Ex officio oath
Encyclopedia
The ex-officio oath was an English judicial and ecclesiastical weapon developed in the first half of the seventeenth century, and used as a form of coercion, persecution, 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
" where the accused would find themselves trapped between a breach of religious oath (taken extremely seriously in that era, a mortal sin
, 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) 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
.
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",
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
:
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
in the religious trials of that era. It took the form of a religious oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
made by the accused prior to questioning by the Star Chamber
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
, to answer truthfully all questions that might be asked. It gave rise to what became known as the "cruel trilemma
Trilemma
A trilemma is a difficult choice from three options, each of which is unacceptable or unfavourable.There are two logically equivalent ways in which to express a trilemma: it can be expressed as a choice among three unfavourable options, one of which must be chosen, or as a choice among three...
" where the accused would find themselves trapped between a breach of religious oath (taken extremely seriously in that era, a mortal sin
Mortal sin
Mortal sins are in the theology of some, but not all Christian denominations wrongful acts that condemn a person to Hell after death. These sins are considered "mortal" because they constitute a rupture in a person's link to God's saving grace: the person's soul becomes "dead", not merely weakened...
, and perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
), contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
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
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...
("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
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
in modern law, including the right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
and non-self-incrimination in the Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. The right itself appears as item 16 in the Levellers
Levellers
The Levellers were a political movement during the English Civil Wars which emphasised popular sovereignty, extended suffrage, equality before the law, and religious tolerance, all of which were expressed in the manifesto "Agreement of the People". They came to prominence at the end of the First...
Agreement of the Free People of England
Agreement of the People
An Agreement of the People was a series of manifestos, published between 1647 and 1649, for constitutional changes to the English state. Several versions of the Agreement were published, each adapted to address not only broad concerns but also specific issues during the fast changing...
(1649) and first appeared in US law in the Massachusetts Body of Liberties
Massachusetts Body of Liberties
The Massachusetts Body of Liberties was the first legal code established by European colonists in New England. Compiled by the Puritan minister Nathaniel Ward, the laws were established by the Massachusetts General Court in 1641...
and the Connecticut Code of the same era. The Star Chamber itself, as a judicial body, was abolished by Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
as part of the Habeas Corpus Act 1640
Habeas Corpus Act 1640
The Habeas Corpus Act 1640 is an Act of the Parliament of England with the long title "An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber." The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas...
.
Right of non self-incrimination
Early examples of a codified right appears in the LevellersLevellers
The Levellers were a political movement during the English Civil Wars which emphasised popular sovereignty, extended suffrage, equality before the law, and religious tolerance, all of which were expressed in the manifesto "Agreement of the People". They came to prominence at the end of the First...
manifesto Agreement of the Free People of England
Agreement of the People
An Agreement of the People was a series of manifestos, published between 1647 and 1649, for constitutional changes to the English state. Several versions of the Agreement were published, each adapted to address not only broad concerns but also specific issues during the fast changing...
(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",
The right first appeared in US law in the Massachusetts Body of Liberties
Massachusetts Body of Liberties
The Massachusetts Body of Liberties was the first legal code established by European colonists in New England. Compiled by the Puritan minister Nathaniel Ward, the laws were established by the Massachusetts General Court in 1641...
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
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
:
- Perhaps the critical historical event shedding light on its [ie, 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.
See also
- Ecclesiastical law
- InquisitionInquisitionThe Inquisition, Inquisitio Haereticae Pravitatis , was the "fight against heretics" by several institutions within the justice-system of the Roman Catholic Church. It started in the 12th century, with the introduction of torture in the persecution of heresy...
- History of human rightsHistory of human rightsThe idea of human rights, that is the notion that anyone has a set of inviolable rights simply on grounds of being human regardless of legal status, origin or conviction for crimes, emerges as an idea of Humanism in the Early Modern period and becomes a position in the 18th century Age of...
- Right to silence in England and WalesRight to silence in England and WalesThe right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination...
- Hale CommissionHale CommissionThe Hale Commission was a Commission established by the Commonwealth of England on 30 January 1652 and led by Sir Matthew Hale to investigate law reform...