As one pamphleteer put it:

"England is a prison...the lawyers are jailers and poor men are the prisoners . "

            THE above quote helps the 20th century reader understand that there was a substantial

portion of the English population that was growing increasingly tired of the laws as they stood.

Two of the main targets of the law reformers were the court systems themselves that benefited

immensely from fmding business to do and the criminal law which was generating a

considerable amount of criticism amongst the pamphleteers and reformers because of ! ts often

barbarous harshness.

The criminal law , according to William Cole, "because it was made for the benefit of

the king. .. had no compunction in taking away a man's life and property." One of the biggest

problems with the court systems themselves were, according to J. Warr , was that" ...lawyers

and officials grew rich on the ruin of others. "

While the reformers were, according to Holdsworth , " .. . never anything more than a

noisy but small minority," I think we will see that" . . . the real merit of the law reformers is

that they foresaw the path of history. It is they whom we honor today, not their opponents. , ,2

With the invention of the printing press the old world began to wither. A hundred and

fifty years or so after its invention people were using the newfound concept of the mass media

in great numbers. This invention cannot be underestimated and I don't think many historians

1 Veall quoting G. Winstanley , "A New Year's Gift."

2 Veall at 239-40.

,

,

do . No longer was it necessary to use loud oral communications that might offend a status quo

\...,../

loving king to the point of his ordering one's execution for treason. No longer did one have to

venture to a village square or the like at a certain time to hear what political debate was going

on . And people began to get used to ideas that they could take home with them and analyze.

Pamphleteers were getting the message out that people were growing weary of corrupt

officials-- often connected with the criminal law system-- committing atrocities under color of

                       ~

            some sort of royal prerogative or perhaps running jails permitted by royal patent. They were

growing tired of court officials who "received fees on the basis of work done. ,,3 When Francis

Bacon was charged with his now famous career ending corruptions, he excused himself by

saying he had indulged in the abuses of the times.4 Historical reading shows us that, maybe

similarly to the modern era, lawyers and court officials often possessed great wealth and

property . There were often lavish shows, masques and plays performed at the Inns of Court;

'-""'

Shakespearean plays and such were performed at the Inns. The people (or the rabble

depending on who is doing the labelling ) mu~t have felt resentment watching this sort of

wealth inequity, particularly those who had seen friends and relatives go to the gallows often

for petty property crimes. Commentator Chidley saw the harshness of the criminal law as

..

~

being due to man's greed and their fear oflosing their worldly possessions.5 In a society

based on private ownership of land and the unequal enjoyment of privileges, Winstanley said

the function of the law was: "To uphold the conquering sword and to preserve his son's

3 Veall at 42. 4 Veall at 43.

5 Veall at 101.

'-/

...

,

property6." Above all, according to Veall , the reformers wanted to reduce the number of

'-"

capital offenses. Winstanley was apparently one of the first to intellectualize the fact that

maybe theft was created due to a combination of poverty plus the private ownership of

property . Addressing Parliament, Cromwell said: "... to see men lose their lives for petty

matters ! This ~s a thing God will reckon for. 7" Others managed to figure out for the first time

that the punis~ent of execution for offenses such as theft would logically drive a thief to

~

become a murderer'in order to do away with witnesses. Commenting on a then co

ntemporary

rash of executions, Coke said, "What a lamentable pity it is to see so many Christian men and

women strangled on that cursed tree of the gallows8." However, Coke fully supported the

ritual like and symbolic mutilation death of those convicted of treason. According to Veall ,

Coke found support in the Bible for this punishment. Winstanley also was willing to find a

very limited role for the death penalty. 9

~/

It is .important of course that the better sort realized that torture method confessions

might not be the right thing to do. While the refusal to plea was initially considered a guilty

plea , the abolition of the "lingering and cruel" peine forte et dure torture is certainly an

/

important step in what would become the American Rochin rule. The Levellers advocated the

idea that no man should be compelled to answer questions against himself or his nearest

relations . This idea is with us today as an inherent part of out 5th Amendment jurisprudence

and modern rules I of evidence recognition that husband I s -and wives should not be compelled

6 Veall at 107.

7 Veall at 1.

8 Veall citing 3rd Institute at p.255. 9 Veall at 108.

" - /'

-'

,

by the state to incriminate their partners without the desire to do so. Related to the king' s

'-../

interests in detecting what he considered crime was the idea Coke had that the informant

system --because of its inherent dangers of informant self interest--was not a good idea.

According to Coke's 3rd Institute it hit the poor the hardest and was never undertaken for the

love of justi~e . 10 The informant system appears to be basically alive today in this country, no small thank-!to the Edward Meese school of law enforcement that some criticize as a cruelly

conceived way of repressing the meaner sort and making a ton of cash at the same time. Full

time informants with criminal records often far more extensive than those they are trying to

jail are justified due to practical difficulties of infiltrating certain groups. Too bad Coke

wasn't more influential in getting rid of these scumbags.

This is the period where the idea of trial by jury got rolling. It is important to note,

however , that trial by jury was a hotly debated issue even amongst the reformers with many of

\ ...... /.

them distrusting the idea. Extending the franchise was one of the Levellers main ideas for law

reform ; part of this extension was increased authority for juries. 11 This was a far cry from the

~

system that was keeping juries without bread, fire and water until reaching verdicts. The idea

of jury nullification that was beginning to come to life was a vastly different idea than the one

that allowed judges to punish juries who reached incorrect verdicts.

Outside of Holmesburg Prison in 1994 Philadelphia is a mission describing sign

containing a Quaker quote: "The opportunity to change with dignity." The 17th Century

Levellers sought to make prison, in so far as it was to be retained at all, serve a useful and

constructive purpose, "not for the punishment or destruction of the prisoners."

10 Veall at 9.

11 Veall at 98.

' .. /

1 ,/

I'

"Prison was a place that hath more disease .. .than the pesthouse in plague time.1z"

' .................. /

Similarly to the various court systems, prison officials were legitimately paid, so to speak, by

fees extracted from the prisoners for such bargains as being admitted to the jail, having one's

.name entered in the gaoler's book, food, release, etc. A deceased debtor's family had the

privilege of paying the official's a fee so they could recover the family member's corpse.13 Almost obviJslY , many of the prisoners were poor and often depended on food from

passerbys to survive. According to Veall , money was sometimes bequeathed for the relief of

poor prisoners but often found its way into the pockets of prison officials. 14 Some of the men

who served as gaolers and hangmen appear to me at least to have been despicable human

                                         '--­

beings . According to Veall , "the hangman did good business by exacting fees from the

condemned man for kind treatment.1s" These problems, like the previously described ones,

were not going unrecognized: Edward Billing proposed that "all unrighteous cruel and

, '-.:./

exacting jailers should be removed.. .and should be replaced by others 'fearing God and hating

covetopsness ." George Fox also wanted gamblers and alcohol lovers excluded from

consideration as jail guards.16 Probably because of the recognition that private, for profit, jails

were not working the purchase of the office of jailer was forbidden in 1730.17 It appears to me

that this was one area of reform that we still have not come to grips with. Talk of

privatization of jails was very popular during the 80s, stories of corrupt jail guards still

12 Veall at 15.

13 Veall at 16.

14 Veall at 15.

15 Veall at 5.

16 Veall at 144.

0

17 Veall at 234.

r

~

\

~

abound . Diseases such as AIDS and deadly drug resistant strains of tubcerculosis are rampant

" ----- '

in pri~ons ; courts in no uncertain terms write of drastically diminished consitutional rights for

prisoners ; and the judges will tell you that penal interests are best served by allowing prison

officials to decide what's best for prisons. After all, say the better sort judges, they're the

ones with the administrative expertise.

            Wri~n 1962, S.E. Prall thought the law reform movement was of little account

because it was spearheaded by pamphleteers with little or no knowledge of the law and it was

without a well planned comprehensive program.18 This of course is refuted by the mention of

names such as Coke, Bacon and Hale who were all involved in varying ways with reforming

what we c~illaw . If Hale's name had earlier been attached to the law reform movement, Veall writes, it would have been more difficult for history to downplay the importance of the

movement early on.19 One major and commonsensical reason, according to historians, for the

~ movement's initial early rejections was the fact that there was no stable government--the army

                 governed . T~erefore it wa~ ble-to~legiSla~a large scale because energi~s were

~

being focused on protection of the land and its boundaries.

According to Holdsworth a big problem was the vested interests of the legal profession

'..

who were, after all, running the show at the time. The reforms could not be carried out

during the 17th century because they were opposed by almost all those who had had a

technical training in the system where reform was proposed.2O The Restoration basically put

an end to many of the proposed reforms and brought back the old unreformed judicial

18 Veall at 237.

19 Veall at 239.

20 6 History of English Law 434.

',---.

,

,

....

, ~

\.-.­

"' . ,...­

~

'~~

system.21 However, as was earlier stated, it is the reformers' ideas that we follow today, not

their opponents'. Veall's ideas as to what the reform movement was about is encompassing:

"There was a modern atmosphere about many of the proposed remedies; respect for men as human beings and for the rights of the individual, along with a concern to seek the cause of the crime, and the questioning of the effectiveness of traditional forms of punishment. 22"

(

I

)

i \

21 rd.

22 Veal 1 at 236.

.,

('

As one pamphleteer! put it:

"England is a prison...the lawyers are jailers and poor men are the prisoners . "

            T~bove quote helps the 20th century reader understand that there was a substantial

portion of the English population that was growing increasingly tired of the laws as they stood.

Two of the main targets of the law reformers were the court systems themselves that benefited

immensely from fmding business to do and the criminal law which was generating a

considerable amount of criticism amongst the pamphleteers and reformers because of ! ts often

barbarous harshness.

The criminal law , according to William Cole, "because it was made for the benefit of

the king. .. had no compunction in taking away a man's life and property." One of the biggest

problems with the court systems themselves were, according to J. Warr , was that" ...lawyers

and officials grew rich on the ruin of others. "

While the reformers were, according to Holdsworth , " .. . never anything more than a

noisy but small minority," I think we will see that" . . . the real merit of the law reformers is

that they foresaw the path of history. It is they whom we honor today, not their opponents. , ,2

With the invention of the printing press the old world began to wither. A hundred and

fifty years or so after its invention people were using the newfound concept of the mass media

in great numbers. This invention cannot be underestimated and I don't think many historians

1 Veall quoting G. Winstanley , "A New Year's Gift."

2 Veall at 239-40.

,

,

do . No longer was it necessary to use loud oral communications that might offend a status quo

\...,../

loving king to the point of his ordering one's execution for treason. No longer did one have to

venture to a village square or the like at a certain time to hear what political debate was going

on . And people began to get used to ideas that they could take home with them and analyze.

Pamphleteers were getting the message out that people were growing weary of corrupt

officials-- often connected with the criminal law system-- committing atrocities under color of

                       ~

            some sort of royal prerogative or perhaps running jails permitted by royal patent. They were

growing tired of court officials who "received fees on the basis of work done. ,,3 When Francis

Bacon was charged with his now famous career ending corruptions, he excused himself by

saying he had indulged in the abuses of the times.4 Historical reading shows us that, maybe

similarly to the modern era, lawyers and court officials often possessed great wealth and

property . There were often lavish shows, masques and plays performed at the Inns of Court;

'-""'

Shakespearean plays and such were performed at the Inns. The people (or the rabble

depending on who is doing the labelling ) mu~t have felt resentment watching this sort of

wealth inequity, particularly those who had seen friends and relatives go to the gallows often

for petty property crimes. Commentator Chidley saw the harshness of the criminal law as

..

~

being due to man's greed and their fear oflosing their worldly possessions.5 In a society

based on private ownership of land and the unequal enjoyment of privileges, Winstanley said

the function of the law was: "To uphold the conquering sword and to preserve his son's

3 Veall at 42. 4 Veall at 43.

5 Veall at 101.

'-/

...

,

property6." Above all, according to Veall , the reformers wanted to reduce the number of

'-"

capital offenses. Winstanley was apparently one of the first to intellectualize the fact that

maybe theft was created due to a combination of poverty plus the private ownership of

property . Addressing Parliament, Cromwell said: "... to see men lose their lives for petty

matters ! This ~s a thing God will reckon for. 7" Others managed to figure out for the first time

that the punis~ent of execution for offenses such as theft would logically drive a thief to

~

become a murderer'in order to do away with witnesses. Commenting on a then co

ntemporary

rash of executions, Coke said, "What a lamentable pity it is to see so many Christian men and

women strangled on that cursed tree of the gallows8." However, Coke fully supported the

ritual like and symbolic mutilation death of those convicted of treason. According to Veall ,

Coke found support in the Bible for this punishment. Winstanley also was willing to find a

very limited role for the death penalty. 9

~/

It is .important of course that the better sort realized that torture method confessions

might not be the right thing to do. While the refusal to plea was initially considered a guilty

plea , the abolition of the "lingering and cruel" peine forte et dure torture is certainly an

/

important step in what would become the American Rochin rule. The Levellers advocated the

idea that no man should be compelled to answer questions against himself or his nearest

relations . This idea is with us today as an inherent part of out 5th Amendment jurisprudence

and modern rules I of evidence recognition that husband I s -and wives should not be compelled

6 Veall at 107.

7 Veall at 1.

8 Veall citing 3rd Institute at p.255. 9 Veall at 108.

" - /'

-'

,

by the state to incriminate their partners without the desire to do so. Related to the king' s

'-../

interests in detecting what he considered crime was the idea Coke had that the informant

system --because of its inherent dangers of informant self interest--was not a good idea.

According to Coke's 3rd Institute it hit the poor the hardest and was never undertaken for the

love of justi~e . 10 The informant system appears to be basically alive today in this country, no small thank-!to the Edward Meese school of law enforcement that some criticize as a cruelly

conceived way of repressing the meaner sort and making a ton of cash at the same time. Full

time informants with criminal records often far more extensive than those they are trying to

jail are justified due to practical difficulties of infiltrating certain groups. Too bad Coke

wasn't more influential in getting rid of these scumbags.

This is the period where the idea of trial by jury got rolling. It is important to note,

however , that trial by jury was a hotly debated issue even amongst the reformers with many of

\ ...... /.

them distrusting the idea. Extending the franchise was one of the Levellers main ideas for law

reform ; part of this extension was increased authority for juries. 11 This was a far cry from the

~

system that was keeping juries without bread, fire and water until reaching verdicts. The idea

of jury nullification that was beginning to come to life was a vastly different idea than the one

that allowed judges to punish juries who reached incorrect verdicts.

Outside of Holmesburg Prison in 1994 Philadelphia is a mission describing sign

containing a Quaker quote: "The opportunity to change with dignity." The 17th Century

Levellers sought to make prison, in so far as it was to be retained at all, serve a useful and

constructive purpose, "not for the punishment or destruction of the prisoners."

10 Veall at 9.

11 Veall at 98.

' .. /

1 ,/

I'

"Prison was a place that hath more disease .. .than the pesthouse in plague time.1z"

' .................. /

Similarly to the various court systems, prison officials were legitimately paid, so to speak, by

fees extracted from the prisoners for such bargains as being admitted to the jail, having one's

.name entered in the gaoler's book, food, release, etc. A deceased debtor's family had the

privilege of paying the official's a fee so they could recover the family member's corpse.13 Almost obviJslY , many of the prisoners were poor and often depended on food from

passerbys to survive. According to Veall , money was sometimes bequeathed for the relief of

poor prisoners but often found its way into the pockets of prison officials. 14 Some of the men

who served as gaolers and hangmen appear to me at least to have been despicable human

                                         '--­

beings . According to Veall , "the hangman did good business by exacting fees from the

condemned man for kind treatment.1s" These problems, like the previously described ones,

were not going unrecognized: Edward Billing proposed that "all unrighteous cruel and

, '-.:./

exacting jailers should be removed.. .and should be replaced by others 'fearing God and hating

covetopsness ." George Fox also wanted gamblers and alcohol lovers excluded from

consideration as jail guards.16 Probably because of the recognition that private, for profit, jails

were not working the purchase of the office of jailer was forbidden in 1730.17 It appears to me

that this was one area of reform that we still have not come to grips with. Talk of

privatization of jails was very popular during the 80s, stories of corrupt jail guards still

12 Veall at 15.

13 Veall at 16.

14 Veall at 15.

15 Veall at 5.

16 Veall at 144.

0

17 Veall at 234.

r

~

\

~

abound . Diseases such as AIDS and deadly drug resistant strains of tubcerculosis are rampant

" ----- '

in pri~ons ; courts in no uncertain terms write of drastically diminished consitutional rights for

prisoners ; and the judges will tell you that penal interests are best served by allowing prison

officials to decide what's best for prisons. After all, say the better sort judges, they're the

ones with the administrative expertise.

            Wri~n 1962, S.E. Prall thought the law reform movement was of little account

because it was spearheaded by pamphleteers with little or no knowledge of the law and it was

without a well planned comprehensive program.18 This of course is refuted by the mention of

names such as Coke, Bacon and Hale who were all involved in varying ways with reforming

what we c~illaw . If Hale's name had earlier been attached to the law reform movement, Veall writes, it would have been more difficult for history to downplay the importance of the

movement early on.19 One major and commonsensical reason, according to historians, for the

~ movement's initial early rejections was the fact that there was no stable government--the army

                 governed . T~erefore it wa~ ble-to~legiSla~a large scale because energi~s were

~

being focused on protection of the land and its boundaries.

According to Holdsworth a big problem was the vested interests of the legal profession

'..

who were, after all, running the show at the time. The reforms could not be carried out

during the 17th century because they were opposed by almost all those who had had a

technical training in the system where reform was proposed.2O The Restoration basically put

an end to many of the proposed reforms and brought back the old unreformed judicial

18 Veall at 237.

19 Veall at 239.

20 6 History of English Law 434.

',---.

,

,

....

, ~

\.-.­

"' . ,...­

~

'~~

system.21 However, as was earlier stated, it is the reformers' ideas that we follow today, not

their opponents'. Veall's ideas as to what the reform movement was about is encompassing:

"There was a modern atmosphere about many of the proposed remedies; respect for men as human beings and for the rights of the individual, along with a concern to seek the cause of the crime, and the questioning of the effectiveness of traditional forms of punishment. 22"

(

I

)

i \

21 rd.

22 Veal 1 at 236.

.,

('