“Short and pithy laws are best to govern a Commonwealth”: The Diggers’ Mid-17th-Century Program of Law Reform

The radical political movement for social and environmental justice, described by a sympathetic contemporary (the lawyer and politician Bulstrode Whitelocke [1605–1675]) as “the Diggers and Planters of Commons, for universal Freedom, to make the Earth a common Treasury,” sought a thorough reformation of law as part of their program to restore a worldly government of “True Magistracy.” Following the overthrow of Stuart and episcopal tyranny and the army’s seizure of power at the end of 1648, the Digger leader Gerrard Winstanley (bap. 1609, d. 1676) argued that a free people living in a free commonwealth needed new laws to govern themselves by — laws like “that righteous law of Christ, Do as you would be done by” which promoted the public good, rather than furthering the private interests of the rich and powerful, including “grandees” in the revolutionary army and parliament.

Winstanley’s mid-century manifesto on liberty and justice, The Law of Freedom in a Platform: or, True Magistracy Restored (with two printings in 1652),

was a carefully constructed and polished document, intended to enlist the power and influence of Oliver Cromwell and to persuade a wide audience of the justice, practicality, and restorative capacity of what was now presented as a national scheme.

(ODNB entry for Gerrard Winstanley by J. C. Davis and J. D. Alsop, unpaginated)

“Reformation, both in Manners and in the Administration of Justice” was a signature issue for Cromwell — whom Winstanley cast as a modern-day Moses (both men being “the Head of a People, who have cast out an Oppressing Pharaoh”) — and his protectorate (Cromwell became lord protector in December 1653), as reaffirmed by Oliver’s son and successor, Richard, in 1659 (The Speech of His Highness the Lord Protector, 1659; qtd. in ODNB entry for Richard Cromwell by Peter Gaunt; see also the ODNB entry for Oliver Cromwell by John Morrill). So in this sense, at least, Winstanley was preaching to the choir when he pleaded with Cromwell to bolster the fragile republican regime by seeing to it that “the Oppressors Power ... be cast out with his person” (Epistle Dedicatory to The Law of Freedom, 1652, A2r).

According to Winstanley, magistracy (government) is rooted in two conflicting aims: the pursuit of “common Preservation” — “the Law of common Preservation is the Rule and Foundation of true Magistracy: and it is the work of all Magistrates to help the weak and the foolish” (G. Winstanley, The Law of Freedom, 33) — and that of “Self-preservation.” Drawing on the teachings of Psalms 35:10 and Romans 15:1-2, Winstanley divines the instinct for common preservation in “the golden Rule, Let the wise help the foolish, and let the strong help the weak.” (G. Winstanley, The Law of Freedom, 32), which he claims is the foundation of righteous Adamic law and good government, leading to lasting “Peace and Freedom”:

... there is a principle in every one to seek the good of others, as himself, without respecting persons: and this is the root of the tree Magistracy, and the Law of Righteousness and Peace: and all particular Laws found out by experience, necessary to be practised for common Preservation, are the boughs and branches of that Tree.
And because, among the variety of Mankinde, Ignorance may grow up; therefore this Original Law is written in the heart of every man, to be his guide or leader: so that if an Officer be blinded by covetousness and pride, and that ignorance rule in him, yet an inferior man may tell him where he goes astray; for common Preservation and Peace is the Foundation-Rule of all Government: and therefore if any will preach or practise Fundamental Truths, or Doctrine, here you may see where the Foundation thereof lies.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 33)

In dialectical opposition to “True Magistracy” rooted in the righteous law of creation is oppressive magistracy, rooted in the law of the conqueror and the instinct for self-preservation, as in “kingly government,”

... when particular Officers seek their own Preservation, Ease, Honor, Riches, and Freedom in the Earth, and do respect persons that are in Power and Riches with them, and regard not the Peace, Freedom, and Preservation of the weak and foolish among Brethren.
And this is the root of the Tree Tyranny, and the Law of Unrighteousness, and all particular Kingly Laws found out by covetous Policy to enslave one brother to another, whereby bondage, tears, sorrows and poverty are brought upon many men, are all but the boughs and branches of that Tree, Tyranny; and such Officers as these are fallen from true Magistracy, and are no members thereof, but the Members of Tyranny, who is the Devil and Satan.
And indeed this Tyranny is the cause of all Wars and Troubles, and of the removal of the Government of the Earth out of one hand into another, so often as it is, in all Nations.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 33)

In chapter 6 of his treatise documenting the Diggers’ platform, Winstanley explained again why “The Kings old laws cannot govern a free Commonwealth” (The Law of Freedom, 1652, 76). The unreformed law of the post-war bourgeois revolutionary state was an instrument of oppression because “the Kings own creatures made the laws; or Lords of Mannors, Freeholders &c.” and they “could do no other but maintaine their own, and their kings interest” (The Law of Freedom, 1652, 77).

So that the old laws were made in times under kingly slavery, not under the liberty of Commonwealths freedome, because Parliament men must have regard to the Kings prerogative interest, to hold his Conquest, or else indanger themselves.
     As sometimes it is in these dayes: some officers, dare not speak against the minds of those men who are the chief in power, nor a private souldier against the minde of his officer, lest they be cashiered their places and livelihood.
     And so long as the promoting of the Kings will and prerogative was to be in the eye of the law makers, the oppressed Commoners, could never enjoy Commonwealths freedome thereby.
     Yet by the wisdome, courage, faithfulness, and industry, of some Parliament men, the Commoners have received here a line, and there a line of freedome inserted into their laws; as those good lines of freedom in Magna Charta were obtained by much hardship and industry.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 77)

Winstanley closes his The Law of Freedom in a Platform: or, True Magistracy Restored with an outline of the legal apparatus “whereby a Commonwealth is governed in a right order” (Chapter 6, pp. 76–89). A list of 62 “particular Laws” are arranged in 12 categories:

Laws for the planting of the Earth, &c.
Laws against Idleness.
Laws for Store-houses.
Laws for Overseers.
Laws against buying and selling.
Laws for Navigation.
Laws for Silver and Gold.
Laws to choose Officers.
Laws against Treachery.
Laws for such as have lost their Freedom.
Laws to restore Slaves to Freedom.
Laws for Marriage.

with freedom defined as:

Every Freeman shall have a Freedom in the Earth, to plant or build, to fetch from the Store-houses anything he wants, and shall enjoy the fruits of his labours without restraint from any; he shall not pay Rent to any Landlord, and he shall be capable to be chosen any Officer, so he be above forty years of age: If he wants any young men to be Assistance to him in his Trade or houshold employment, the Overseers shall appoint him young men or maids to be his servants in his family.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 86)

Many of these “particular Laws,” promoting a peaceful Diggers’ community of perfected humanity, were controversial, such as No. 28, prohibiting the business of real estate:

If any do buy and sell the Earth or fruits thereof, unless it be to, or with strangers of another nation, according to the Law of Navigation, they shall 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.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 84)

and No. 53, ensuring free health care:

If any persons be sick or wounded, the Chyrurgeons, who are trained up in the knowledg of Herbs and Minerals, and know to apply plaisters and Physick, shall go when they are sent for to any who need their help, but require no reward, because the Common Stock is the publique pay for every mans labour.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 87)

and No. 56, promoting marriage equality:

Every man and woman shall have the free liberty to marry whom they love, if they can obtain the love and liking of that party whom they would marry, and neither birth nor portion shall hinder the match, for we are all of one blood, Mankind; and for portion, the Common Store-houses are every man and maids portion, as free to one as to another.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 88)

and No. 58, mandating the death penalty for rape:

If a man lie with a woman forcibly, and she cry out, and give no consent; if this be proved by two Witnesses, or the mans confession, he shall be put to death, and the woman let go free; it is robbery of a woman bodily Freedom.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 88)

and No. 61, prohibiting waste:

No Master of a family shall suffer more meat to be dressed at a dinner or supper, then what will be spent and eaten by his houshold, or company present, or within such a time after, before it be spoyled. If there be any spoyl constantly made in a family of the food of Man, the Overseer shall reprove the Master for it privately; if that abuse be continued in his family, through his neglect of family government, he shall be openly reproved by the Peace-maker before all the people, and ashamed for his folly; the third time he shall be made a servant for twelve Moneths under the Task-master, that he may know what it is to get food, and another shall have the oversight of his house for the time.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 88)

Championing the people’s rights, Winstanley argued for reforming the abuses of the professions (the lawyers and clergy) and for a rebalancing of justice in favor of the poor. To start with, the laws governing a commonwealth should be “few and short, and often read” (The Law of Freedom, 1652, 81). The republican social contract depended on an engaged citizenry subject to the rule of “righteous law” and prepared for the responsibilities of self-government; as such, it was imperative that everyone, including illiterate laborers, fully understand (and accede to) their rights and obligations under the law. To help popularize “those particular Laws, or such a method of Laws, whereby a Commonwealth may be governed,” Winstanley recommended that

The Laws shall be read by the Minster to the people four times in the year, viz. every quarter, that every one may know whereunto they are to yeeld Obedience; then none may dye for want of knowledge.

(G. Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 81)

Winstanley’s call for “short and pithy” laws that all could grasp (combined with the conduct of legal proceedings in English rather than Latin) contributed to the plain language movement which gained ground in the 17th century.

Short and pithy laws are best to govern a Commonwealth.

“ The laws of Israels Commonwealth were few, short and pithy; and the government thereof was established in peace, so long as officers and people were obedient thereunto.

“ But those many laws in the dayes of the Kings of England, which were made some in times of Popery, and some in times of Protestantism, and the proceedings of the law being in French and Latine, hath produced two great evils in England.

“ First, it hath occasioned much ignorance among the people and much contention; and the people have mightily erred through want of knowledge, and thereby they have run into great expence of money by suits of law, or else many have been imprisoned, whipped, banished, lost their estates and lives by that law which they were ignorant of, till the scourge thereof was upon their backs; this is a sore evil among the people.

“ Secondly, the peoples ignorance of the laws, hath bread many sons of contention: for when any difference fals out between man and man, they neither of them know which offends the other; therfore both of them thinking their cause is good, they delight to make use of the law; and then they go and give a Lawyer mony to tell them, which of them was the offender. The Lawyer being glad to maintain their own trade, sets them together by the ears, till all their moneys be near spent; and then bids them refer the business to their neighbors, to make them friends; which might have been done at the first.

“ So that the course of the Law and Lawyers hath been a meer snare to entrap the people, and to pull their Estates from them by craft; for the Lawyers do uphold the Conquerors Interest, and the peoples Slavery: so that the King seeing that, did put all the affairs of Judicature into their hands: And all this must be called Justice, but it is a sore Evil.

“ But now if the Laws were few and short, and often read, it would prevent those Evils; and every one, knowing when they did well, and when ill, would be very cautious of their words and actions; and this would escape the Lawyers craft.

“ As Moses Laws in Israels Commonwealth: The People did talk of them when they lay down, and when they rose up, and as they walked by the way; and bound them as bracelets upon their hands: so that they were an understanding people in the Laws wherein their peace did depend.

“ But it is a sign that England is a blinded and a snared generation; their Leaders through pride and covetousness have caused them to err, yea and perish too, for want of the knowledg of the Laws, which hath the power of Life and Death, Freedom and Bondage, in its hand. But I hope better things hereafter.

SOURCE: Winstanley, Gerrard. “Short and pithy laws are best to govern a Commonwealth.” In The law of freedom in a platform: or, true magistracy restored. Humbly presented to Oliver Cromwel, General of the Common-wealths army in England, Scotland, and Ireland. And to all English-men my brethren whether in church-fellowship, or not in church-fellowship, both sorts walking as they conceive according to the order of the Gospel: and from them to all nations in the world. Wherein is declared, what is kingly government, and what is Commonwealths government. By Jerrard Winstanley. London: Printed for the author, and are to be sold by Giles Calvert at the black Spred-Eagle at the west end of Pauls, 1652. 80–81.