The Digger Movement in the Days of the Commonwealth / As Revealed in the Writings of Gerrard Winstanley, the Digger, Mystic and Rationalist, Communist and Social Reformer

by Lewis Henry Berens

“The King’s Old Laws cannot serve a Free Commonwealth.”

And this formed the heading of his next chapter, in which in a specially lively manner he first points out that the Laws of a Monarchy—which, being based upon inequality, necessarily tend to produce inequality, and whose main function is to legalise and to maintain privileges—are necessarily essentially different from those suitable to a Free Commonwealth—which, being based upon the recognition of the equality of rights, would necessarily tend to produce an equality of social conditions; and whose main function would be to establish and to legalise Justice, equal rights and equal duties, to maintain and to enforce the equal claims of all to the use of the earth, to life, to liberty, and to the pursuit of happiness. It commences as follows:

Of kingly Laws.

“The King’s Old Laws cannot govern in times of Bondage and in times of Freedom too. They have indeed served many masters, Papish and Protestant. They are like old Soldiers, who will but change their name, and turn about, and as they were. The Reason is because they are the prerogative will of those, under any Religion, who count it no Freedom to them unless they be Lords over the minds, persons and labors of their bretheren.

“They are called the King’s Laws, because they are made by the King. If any say they were made by the Commoners, it is answered, They were not made by the Commoners as the Commoners of a Free Commonwealth are to make Laws. For in the days of the King none were to choose or be chosen Parliament Men, or Law Makers, but Lords of Manors, and Freeholders, such as held title to their Enclosures of Land, or Charters for their Liberties in Trades, under the King, who called the Land his, as he was the Conqueror or his successor. All inferior people were neither to choose nor be chosen. And the reason was because all Freeholders of Land and such as held their Liberties by Charter, were all of the King’s interest; and the inferior people were successively of the rank of the conquered ones, and servants and slaves from the time of the Conquest.

“Further, when a Parliament was chosen in that manner, yet if any Parliament Man, in the uprightness of his heart, did endeavour to promote any freedom contrary to the King’s will or former customs from the Conquest, he was either committed to prison by the King or by the House of Lords, who were his ancient Norman successive Council of War; or else the Parliament was dissolved and broke up by the King. So that the old Laws were made in times under Kingly Slavery, not under the liberty of Commonwealth’s Freedom, because Parliament Men had to have regard to the King’s prerogative interest to uphold his conquest, or else endanger themselves. As sometimes it is in these days, some Officers dare not speak against the minds of those men who are the chief in power, nor a Private Soldier against the mind of his Officer, lest they be cashiered their places and livelihood. And so long as the promoting of the King’s will and prerogative was to be in the eye of the Law Makers, the oppressed Commoners could never enjoy Commonwealth’s Freedom thereby. Yet by the wisdom, courage, faithfulness and industry of some Parliament Men, the Commoners have received here a line and there a line of freedom inserted into their Laws: as those good lines of freedom in Magna Charta were obtained by much hardship and industry.

“Secondly, They were the King’s Laws, because the King’s own creatures made the Laws: Lords of Manors, Freeholders, etc., were successors of the Norman soldiers from the Conquest, therefore they could do no other but maintain their own and the King’s interest. Do we not see that all Laws were made in the days of the King to ease the rich Landlord? The poor laborers were left under bondage still; they were to have no freedom in the earth by those pharisaical Laws. For when Laws were made and Parliaments broke up, the poor oppressed Commoners had no relief; the power of Lords of Manors, withholding the free use of the Common-land from them, remained still. For none durst make any use of any Common-land but at the Lord’s leave, according to the will and law of the Conqueror. Therefore the old Laws were called King’s Laws.”

Of Commonwealth’s Laws.

“These old Laws cannot govern a Free Commonwealth; because the Land is now to be set free from the slavery of the Norman Conquest, and the power of Lords of Manors and Norman Freeholders is to be taken away. Or else the Commoners are but where they were, if not fallen lower into straits than they were. The Old Laws cannot look with any other face than they did; though they be washed with Commonwealth’s water, their countenance is still withered. Therefore it was not for nothing that the Kings would have all their Laws written in French and Latin, and not in English; partly in honor to the Norman Race, and partly to keep the Common People ignorant of their Creation Freedom lest they should rise to redeem themselves. And if those Laws should be writ in English, yet if the same Kingly Principles remain in them, the English language would not advantage us anything, but rather increase our sorrow by our knowledge of our bondage.”

“What is Law in general?”