The below book review was first published on the Counsel Magazine website.
Reviewer: Russell Harris QC, a Planning and Environment Silk and Special Advocate at Landmark Chambers
The Common Freedom of the People
Author: Michael Braddick
Publisher: Oxford University Press
John Lilburne (1614-1657) was a sometime Leveller, political activist and litigant, who during his short life was accused of treason four times and was put on trial for his life under both Charles I and Oliver Cromwell.
In the course of this extraordinary existence, he fought important legal battles for the right to remain silent, to have trials conducted in public and to be tried by a jury of his peers. The US Supreme Court cites him as being important in the making and framing of both the 5th Amendment right against self-incrimination and the 6th Amendment right to a fair trial. Of the eight pillars making up the present day ‘Rule of Law’ identified by Tom Bingham in his seminal summary of the common law, Lilburne arguably played at least a part in securing six.
Michael Braddick’s new ‘political life’ of Lilburne is the first for 60 years. Unlike its predecessors, it explores Lilburne’s thinking through the prism of modern sensibilities. Thus, Lilburne’s fight for our prevailing secular freedoms is juxtaposed with his now less relevant, awkward, religious fervour and with his ugly misogyny.
Lilburne’s fight for the legal freedoms that we now take for granted was not a dry academic one. Rather it was an extraordinary battle fought, from prison and the pillory, in the Star Chamber and the court and from exile. And it was a fight with real life or death consequences. Lilburne believed in juries because they saved him from execution on at least two occasions.
Braddick tells the story of Lilburne’s struggles expertly, fluently and well. Lilburne’s life was truly action-packed but Braddick resists the temptation to sensationalise. His analysis of the emergence of the right to avoid self incrimination from Lilburne’s refusal to take the Star Chamber ‘oath ex officio’ is compelling.
In addition to the obvious and continued relevance of these subject matters, lawyers will like this book for other reasons.
Braddick writes in short sentences. His narrative has a flowing, examination-in-chief style. Much of the book is set in legal London. It brings the judicial and penal infrastructure of the time alive with revealing glimpses of its main institutions. The Fleet, for example, was a prison run by private owners who built houses for the inmates within the grounds and then let them out at commercial rates. As long as the inmates were up to date with their rent, the warders were forbidden to enter the homes and prisoners could live a relatively normal comfortable domestic existence. How different to today’s HMP Bedford!
Braddick concludes his political life of Lilburne by reminding us that we are all likely to be ‘in his debt’ and that ‘rather than rebuke him for his failings we should honour him for his courage’. That reminder is a good reason for those of us in the law to read this important book.