rptd. in Works, 286-287; idem, An Appeal to the House of Commons (London, 1649), rptd. in Works, 303.

²¹ Gerrard Winstanley, A Declaration from the Poor Oppressed People of England (London, 1649), rptd. in Works, 276; idem, New-yeers Gift, 388; idem, The New Law of Righteousness (London, 1649), rptd. in Works, 201.

²² Gerrard Winstanley, An Appeale to all Englishmen (London, 1650), rptd. in Works, 410-411, 413.

²³ Winstanley, Letter to Fairfax, 292; idem, New Law of Righteousness, 191, 205, 225.

²⁴ Gerrard Winstanley, Truth lifting up its head above scandals (London, 1649), rptd. in Works, 130; idem, New-Yeers Gift, 355-356; idem, New Law of Righteousness, 197-198.

²⁵ Winstanley, Law of Freedom, 534, 561.

²⁶ Winstanley, Law of Freedom, 585.

²⁷ Winstanley, Law of Freedom, 515, 526, 535-536.

²⁸ Winstanley, Law of Freedom, 552. For Winstanley's franchise and the annual election of state officers, including judges, see idem, Law of Freedom, 538-539, 540, 548, 555-556.

²⁹ Winstanley, Law of Freedom, 562-563, 591. Winstanley believed it important that no person suffer death at the hands of the state on account of ignorance of the law. For Quaker proposals to educate people about the law see the following: George Fox, To the Parliament … Fifty-nine Particulars (London: Thomas Simmons, 1659), 4; P[aul] M[oon], Some Passages and Proceedings in Court (1657), in George Fox, An Instruction to Judges and Lawyers (London: Thomas Simmons, 1657), 37; Edward Burrough, A Declaration to all the World of our Faith (London, 1658), rptd. in his The Memorable Works of a Son of Thunder and Consolation, ed. Ellis Hookes (London, 1672), 442; and George Fox, Instruction to Judges and Lawyers, 8. For a similar proposal by an author very popular among Fifth Monarchists, see John Brayne, The Authority of God Over Men in the Law (London: Richard Moon, 1654), 5, 9. Both Fox and Brayne followed Winstanley in harkening back to the practices of Moses's day.

³⁰ Winstanley, Law of Freedom, 553.

³¹ Winstanley, Law of Freedom, 553-554.

³² Winstanley, Law of Freedom, 554, 591. Actually, Winstanley had argued for self-representation well before 1652; see, for example, his 1649 tract Appeal to the House of Commons, 311. On the moderate reformers Hugh Peters and William Sprigge, see Veall, Popular Movement for Law Reform, 119, 121. For Leveller opinion on self-representation see John Lilburne, The Just Mans Justification (London, 1646), 11, and An Agreement of the Free People of England (London, 1649), rptd. in Leveller Manifestoes of the Puritan Revolution, ed. Don M. Wolfe (New York: Nelson, 1944; reprint, New York: Humanities Press, 1967), 406. For the Quakers, see Fox, Fifty-Nine Particulars, 4; Fox, Instruction to Judges and Lawyers, 19; and George Fox, The law of God the rule of law-makers (London: Giles Calvert, 1658), 5 [misprint for 3]. For the Fifth Monarchists, see John Brayne, The New Earth (London: Richard Moon, 1653), 7, "Epistle Dedicatory," 2d page; William Medley, A Standard Set Up (London, 1657), 18, and Bernard Capp, The Fifth Monarchy Men (London: Faber and Faber, 1972), 159.

³³ Winstanley, Law of Freedom, 594-595, 597, 599.

³⁴ The radicals' views often echoed the widespread belief of the ruling classes in stiff corporal punishments for the lower classes, although most wanted to ensure that criminals of every social standing answered for their misdeeds with the rod. For commonplace opinions on punishments, see Veall, Popular Movement for Law Reform, 28, and Zaller, "Debate on Capital Punishment," 132, 138-139. For some continental examples of class bias in the application of corporal punishment, see Ruth Pike, "Crime and Criminals in Sixteenth-Century Seville," Sixteenth Century Journal 6 (1975): 6, 16-18.

³⁵ Winstanley, Law of Freedom, 591.

³⁶ Winstanley, Law of Freedom, 595. For Overton's views, see his An Appeale from the Degenerate Representative Body of the Commons of England (London, 1647), rptd. in Leveller Manifestoes, ed. Don M. Wolfe, 193.

³⁷ Winstanley, Law of Freedom, 592.

³⁸ Winstanley, Law of Freedom, 553, 598.

³⁹ Veall, Popular Movement for Law Reform, 134. On the influence of lawyers on the Hale Commission, see Mary Cottrell, "Interregnum Law Reform: The Hale Commission of 1652," English Historical Review 83 (1968): 690-692, 694-695, and Veall, Popular Movement for Law Reform, 83.

⁴⁰ See Zaller, "Debate on Capital Punishment," 132-133, for bondage to the state as a common moderate alternative to death for theft. For Leveller views on this issue, see Overton, Appeale, 193; Samuel Chidley, A Cry Against a Crying Sin (London, 1652), rptd. in The Harleian Miscellany; or, A Collection of Scarce, Curious, and Entertaining Pamphlets and Tracts, 12 vols. (London: R. Dutton, 1808-1811), 6:283; and Zaller, "Debate on Capital Punishment," 133-135. For examples of Quaker endorsement of bondage to the state, see Edward Billing, A Mite of Affection (London, 1659), 3; Richard Farnworth, Gods Covenanting with his People (London: Giles Calvert, 1653); 38, 42-43; and George Fox, To the Protector and Parliament (London: Giles Calvert, 1658), 13; Fifth Monarchist opinion can be found in William Aspinwall, The Legislative Power is Christs (London: Livewell Chapman, 1656), 31; Brayne, New Earth, 55; and the anonymous Door of Hope (London, 1660), 5. Some Fifth Monarchist and Quaker authors did not specify whether convicts would be kept in bondage to the state or to private citizens, but all of them clearly supported the "sale" of criminals as an alternative to death for theft.

⁴¹ Winstanley, Law of Freedom, 592, 594-595. Winstanley favored public commendations for persons who, after being enticed to engage in commercial transactions, resisted and reported the offense to an overseer.

⁴² Winstanley, Law of Freedom, 592-593. Winstanley's concern that farm families keep the proper implements reveals the importance he placed on agriculture as the economic basis of his conmmunist commonwealth.

⁴³ Winstanley, Law of Freedom, 551, 593-594.

⁴⁴ Winstanley, Law of Freedom, 592, 599.

⁴⁵ Winstanley, Law of Freedom, 553-554, 597-598.

⁴⁶ Rogers, "Law Reform and Legal Thought," 468-478.

⁴⁷ Gerald Aylmer, "The Religion of Gerrard Winstanley," in Radical Religion in the English Revolution, ed. J. F. McGregor and Barry Reay (Oxford: Oxford UP, 1984), 110-111, has criticized Davis' thesis about Winstanley's embrace of coercive state authority. Aylmer stresses, quite correctly, that by the time Law of Freedom appeared, Winstanley had realized that a coercive state had defeated the Digger movement; hence, he realistically insisted on a radically new state and legal system for the new society he envisioned.

⁴⁸ Hill, Religion of Winstanley, 28-29; Kenyon, Utopian Communism, 203.

⁴⁹ Winstanley, Law of Freedom, 545-546, 555-556.

⁵⁰ Winstanley, Law of Freedom, 558-559.

⁵¹ This point was underscored by Christopher Hill as early as 1972; see Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (New York: Viking, 1972), 108, and idem, Religion of Winstanley, 42.