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The history of the right not to be compelled to bear witness against oneself harks back to the days of religious persecution in 16th Century England. "In 1537, John Lambert was chained to a stake in Smithfield, England, and roasted in flames as an obdurate heretic. "In 1532, he had been summoned before an inquisition to inquire into the faithfulness of his religious beliefs. He was suspected of having become a convert to Protestantism and the questions directed at him were designed to expose his doctrinal convictions. In the words of Leonard Levy, in his exhaustive study of The Origins Of The Fifth Amendment,[ 2 ]
Lambert responded with all the candor of a zealot destined for martyrdom, but refused to answer the first article demanding to know whether he had ever before been suspected of heresy. His memory was uncertain, he claimed, but "though I did remember... yet were I more than twice a fool to show you thereof; for it is written in your own law, 'No man is bound to betray [or accuse] himself'."
Thus Lambert became the first person on record in England who objected to the inquisitorial procedure designed to trap heretics. He claimed that it was illegal to force a man to accuse himself. Despite the fact that Lambert intended only that he should not be compelled to reveal information about either unknown or unproved crimes (for he readily agreed to answer questions under oath if first properly accused by due process of law), Lambert perished in flames as a witness to his beliefs.[ 3 ]
Lambert may have been influenced by William Tyndale, the first translator of the New Testament from Greek into English, which was first printed in 1525 . Tyndale suffered a heretic's death in exile in 1536, but not before he had expressed his opposition to religious persecution. In 1528, in his book, The Obedience Of Christian Man,
there is a passage on tyrants breaking into the heart and consciences of men and compelling them to swear. ...Tyndale flatly asserted that a man should refuse an oath put to him by a judge to answer all that is demanded of him. He also protested the practice of 'Antichrist's disciples' in breaking into men's consciences by compelling them to forswear themselves 'or to testify against themselves.'[ 4 ]
Nearly at the same time that Lambert was asserting his right to not answer interrogatories, the common-law lawyer, Christopher St. Germain, was protesting the oath 'ex officio' or the inquisitorial procedure of the ecclesiastic courts.[ 5 ] This procedure was first adopted by the King's Council in the 13th Century in an effort to bypass the requirements of adversary procedures of law, which were then in the developmental stages. The Council and ecclesiastical courts used the oath 'ex officio' in both criminal and civil proceedings. Defendants were first required to take the oath and then were presented with a series of questions based on the prior examination of witnesses and informants. The defendant was not told the charges against him, and he was required to answer all questions. Contradictory answers were used against the defendant in an effort to break him down and force a confession of guilt. Nothing was more opposed to the spirit of the common law than to coerce a person into incriminating him or herself in this fashion.
The result of several centuries of inquisitorial procedures and the oath 'ex officio' in England was not to wear down men's consciences but rather incite them to speak out for the truth as they saw it. John Foxe's Book Of Martyrs, published in 1563, was the most famous of many works dealing with the cases of religious persecution of English Protestants. Foxe's book was second only to the Bible in popularity among the English during the 16th and 17th Centuries. It went through numerous editions and taught the Englishmen the unforgettable lessons of that history. People were hauled into court for the merest suspicion and required to answer on oath questions which were designed to trap them as religious heretics. The Book Of Martyrs taught people that resistance to unjust procedures was possible, even if it meant death. They demanded to know the identity of their accusers and what the accusations were against them. They disliked being forced to incriminate themselves or others. Every such confrontation between an honest believer and the churchmen ended in the Englishmen asserting what he believed to be his rights. Thus Foxe's book ended up being a libertarian primer "which taught the values of religious freedom and freedom of speech, and, too, certain procedural rights that clustered around the accusatory system of justice, such as proper accusation, fair trial, and the right to remain silent to incriminating questions."[ 6 ]
Foxe's book also epitomized for the early Englishmen the importance of bearing witness for the truth as one perceived it. Foxe noted that the word martyr in Greek meant "witness-bearer" and he was as ready to apply it to those who suffered death for their beliefs as to those who merely offered faithful witness and underwent no pain. He clearly understood the paradox of persecution, that the more a sect is cut down, the more it will persist. Persecution, especially of religious dissenters and conscientious objectors, was designed to deter people from embracing their cause. In many cases, however, such persecution was counterproductive because the suffering of the persecuted only evoked a widespread public sympathy. It only reinforced the belief of dying religious martyrs that "We shall this day light such a candle, by God's grace, in England, as ... shall never be put out."[ 7 ]
An example of both religious and political martyrdom in late 16th Century England occurred when John Udall, a Protestant minister and Hebrew scholar, was brought before the Star Chamber in an effort to determine if he was author of certain Martinist religious tracts. Udall admitted that he admired the books but refused to answer whether he was author or not. In responding to his accusers, Udall replied that "if I were the author, I think that by law I need not answer." Udall claimed a legal right against incriminating himself "at least in cases where the procedure did not comport with Magna Carta." Upon his refusal to take an oath that he would answer all questions, he was warned that "Then you must go to prison, and it will go hard with you, for you must remain there until you be glad to take it." To which he responded, "God's will be done! I had rather go to prison with a good conscience, than to be at liberty with an ill one."[ 8 ]
Udall was eventually indicted for seditious libel and tried before a common law jury. Udall never did admit to having authored the books but the court told his jury that his failure to clear himself by oath argued his guilt. He was guilty and had to prove himself innocent of the charges. All Udall could answer was that his prosecutors were bound to prove his guilt, not that he was bound to prove his innocence. Ultimately he was convicted, but not without becoming "probably the first defendant in a common-law trial who claimed a right against self-incrimination, at least in a capital case, even though he had been duly indicted." Udall was a flinty monument to conscience and was prepared to die for it. "When it looked as if there was nothing left but to hang him, a way out appeared. Some merchants who were leaving for Turkey offered to take him along as minister," but Udall refused to accept the government's condition that he never return to England without the Queen's permission. Eventually Udall died in prison, of ill health, in 1592.
The Star Chamber proceedings of the late 16th and early 17th Century only served to further entrench the Protestant opposition. Such stalwarts as Robert Beale, a common law and canon law lawyer, and Thomas Cartwright, a Puritan minister, carried on the fight against Star Chamber persecution. They were assisted by many lesser-known figures who began to tentatively rely on Magna Carta and the laws of conscience to found "what would become the right against compulsory self-incrimination." The obstinacy of these Puritan heretics completely swamped the Star Chamber and brought its authority into question and nearly stopped its proceedings. One further example of their stubborness will suffice. Levy writes that some of them, "were made of granite that nothing could erode. A haberdasher named George Collier, for example, had been in jail for five years without ever having been examined. In spite of the suffering he must have undergone all that time, when finally brought before the Commission, he refused to answer or conform."[ 9 ]
When the Star Chamber was finally abolished by the House of Commons in 1641, it was largely the result of its having collided with John Lilburne, one of the most famous libertarians of the 17th Century. From 1637, until his death 20 years later, Lilburne managed to defy the king, the parliament, and the protectorate with his libertarian principles.[ 10 ] Leonard Levy describes Lilburne in the following way:
While others supported civil liberties to gain their own freedom and denied it to their enemies, Lilburne grew more and more consistent in his devotion to the fundamentals of liberty, and he was an incandescent advocate. Standing trial for his life four times, he spent most of his adult years in prison and died in banishment. Yet he could easily have had positions of high preferment if he had thrown in his lot with Parliament or Cromwell. Instead, he sacrificed everything in order to be free to attack injustice from any source. He once accurately described himself as 'an honest true-bred, freeborn Englishman that never in his life loved a tyrant nor feared an oppressor.' In his own day he was known as Freeborn John because of his insistent references to the rights of every freeborn Englishman.
Such men as Lilburne who make civil disobedience a way of life are admirable but quite impossible. He was far too demanding and uncompromising, never yielding an inch of his ideals. He was obstreperous, fearless, indomitable, and cantankerous, one of the most flinty, contentious men who ever lived. As one of his contemporaries said, if John Lilburne were the last man in the world, John would fight with Lilburne, and Lilburne would fight with John. That trait helps explain his strength, but he was also a master of the arts of propaganda .... Lilburne, who was to become the leader of the Levellers, was the catalytic agent in the history of the right against self-incrimination. He appeared at the right moment in history.
John Lilburne's first brush with the law was an accusation that he shipped seditious books into England from Holland in 1637. He was committed to prison by the Star Chamber, after two of his confederates accused him in order to save themselves. All that was needed to complete his conviction was his own confession. Lilburne denied the charge and also refused to answer questions, which were in his opinion not germane to his innocence or guilt. After several appearances before the Star Chamber, in which he repeatedly refused to swear their oath 'ex officio', Lilburne was found guilty of contempt for refusal to answer interrogatories under oath. "'I was condemned," wrote Lilburne, "because I would not accuse myself". The court sentenced [him] to a five-hundred pound fine, punishment in the pillory, and imprisonment until [he] conformed by taking the oath. In addition, Lilburne was to be whipped through the streets on the way from Fleet prison to the pillory.[ 11 ]
When the sentence was carried out on April 18, 1638, Lilburne attained an immediate notoriety. Whipped over 200 times on the two-mile walk to the pillory, his spirited defiance made him nearly famous overnight. Lilburne even harangued the "multitudes" from the pillory, arguing that Star Chamber oath was expressly against both the Petition of Right and the law of God, "for that law requires no man to accuse himself...." He suffered further punishment for his behavior and ultimately ended up spending nearly three years in jail "for the sake of conscience because he would not accuse himself." He was placed in solitary confinement for four months and then in the worst part of the prison, but he could not be silenced, writing some nine pamphlets during the time he spent in prison. Lilburne claimed the freedom to speak the truth as he saw it, as might command itself "to every man's conscience in the sight of God". Having been in the pillory once, he expected to be there again; then "by the might and strength of my God, I will, come life, come death, speak my mind freely and courageously."[ 12 ]
One of the immediate topics of concern, when the Long Parliament met in November, 1640, was freeing the victims of Star Chamber oppression, which included John Lilburne. By the end of the month Lilburne, along with other noted prisoners, was set free. However it was not until April, 1641, that the House of Commons proposed legislation to abolish the Star Chamber altogether. In May, the House voted that Lilburne's imprisonment was "illegal and against the liberty of the subject" and ordered reparation. When Charles I finally accepted the bills abolishing the Star Chamber and High Commission in July, 1641, it was only a victory against the ecclesiastical courts. The right against compulsory incrimination was only recognized in the religious courts, not in the common-law courts. Although the common law had always regarded torture as illegal when its purpose was to extort confessions, and had long accepted the abstract principle that no man should be forced to accuse himself, there was not yet a solid recognition of the fact that a refusal to answer an incriminating question carried no implication of guilt. The presumption of innocence in common law proceedings had no real existence at that time. It was one of Lilburne's great feats to establish this presumption of innocence even while remaining silent.[ 13 ]
After his release from prison in 1641, Lilburne had taken a great interest in public affairs. "His pen and persecution had brought him fame, and he was honored for both."[ 14 ] He participated in the civil war on the side of the parliamentary forces and was captured by the royalists. He was tried for treason and sentenced to death, but was freed in a prisoner exchange. He knew Cromwell well but became more and more dissatisfied with the progress of the parliamentary cause. It was at this time that he associated himself with his friends, Richard Overton and William Walwyn, all of whom became recognized as leaders of the Levellers, the radical libertarians of that era.[ 15 ]
In June, 1645, Lilburne was arrested by the House of Commons on charges of having libelled its speaker. He decided to challenge the authority of the House of Commons to investigate his political opinions by refusing to answer their interrogatories. "Such behavior was unprecedented, but Lilburne saw in his case an issue that concerned the rights of every subject."[ 16 ] He was convinced that the investigating committee of the House of Commons was acting illegally and he simply refused to answer any questions about himself. "Taking the offensive, he demanded to know the charges against him. His strategy was to demand common-law procedures from a legislative investigating committee, but the Committee scarcely felt itself bound by court-room requirements." Before the Committee, Lilburne claimed "a right to all the privileges that do belong to a free man as the greatest man in England... and the ground and foundation of my freedom I build upon the Great Charter of England." When the Committee was finally convinced that he would not testify they sent him to jail.
Although the Commons freed Lilburne in October, 1645, at the urging of Cromwell, he had not successfully established the right of remaining silent before a House committee. What he had tried to do was to get the House of Commons to recognize the right against self-incrimination, just as the ecclesiastic courts had come to accept it. In view of the fact that the House committee had just as much tyrannical authority to arrest, try and convict him as the former Star Chamber did, it is not surprising that Lilburne opposed the one as much as the other. "He claimed that the proceedings against him violated the act abolishing the Star Chamber, for its outlawed practices were not to be exercised by any other authority. In the Petition of Right which, he said, also bound Parliament, the true meaning of Magna Carta had been laid bare, because 'amongst other things there expressed, it is declared to be contrary to law, to imprison a man without cause showed or expressed, and also that it is contrary to Law, to force a man to answer to Questions concerning himself, or for refusal, to commit him to prison.' By alleging a right not to be asked questions concerning himself, he enlarged considerably the claim to a right which he did so much to establish." According to Leonard Levy, Lilburne became so obsessed with
the idea that no man should be forced to incriminate himself, that Lilburne believed that no one should be bound by law to answer to an indictment by pleading 'guilty' or 'not guilty.' Questions to make him plead put him to 'a criminal Interrogatory, concerning a man's self.' It was a great snare to a conscientious man who could not lie, he argued. If he had committed the deed, he dared not plead 'not guilty' for fear of lying, yet he destroyed himself contrary to the law of nature by pleading guilty to that which his adversaries might not be able to prove against him. ...The only course for a free man, he advised, was silence: let his adversaries state the charge against him and prove it to his face by witnesses. ...Hence, concluded Lilburne, justice demanded that Parliament not condemn a man for his refusal to reply to questions against himself.[ 17 ]
In March, 1646, the printer of many of Lilburne's pamphlets was arrested and soon thereafter Lilburne followed for having breached the privileges of Parliament by his criticism of a member of the House of Lords. When summoned for examination, he refused to answer questions and was placed in jail by order of the House of Lords. He challenged their jurisdiction by barricading himself in his cell and refusing to appear before them. He literally had to be dragged before the bar of the House. He refused to kneel on his second appearance before them and was placed in solitary confinement for several weeks for his contemptuous behavior, but his spirit could not be broken. On his third appearance before the Lords, he continued to "refuse to kneel and protested the proceedings. When the charges against him were read aloud, he stopped up his ears with his fingers. The Lords retaliated by sentencing him to a fine of two thousand pounds and indefinite imprisonment in the Tower of London; ...." Overton and Overton's family soon joined Lilburne in jail for their failure to answer the Lords' Committee on Examinations, and in early 1647, even Lilburne's wife was taken into custody.[ 18 ]
The spring of 1647 found Leveller agitation at its greatest summit, even though many of its leaders were imprisoned. "The Humble Petition of Many Thousands", which was addressed to the House of Commons, contained many Leveller proposals, which show how radical their ideas were for that time. This was one of the earliest political documents in the history of the English speaking world which embraced the right not to be compelled to be a witness against oneself. It recommended that Commons should permit "no authority whatsoever, to compel any person or persons to answer to questions against themselves"; it called for the abolition of all religious tithes and enforced maintenances and that "all Ministers may be paid only by those who voluntarily choose them and contract with them for their labours," and that all political prisoners (those who were in prison for their refusal to answer Parliamentary interrogatories) be freed. Other Leveller proposals included freedom of religion and press, no judgment touching life or liberty without trial by jury, no military conscription of conscientious objectors, abolition of capital punishment except for murder, and abolition of imprisonment for debt. "This was the context of the insistent Leveller demand for a right against self-incrimination."[ 19 ]
By August, 1648, when Lilburne and Overton were released from prison, they had become highly critical of Cromwell's Council of State. If Cromwell had the power to imprison his opponents for refusing to answer interrogatories about themselves, then they had gained nothing. They realized that the surest defense of political freedom of expression was "that no authority had the lawful power to address incriminating" questions to its political adversaries. If Cromwell had that power, then having rid themselves of the king was only playing a farcical game of musical chairs. One kind of oppression had been simply exchanged for another.[ 20 ]
Thus it came as no surprise when Cromwell arrested the four leading Leveller leaders on March 28,1649. Lilburne's house was surrounded and he was taken prisoner, while at the same time other troops captured Overton, Walwyn, and Thomas Prince. The four were brought before the Council of State to be questioned about the authorship of several Leveller books. Ironically, the presiding officer of the Council, John Bradshaw, had been Lilburne's counsel when he petitioned the House of Lords to vacate his Star Chamber sentence in 1645. "On that occasion Bradshaw had condemned the Star Chamber sentence because it had been grounded on Lilburne's refusal to take the oath 'ex officio', 'it being contrary,' Bradshaw said, 'to the laws of God, nature, and the kingdom, for any man to be his own accuser'."[ 21 ]
Lilburne refused to "commit so 'un-Englishman-like' a deed" as to answer any of the questions Bradshaw posed, although Bradshaw claimed "that they were not trying him, only seeking information for his trial."[ 22 ] All four prisoners refused to acknowledge the jurisdiction of the Council of State and Walwyn, Prince, and Overton all refused to answer the interrogatories directed at them. Cromwell fully understood that he was in a political predicament; for Lilburne's popularity with the Levellers was threatening his own power. In an effort to suppress Lilburne, Cromwell tried him before a special tribunal in October, 1649. The charges against him were having committed acts of high treason against the government.
Lilburne's trial offered a chance for Cromwell to "prove before the bar of public opinion that" his government was lawfully constituted and just. At the same time, however, it offered Lilburne an opportunity to expound on what he construed to be the fundamentals of fair criminal procedure. "He placed the right against self-incrimination in the context of what he called 'fair play', 'fair trial', 'the due process of law', and 'the good old laws of England'." His strategy was to challenge the court on every technical point and to compare its proceedings to those of the abolished Star Chamber.
After numerous attempts to get on with the proceedings, Lilburne finally allowed the indictment against him to be read. He was then asked to plead "guilty" or "not guilty" and like his earlier position several years before, Lilburne refused to plead one way or the other. By the laws of England, he urged "I am not bound to answer to questions against or concerning myself." His judges tried to explain that by pleading he would not be accusing himself of anything, but Lilburne persisted in maintaining that by the Petition of Right he did not have to answer any questions concerning himself. Finally after much bickering with his judges, Lilburne obtained a copy of the indictment in English and proceeded to plead not guilty.[ 23 ]
Lilburne demanded nearly every legal right which is now afforded a defendant by due process of law: the right to counsel, time to consult with him, the right to subpoena witnesses in his favor, the presumption of innocence, and trial by jury. He consistently refused to answer any questions concerning himself. He refused to look at a document, which was alleged to have been written by his own hand. "The court urged him to answer whether the handwriting was his, but he retorted that the judges were ignorant of the law on his rights." His formal defense was that the prosecution had not proved his authorship of the book in question and had not offered two independent witnesses to any acts of treason which he might have committed. Lilburne appealed to the members of his jury, knowing that they, even more than the judges, held his life in their hands. When the jury finally returned their verdict after an hour of deliberation, they acquitted him. Public opinion was ecstatic with Lilburne's acquittal and he and his companions were soon released from jail in November, 1649.
Lilburne's popularity had made him a marked man. At the close of 1651, he was summoned before the House of Commons to answer for his having assaulted the reputation of one its members. He was summarily convicted of breaching the privileges of a member of the House, fined seven thousand pounds, banished from England for life, and sentenced to death should he ever choose to return. He was helpless to protest this "Star-Chamber like" proceeding and fled to Holland to escape the death penalty that attached to his remaining in England longer than 20 days.
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[ 2 ] Leonard W. Levy, The Origins of the Fifth Amendment, New York Oxford University Press, 1968, p. viii Levy's work is the most outstanding discussion of this right and furnishes the basis for much of this essay. On the Fifth Amendment, generally see Mark Berger, Taking the Fifth: The Supreme Court and the Privilege Against Self-incrimination. Lexington: Lexington Books, 1980. However, this is not a very helpful book from a libertarian perspective. There are many law review articles on this subject. See especially John Wigmore, "Nemo Tenetur Seipsum Prodere," 5 Harvard Law Review (1891-1892) pp. 71-88, and his later "The Privilege Against Self-incrimination; Its History," 15 Harvard Law Review (1901-1902) pp. 610-637.
[ 3 ] Levy, op. cit., pp. 3 and 62.
[ 4 ] Ibid, p. 63.
[ 5 ] Ibid, p. 51.
[ 6 ] Ibid, pp. 81-82. Levy cites William Haller, The Elect Nation, the Meaning and Relevance of Foxe's Book of Martyrs, New York 1963.
[ 7 ] Warren W. Wooden, John Foxe, Boston Twyane Publishers, 1983, pp. 30, 32, and 43.
[ 8 ] Levy, op. cit., p. 166. Generally for the discussion of Udall see ibid, pp. 164-170.
[ 9 ] Ibid, pp. 178, 181, and 190.
[ 10 ] Ibid, pp. 272-273.
[ 11 ] Ibid, pp. 275-278.
[ 12 ] Gerald Cragg, Freedom and Authority, Philadelphia. The Westminister Press, 1975, p. 296.
[ 13 ] Levy, op. cit., pp. 282-283.
[ 14 ] Ibid, p. 285.
[ 15 ] For more information on Richard Overton and the Levellers generally, see Carl Watner, "'Come What Come Will!' Richard Overton, Libertarian Leveller, "IV Journal of Libertarian Studies (Fall 1980), pp. 405-432.
[ 16 ] Levy, op. cit., pp. 288-291.
[ 17 ] Ibid, pp 290 291.
[ 18 ] Ibid, pp. 292-296.
[ 19 ] Ibid, p. 296. For commentary and text of "The Humble Petition of Many Thousands" see William Haller (ed), Tracts on Liberty in the Puritan Revolution 1638-1647, Vol. III, New York: Columbia University Press, 1934. pp. 399-405 and 403 and 404.
[ 20 ] Levy, op. cit., pp. 296-298.
[ 21 ] Ibid, p. 299.
[ 22 ] Ibid.
[ 23 ] Ibid., pp. 301-309. Citing Lilburne's reference to the Petition of Right (1628) as justification for his right to remain silent, Levy calls this "a familiar but stained Leveller interpretation of that great document which none of the judges corrected "Ibid, p. 304.
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