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 Work or Office of a Task-master is to take those into his oversight as are sentenced by the Judge to loose their Freedom, to appoint them their work, and to see they do it.”

The Work of a Judge.

“The Law itself is the Judge of all Men’s Actions; yet he who is chosen to pronounce the Law is called Judge, because he is the mouth of the Law: for no single man ought to judge or to interpret the Law. Because the Law itself, as it is left us in the letter, is the mind and determination of the Parliament and of the people of the Land, to be their Rule to walk by and to be the touch-stone of all actions. And the man who takes upon him to interpret the Law, doth either darken the sense of the Law, and so make it confused and hard to be understood, or else puts another meaning upon it, and so lifts up himself above the Parliament, above the Law, and above all people in the Land.

“Therefore the work of that man who is called Judge is to hear any matter that is brought before him; and in all cases of difference between man and man, he shall see the parties on both sides before him, and shall hear each man speak for himself, without a fee’d Lawyer; likewise he is to examine any witness who is to prove a matter on trial before him. And then he is to pronounce the bare letter of the Law concerning such a thing: for he hath his name Judge, not because his will or mind is to judge the actions of offenders before him, but because he is the mouth to pronounce the Law, who, indeed, is the true Judge: Therefore to this Law and to this Testimony let everyone have regard who intends to live in Peace in the Commonwealth.”

Then occurs a passage that shows how carefully Winstanley had watched the public affairs of his own times, more especially the prolonged attempt of the late King to govern England under cover of ancient obsolete Laws interpreted by Judges removable at his will. He continues:

“For hence hath arisen much misery in the Nations under Kingly Government, in that the man called the Judge hath been suffered to interpret the Law. And when the mind of the Law, the Judgement of the Parliament and the Government of the Land, is resolved into the breasts of the Judges, this hath occasioned much complaining of Injustice in Judges, in Courts of Justice, in Lawyers, and in the course of the Law itself, as if it were an evil Rule. Because the Law which was a certain Rule was varied, according to the will of a covetous, envious or proud Judge. Therefore no marvel though the Kingly Laws be so intricate, and though few know which way the course of the Law goes, because the sentence lies many times in the breast of a Judge, and not in the letter of the Law. And so the good Laws made by an industrious Parliament are like good eggs laid by a silly goose, and as soon as she hath laid them, she goes her way and lets others take them, and never looks after them more, so that if you lay a stone in her nest, she will sit upon it as if it were an egg. And so, though the Laws be good, yet if they be left to the will of a Judge to interpret, the execution hath many times proved bad.”

“What is the Judge’s Court?

“In a County or Shire there are to be chosen—A Judge, the Peacemakers of every Town within that Circuit, the Overseers, and a band of Soldiers attending thereupon: and this is called the Judge’s Court or the County Senate. The Court shall sit four times in the year, or oftener if need be.... If any disorder break in among the people, this Court shall set things to right. If any be bound over to appear at this Court, the Judge shall hear the matter, and pronounce the letter of the Law, according to the nature of the offence. So that the alone work of the Judge is to pronounce the Sentence and mind of the Law: and all this is but to see the Law executed and the Peace of the Commonwealth preserved.”

“What is the Work of a Commonwealth’s Parliament in General?”

Winstanley then sketches, first in broad outline and then in detail, what he deemed the work of a Commonwealth’s Parliament should be; and for our own part we know not where to find a higher ideal of the duties incumbent upon the chosen Representatives of the People: an ideal that no Parliament to this day has ever attained, and which probably is only attainable when there shall be a strong body of educated public opinion, loving Justice and deserving Justice, inspiring and supporting their endeavours. He commences as follows: