Imagine a court that could force you to incriminate yourself. It might go about its work like this: you are made to stand before a judge who refuses to give you any details about the charge laid against you. You are forced to take an oath before your God to answer truthfully any questions that might be put to you – questions on any topic at all. And you are warned that refusing to answer these questions for any reason will be viewed as contempt of court, for which you may be imprisoned, lashed or tortured as it please the judge. Welcome to what has been called the cruel trilemma. You have three options. You may lie (i.e. violate your oath and thereby sacrifice your soul), you may accept brutal punishment for your refusal to obey the court or, finally, you may incriminate yourself and suffer whatever may be in store for you as a result of a conviction.
This scenario was a feature of criminal procedure in England in the first half of the seventeenth century. The oath in question was the famous Star-Chamber Oath, also known as the Ex officio Oath, which was used especially in ecclesiastical courts for trying dissenting pastors for their illegal religious activities. The court counted on the power of an oath before God to manipulate its prisoners conscience and thereby coerce them into giving a truthful account of their illicit opinions and activities. Since these were pious men, the calculation generally held true. The practice came to an end only under the assault of one of the most important political agitators and pamphleteers of the era of the English Civil War, John Lilburne.
John Lilburne (1615-1657), or as he was sometimes called, Freeborn John, was one of the most troublesome men of his century. An opponent of the English crown, he would eventually become an opponent of Parliament as well. A staunch ally of Cromwell during the Civil War, he dropped Cromwell when he realized that his radical ambitions were not going to be fulfilled under the Commonwealth. His activism and outspoken opposition to authorities led him to spend most of his adult years either imprisoned or banished from England. Lilburne was a Leveller, part of a political movement that advanced popular sovereignty at the expense of the royal prerogative, religious liberty and equality under the law.
His fame arose as a result of circumstances surrounding his arrest and imprisonment in December of 1637 for disseminating literature that was not licensed by the Stationers’ Company. The Stationers’ Company was a body which held the monopoly over publishing in England and which regulated the book trade. It was empowered to enforce censorship by seizing books that were not licensed and by delivering their distributors to ecclesiastical courts for correction. Lilburne had fled to Holland in 1636 with a manuscript of the subversive Letanie of Dr. John Bastwicke, a treatise in which Lilburne’s friend and mentor, the Puritan John Bastwick, made the unsubtle point that the Bishops of the Church of England were the servants of Satan. Shortly afterward, printed copies of the work could be found circulating in London. Memory of his involvement with Bastwick lingered, so that when Lilburne returned to England in late 1638, he found himself promptly betrayed to the authorities by an agent of the Stationers’ Company. He was arrested and interrogated before the Star Chamber, ostensibly for any involvement he might have had in the production and distribution of Bastwick’s book. A record of the trial, penned by Lilburne himself, can be found in Howell’s State Trials (3 How. St. Tr. 1315 (1637)).
The court subjected Lilburne to the Ex officio oath, as was customary for crimes of this kind. Lilburne, however, refused to cooperate. In a long and defiant interview, he claimed that the Ex officio oath was illegal and that he could not understand how he could be bound to answer questions unrelated to his imprisonment. The court, he said, was fishing around for extra material with which to condemn him. “I am unwilling to answer any impertinent questions, for fear that with my answer, I may do myself hurt. This is not the way to get to Liberty.” He refused to participate in the court’s effort to build a case against him, agreeing only to relate directly to questions about whether or not he printed, imported or distributed prohibited books. He was happy to make statements affirming his innocence, but averred that he would respond to any question that seemed to broaden the inquiry by silence. He said, “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.” Lilburne’s argument depended in this trial on an appeal to the law of God, but in time, his critique of criminal procedure would develop into the contention that freedom from compulsory self-incrimination is one of the basic liberties of the English constitution, handed down from antiquity and enshrined in Magna Carta.
His performance at trial did not help his immediate cause. The court fined him for contempt in the amount of £500. He was sentenced to be whipped, pilloried and imprisoned. The lashing took place on April 18, 1638 along the way from Fleet Prison to Palace Yard. Lilburne was tied to the back of an oxcart and stripped to the waist, sometimes crawling and sometimes being dragged in the dust behind the cart as an executioner lashed him with a three-thonged whip as many as 200 times. On arriving in the palace yard, he was pilloried, but he would not surrender. He lectured the crowd that had gathered on the Christian view of physical suffering, on the subject’s right to refuse to incriminate himself and of course on his innocence. He was then gagged, after which he stamped his feet in protest until he was taken out of the pillories and imprisoned. Details of these events are recorded in Lilburne’s report in Howell’s Trials.
Lilburne would quickly produce pamphlets describing these experiences, including A Worke of the Beast (1638), driving home his contention that Englishmen are born with liberties, among these are the presumption of innocence and the freedom from coerced self-incrimination. Over the next three years, as English politics took a sharp turn toward Civil War, Parliament renewed its interest in Lilburne’s case, resolving to free him from imprisonment and to pay him reparations for what he had suffered. (3 How. St. Tr. 1315 (1637)) In 1641, the Star Chamber was abolished partly as response to the mistreatment of John Lilburne and other similar cases of excessive severity.
John Lilburne is chiefly remembered as one of the earliest English libertarians, but here and there his legacy emerges to remind us how a single day in April, 1638 can still inform constitutional developments centuries later and an ocean away from Fleet Street. Chief Justice Earl Warren was reflecting on those events when, writing for the majority in Miranda v. Arizona, 384 U.S. 436 (1966), he cited John Lilburne as the critical figure in the rise of the modern protection against self-incrimination.
We sometimes forget how long it has taken to establish the privilege against self-incrimination the critical historical event shedding light on its 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. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). 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.” Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944). Miranda v. Arizona, 384 U.S. 436, 459 (1966).
Magna Carta will celebrate its 800th birthday in 2015. Look for more news and blog posts on the heritage of English Liberties and Anglo-American Constitutionalism here on In Custodia Legis in the coming months.