The ex officio oath developed in the first half of the 17th century (1600 to 1650), and was used as a form of coercion, persecution,[1] and forcible self-incrimination in the religious trials of that era. It took the form of a religious oath made by the accused prior to questioning by the Star Chamber, to answer truthfully all questions that might be asked. It gave rise to what became known as the cruel trilemma[2] where the accused would find themselves trapped between a breach of religious oath (taken extremely seriously in that era, a mortal sin,[2] and perjury), contempt of court for silence, or self-incrimination. The name derives from the questioner putting the accused on oath ex officio, meaning by virtue of his office or position.

Outcry against this practice (particularly in the trials of John Lilburne ("Freeborn John") around 1630–1649) led to the establishment of the right to not incriminate oneself in common law. This was the direct precursor of similar rights in modern law, including the right to silence and non-self-incrimination in the Fifth Amendment to the United States Constitution. The right itself appears as item 16 in the Levellers Agreement of the Free People of England (1649)[3] and first appeared in US law in the Massachusetts Body of Liberties and the Connecticut Code of the same era. The Star Chamber itself, as a judicial body, was abolished by Parliament as part of the Habeas Corpus Act 1640.

Early history

According to scholars of the common law the right against self-incrimination begins with opposition to punishments and penalties imposed for refusing to answer ecclesiastical judges under oath without formal charges being made. Noting inconsistences in cases reported by Edward Coke and James Dyer, E.M. Morgan wrote:[4]

All that can be safely asserted is that the common lawyers both in the second half of the 13th and all of the 14th century and under Henry VIII and Elizabeth resisted the inquisatiorial procedure of the spiritual courts, whether Romish or English, and under Elizabeth began to base their opposition chiefly upon the principle that a person could not be compelled to furnish under oath answers to charges which had not been formally made and disclosed to him, except in causes testamentary and matrimoinal.

The right later takes on a different meaning: based on the text of the Fifth Amendment, an accused person facing formal charges is not required to be a witness against themselves in Court. John Wigmore and Mary Hume Macguire[5] considered the jurisidictional conflict between common law and the ecclesiastical oath ex officio the starting point for the privilege against self-incrimination. According to Mary Hume Maguire:

We read a series of petitions from the Commons to the Crown referring to the distasteful practice of ecclesiastical courts of proving the case against the defendant by "fishing interrogatories viva voce"

A 14th century statute called Articuli Cleri described some rights of ecclesiastical courts to operate freely, and the later Prohibitio formata de statuto Articuli cleri, also during the reign of Edward II, specified the exclusive jurisdiction of the King's Courts.[4] In Origins of the Fifth Amendment Leonard Levy wrote that the latter statute banned self-incriminating oaths. According to Henry Ansgar Kelly the statute was only a restriction of the scope of eccleasiastical courts to matrimonial and testamentary cases, with oaths still permitted within that limited scope of cases.[6] Wigmore also said the oath was still permitted by the statute:[7]

"There is no reason whatever to believe that the statute De Articulis Cleri had among its motives any animus against the church's imposition of an oath as such."

According to the Chronica Majora, after an outcry from the people against the inquisitions of bishop Robert Grosseteste, the king wrote to his sheriff instructing that no laymen should be compelled to answer under oath before the Bishop, except in cases of matrimony or testaments. The bishop accused the king of conspiracy comparing his "audacious" behavior to events in France.[4]

The Church continued to oppose statutory limitations on its jurisdiction over heresy. The Suppression of Heresy Act 1400 targeting Lollardy authorized arrests and imprisonment, with cooperation between secular and ecclesiastical courts in the prosecution of heretics continuing for over a century, and including burning at the stake carried out by secular authorities when heretics refused to abjure heretical opinions as required by the laws of the church.[4]

Opposition to the oath grew until the reign of Henry VII when heresy was limited by statute to specified forbidden opinions.[8] This was repealed by Mary, until an Elizabethan statute placed ecclesiastical offices in Crown jurisdiction.[9] Several cases were reported by Coke regarding persons imprisoned by the ecclesiastical judges of the High Commission for refusal to answer them under oath. According to Coke the Common Bench released them according to habeas corpus.[4]

Privilege against self-incrimination

Early examples of a codified right appears in the Levellers manifesto Agreement of the Free People of England (published 1 May 1649): "[I]t shall not be in the power of any Representative, to punish, or cause to be punished, any person or persons for refusing to answer questions against themselves in Criminall cases".[3]

The right first appeared in US law in the Massachusetts Body of Liberties and the Connecticut Code of the same era.

The United States Supreme Court summarized the events of the time as part of the historical background in the landmark case Miranda v. Arizona:

Perhaps the critical historical event shedding light on its [i.e., the privilege against self-incrimination] origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. He resisted the oath and declaimed the proceedings, stating: "Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so." On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights.[10]

See also

References

  1. ↑ Fellman, David (1979). Defendants Rights Today. University of Wisconsin Press. pp. 304–306. ISBN 978-0-299-07204-9.
  2. 1 2 Rubenfeld, Jed (2005). Revolution by Judiciary: the structure of American constitutional law. Harvard University Press. pp. 33–35. ISBN 978-0-674-01715-3.
  3. 1 2 John Lilburne; et al. (1 May 1649). An Agreement of the Free People of England.
  4. 1 2 3 4 5 Morgan, E. M. "The Privilege against Self-Incrimination". Minnesota Law Review.
  5. ↑ See Essays in history and political theory in honor of Charles Howard McIlwain, 1967
  6. ↑ Kelly, Henry Ansgar (2023). Criminal-Inquisitorial Trials in English Church Trials: From the Middle Ages to the Reformation. Catholic University of America Press. pp. 35–36.
  7. ↑ Wigmore JH. A Treatise on the System of Evidence in Trials at Common Law Including the Statutes and Judicial Decisions of All Jurisdictions of the United States. Boston: Little Brown and Company; 1904
  8. ↑ An Act abolishing diversity in opinions
  9. ↑ See Coke's report of Caudry's Case claiming the statute restored ancient law but did not introduce new law
  10. ↑ Text of the Miranda v. Arizona decision
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