Free-born John

The story told in the recent Channel 4 drama “The Devil’s Whore” takes place during the civil war in 17th century England. Commendably, it avoids the tired stereotypes of Cavaliers and Roundheads in favour of a more nuanced depiction of the contending political forces, among them those precursors of democracy, the Levellers, led by John Lilburne.

Lilburne is only now coming to be recognised as a fundamentally important figure in our political and legal history. He was also a man of extraordinary personal courage and determination. Cromwell made him a colonel in his army, but he became disillusioned when Cromwell abandoned the democratic programme which Lilburne passionately advocated.

Just defence

In his early twenties Lilburne was brought before the Star Chamber accused of sending “factious and seditious libels out of Holland into England”. When questioned he refused to answer, saying: “I know it is warrantable by the law of God, and I think by the law of the land, that I may stand on my just defence, and not answer your interrogatories, and that my accusers ought to be brought face to face, to justify what they accuse me of.”

He was whipped and pilloried but his claims to the right of silence and to hear and challenge the evidence against him were a dramatic challenge to an oppressive judicial process. In 1641 he was vindicated by the House of Commons which resolved that the “sentence of the Star Chamber given against John Lilburne is illegal and against the liberty of the subject: and also bloody, cruel, barbarous, and tyrannical”. Later, however, he accused the commons of reviving the practices of the Star Chamber when he was arrested for publishing pamphlets advocating religious toleration and attacking suppression of dissent. Again he refused to answer incriminating questions, condemned the secrecy of the proceedings, and cited the authority of Magna Carta.

Democratic contribution

Lilburne’s contribution to our democracy and our law has never been properly credited. His role in establishing fairness in the judicial system is especially significant today when we are seeing the erosion of principles which for centuries were believed to be sacrosanct.

Though this successful challenge to the Star Chamber contributed to its abolition, some of its practices continued to be followed in the ordinary courts and in Parliament after the execution of Charles I. Lilburne’s rift with the increasingly authoritarian Cromwell led to further prosecutions. Cromwell attacked Lilburne’s “seditious scribbling” and said either Lilburne or himself would perish for it.

In 1649, Lilburne was tried at the Guildhall for high treason by a specially appointed commission which included no less than 14 judges. He demanded to see the indictment against him and to have access to legal advice, neither of which was at that time routinely allowed. He refused to plead without them. As before he refused to answer incriminating questions. By sheer force of argument he persuaded the court to give in to his demands.

His advice to the jury that they need not apply the law unless they approved of it was perhaps more questionable, but they declared him not guilty.

After recording the verdict the report of the trial continues: “‘No’ being pronounced with a loud voice, immediately the whole multitude of people in the hall, for joy of the prisoner’s acquittal, gave such a loud and unanimous shout as is believed was never heard in Guildhall, which lasted for about half an hour without intermission: which made the judges for fear turn pale and hang down their heads.”

Future generations

Lilburne’s popularity had reached its height at this point but the Levellers movement was in decline and Lilburne’s financial difficulties led him into further conflict which this time led to his banishment to Holland. Although he was allowed to return to England in 1653 he never recovered his influence and died at the age of 42 in 1657. Nevertheless the advantages he secured in defending himself in his trials became enshrined in the law for the benefit of future generations.

In 1961, Michael Foot MP asked the government whether in view of “recent historical evidence of the part played by the Levellers in the establishment of Parliamentary freedom and democracy in this country”, a suitable memorial to Lilburne could be erected in the Palace of Westminster. It does not seem to have happened, but it is not too late to honour a great civil libertarian. Now would be appropriate time when our government is only too ready to ignore our hard-won heritage of liberty and equal justice.