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The Right of Silence Review The Right of Silence Neill H. Alford, Jr.t Origins of the Fifth Amendment: The Right Against Self-Incrimina. tion. By Leonard W. Levy. New York: Oxford University Press, 1968. Pp. xii, 561. $12.50. "Freeborn" John Lilburne defied his first "establishment" at the age of seventeen. He sued Hewson, the master to whom he was appren- ticed, before the Lord Chamberlain of London for showering abuse upon him. During the stormy years which followed, Lilburne tilted with the Star Chamber, committees of the House of Commons, the Council of State and Cromwell's judicial commissioners. He wore himself out by his determined opposition to those in power at the comparatively early age of forty-three. Had this not occurred, Lil- burne certainly would have made Charles II a "gloomy" rather than a "merry" monarch. Perhaps he would have ended his days, not in prison at Dover, but banished to Massachusetts, where those who of- fended Charles were likely to be sent. There he unquestionably would have contributed to the already considerable discomforts of the Pil- grim Fathers. When, in 1637, Lilburne was arrested at the age of twenty-three by pursuivants of the Stationers' Company and tried before the Star Chamber for shipping seditious books from Holland to England, he stoutly refused to take the ex officio oath on the ground he should not be made to accuse himself. The Court of Star Chamber consisted of the judicial members of the Privy Council. At the time Lilburne was brought before it, the Court had a reputation for fairness in proce- dure and speed in decision-making that attracted many litigants to it from the common law courts. In criminal cases over which it had ju- risdiction-these being for the most part cases under special statutes t Doherty Professor of Law, University of Virginia. B.A. 1940, The Citadel; LL.J, 1947, University of Virginia; J.S.D. 1966, Yale University. 1618 Review or cases which could not be tried satisfactorily by the common law juries-the Court also enjoyed a reputation for diligence in proce- dure, soundness of decision and restraint in punishment. In the regular Star Chamber criminal procedure, the defendant was informed of the charges against him and was permitted to reply by counsel. He was then required to swear the ex officio oath that he would tell the truth to questions put to him. He was interrogated in private. While he could offer witnesses in his behalf, these also were examined privately under oath. When the evidence was taken, there was a public trial without a jury, the defendant again being entitled to counsel. The Star Chamber nevertheless tried some cases in summary fash- ion. The details of these summary procedures varied, but were de- scribed generally as procedures ore tenus and could be initiated only by the Attorney General. Cases tried ore tenus seemed to be those in which the defendant admitted all of the facts or cases in which some matter of state security was involved. Lilburne had been examined by the Attorney General before being sent to the Star Chamber but had not made a full confession. Nor did his case involve any major matter of state security. Nevertheless, the Attorney General had not provided Lilburne with a bill of complaint setting forth the charges. When the Court sought to put him to the oath, he would have none of it. The procedure was that of the Court of High Commission, an institution which Puritans of Lilburne's day saw not as a court but as an instrument for suppressing dissent. By the ex officio oath as used in the Court of High Commission, the defendant was always sworn before knowing the charges against him and his accusers. If the defendant took the oath, the High Commission would then proceed to question him, perhaps disclosing grounds of prosecution not previously known to the Court or, a matter usually more important, disclosing the persons with whom the defendant con- spired or acted. The facts developed by the High Commission might be used as the basis for an indictment and a trial at common law or as a basis for an information in the Star Chamber. Sometimes the matter was one which the High Commission itself could try. If the defendant refused the oath in the High Commission, he could be placed in jail for contempt. Alternatively, in Lilburne's time, the Court might find the defendant guilty pro confesso, on an inference of guilt arising from his failure to swear. The Star Chamber followed a similar procedure if the defendant balked, and for Lilbume's con- tempt fined him, sentenced him to be whipped, placed in the pillory 1619 The Yale Law Journal Vol. 79: 1618, 1970 and returned to jail until he purged himself. The Court might, at this time, have had him branded or his ears cropped, but even if he had been found guilty, could not have sentenced him to loss of life or limb. The High Commission, by contrast, could pass a capital sentence in an appropriate case within its jurisdiction. Tied to a cart and whipped during an ordeal of two miles from the Fleet prison to Westminster, Lilburne there had his neck thrust into the yoke of the pillory. Uncowed, he delivered a fiery speech to the onlookers, condemning the ex officio oath and those who required it. Sensing the impact of Lilburne's inflammatory words upon the crowd, a royal officer had him gagged; but not to be suppressed, Lilburne threw pamphlets to his audience, and, when the supply of these was exhausted, stamped his feet to show his defiance. Returned to the Fleet to remain until he took the oath, Lilburne shrewdly passed his time in writing. Manuscripts detailing the injus- tices visited upon him and condemning the ex officio oath flew from his cell like bats from a cave. Smuggled to Holland and published there, Lilburne's writings were returned to England to be read by a growing army of supporters. "Freeborn" John Lilburne attracted the attention of Englishmen to his problems with the Star Chamber at a time when the English were discarding feudalism and its legal trappings as the basis for internal order. The English House of Commons and the common law courts had assumed an anti-feudal stance, although both had stemmed indi- rectly from feudal roots. The prerogative courts, more recent develop- ments from the King's Council, tended to reflect antiquated feudal ideas of kingship. Lilburne and his dissenting associates marshalled major public support for their position and were able to force a royal government, with a basis of power already much eroded, to surrender a number of its important institutions. The ex officio oath and the two courts which used it in matters of crime and ill-fame, the High Com- mission and Star Chamber, were abolished by the Parliament in 1641. The destruction of legal institutions reflected a broad political con- flict in which people and careers also were destroyed. Strafford, the chief minister of Charles I, was hurried to the block in 1641 by an act of attainder-voted to death by a legislative body. Archbishop Laud, the guiding spirit of the High Commission and Star Chamber, shortly placed his neck on the same block. Their master, Charles I, met the same fate in 1649, condemned to death without being permitted to make a statement in his own defense. Thus, very harshly, the royal establishment was extirpated. 1620 Review Lilburne continued his stormy course in the Commonwealth of Oli- ver Cromwell. Although the ex officio oath was gone, he asserted his right against self-incrimination before committees of the House of Commons. Jailed for breaching the privileges of Parliament, he was more trouble in jail than out. His numerous tracts and pamphlets were a constant threat to the order of the Commonwealth. Tried for high treason in 1649, he successfully asserted his right against compul- sory self-incrimination before an Extraordinary Commission of Oyer and Terminer consisting of many of the legal notables of the day. Ac- quitted by the jury, but his legal troubles by no means at an end, he had, by the end of his life, brought the right against self-incrimination from its status as a defense to the oath ex officio in the prerogative courts to an accepted principle in common law criminal procedure. When Lilburne died in 1657, a year before the death of Cromwell, he could look back on a path strewn with the ruins of courts, proce- dures, people, and, indeed, of a social fabric. This is not surprising in view of the ability and persuasiveness of this combative dissenter. If he could have looked from his prison at Dover in 1657, he would have observed the dismal tyranny of Cromwell's major generals, certainly not a welcome sight for a man who revelled in dissent. Yet many prin- ciples associated with the freedom of individuals spring from the dy- ing gasps of political systems and, as Professor Levy writes: Lilburne had made the difference. From his time on, the right against self-incrimination was an established, respected rule of the common law, or more broadly, of English law generally.' Had Professor Levy confined himself to a description of Lilburne and his times, he would have had a difficult enough task. But not con- tent with this, Professor Levy, who is Earl Warren Professor of Con- stitutional History at Brandeis University, traces the development of the principle against compulsory self-incrimination from its amor- phous thirteenth-century beginnings to its inclusion in the Fifth Amendment to the Federal Constitution.
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