SILENCE: The Ultimate Protector of Individual Rights Share This:



The Ultimate Protector of Individual Rights

by Carl Watner



INTRODUCTION



Rational logic condemns the initiation of force against peaceful people. Furthermore, rational logic holds that the State is inherently and necessarily an invasive institution, whose employees must eventually initiate aggression. A government whose employees were not prepared to use force would soon cease being a government because people would have the option of whether to support it or not Faced with the loss of patronage and/or financial support, the State would have only two choices: either coerce people into paying up or restrict its services to those who voluntarily agreed to deal with it. Both history and theory tell us that this never has and probably never will occur. Government employees are the only group of people in society who regularly and routinely use physical force or its threat to collect funds to sustain themselves. To the conscientious rational thinker it makes no difference how government employees spend the money they coercively collect. What does matter is the invasive nature of the taxation process; that it relies on coercion. The very fact that government employees must resort to force proves that their services are unwanted.



Thus when a person sets out to offer witness to their conscientiously held beliefs against irrational regulations, conscription, taxation, and other aspects of government, it is inevitable that, at some point, the government will initiate aggression against him or her.(1) Thus,the only conscientious way to withdraw one's sanction from the system is by a peaceful but total refusal to cooperate. Eventually government agents must confront the non-cooperator and demand cooperation. At that point, non-cooperation means standing silent before one's accusers, offering the government no information about one's private self and refusing to take any positive actions which could be construed as participation in an invasive system. Other than stating one's conscientious convictions, elaborating one' s view would do nothing. In a word, one would remain silent and refuse to offer testimony (i.e., bear witness) against oneself. Effectively such a procedure would place the burden of proof on the government to prove that one owed them any duty to cooperate and place them in a position of having to initiate aggression in an attempt to force one to cooperate. The government would be left with two alternatives if they could not coerce cooperation: to either wrongly imprison an innocent person or to cease their harassment altogether.



The right not to be compelled to be a witness against oneself has a long and rich history. Although it is commonly referred to as the privilege or right against self-incrimination, our fore bearers commonly discussed it in terms of the right of a person not to be a witness against himself, or of a right of silence, or of the right against self-accusation. History exalts this right because it gained acceptance long before a whole host of other freedoms and procedural rights. It preceded the freedoms of speech, press, and religion and is older than the immunities against bills of attainder, ex post facto laws, and unreasonable searches and seizures.(2)



The purpose of this document is twofold. The first is to examine, historically, how and in what situations individuals have asserted the right to remain silent The second is to determine why the right of silence is such an important right, why its manifestation is an important part of the self-ownership principle. Self-ownership includes the right not to expose oneself to the loss of life or property by self-accusation. Knowledge of the history and significance of this right will enhance respect for those who have and those who continue to bear witness for silence.



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 OJ The Fifth Amendment,



“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.!S) 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 up 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 trail, 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 no!. 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 stubbornness 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', Lilbume 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 libeled 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 the 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 compell any person or persons to answer to questions against themselves," it called for the abolition of all religious tithes and enforced maintainences 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 Lilbume 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. Lilbume'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 Lilbume'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 Lilbume'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 thaf' 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 oflaw', 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 with 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 165 1 , 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-Chamberlike" proceeding and fled to Holland to escape the death penalty that attached to his remaining in England longer than 20 days.



Thinking that the political situation had changed sufficiently to allow him to emigrate back to England, Lilburne returned to England after Cromwell had dissolved the Rump Parliament He was arrested in June 1653, and again placed on trial for his life by the Council of State. Lilburne's strategy was to place the government on trial, too. He reasoned that the indictment of 1651 had been passed by an illegal parliament, since Cromwell had chosen to disband it On the other hand, if the bill of attainder passed by the now non-existent parliament was valid, then clearly Cromwell's act of dissolution had been a usurpation, "rendering illegal the very government that was prosecuting him."(24)



Lilburne, as usual, was full of legal objections and technicalities, but was afforded nearly every benefit of common-law procedure. He was successful in wresting a copy of his indictment from the court and obtained the assistance of counsel in challenging it As usual, he would admit nothing about himself in court, not even that he was the John Lilburne referred to in act of banishment. He "played his role as Freeborn John with gusto and drama, appealing once and again to the jury to stand fast for English liberties. If he died on Monday, he told them, on Tuesday Parliament might pass sentence on every one of them and their families, all of London, and eventually all of England." His acquittal was greeted with "joy and acclamation" by the spectators and troops stationed in the court. Cromwell regarded· the verdict " as a greater defeat then the loss of a battle would have been."(25) .



In the words of Leonard Levy, "Lilburne' s courtroom triumph was his last Cromwell had a tiger by the tail and simply could not let him go. The risk that he would spearhead intrigues against the government and promote discontent among the people was too great"(26) Lilburne was kept under strict surveillance in the Tower of London and in the spring of l 654, exiled to the island of Jersey. Eventually he was transferred to prison in Dover, where his health and spirits deteriorated. He finally died two years later, in 1657, at the age of forty-three.



Lilburne's public life was a monument to freedom of the press, religion, and speech. His trials and imprisonments were simply a vantage point from which to attract the attention of the public. He "was animated by a sincere and passionate conception of justice: 'for all that I principally care for', he wrote, 'is to see the thing I engage in be just; and if my conscience upon solid and mature deliberations tells me it is, I will by the strength of God, if once I be engaged in it, either go through with it or die in the midst of it, though there not be one man in the world absolutely of my mind to back me on it'."(27) Twice he gained acquittals from juries in political trials and he certainly helped establish the trial by jury as the palladium of liberty. But for our purposes, here, he, "more than any other individual... was responsible for the acceptance of the principle that no person should be compelled to be a witness against himself in criminal cases. Lilburne had made the difference From his time, the right against self-incrimination was an established, respected rule of the common law, or, more broadly, of English law generally."(28)



As early as 1646, other political and religious dissidents in England, had been invoking the right to be silent before their accusers. The right was extended to witnesses during the trial of Charles I in 1649 and it was again claimed in 1 660 by at least one of the Puritan regicides who was accused of treason. Perhaps the most famous trial of the late 1 600's involving this right took place in 1670 and involved the Quakers William Penn and William Mead. Mead and Penn were charged with breaching the peace by unlawfully preaching to a street crowd of some 300 people. The trial began when the judges found the two Quakers in contempt for failing to remove their hats in court. Mead was questioned by the court recorder whether or not he had been present at the meeting and heard Penn preaching. Mead responded



“that it is a maxim in your own law, 'nemo tenetur accusare seipsum'; which if it be not true in Latin, I am sure it is true English, 'that no man is bound to accuse himself.' And why dost thou offer to ensnare me with such a question? Doth not this show thy malice? Is this like unto a judge, that ought to be counsel for the prisoner at bar?”



Howell, the recorder, explained that he did not go about intending to ensnare Mead, but admitted shortly thereafter that Mead was " an enemy to the laws of England" and "not worthy of such privileges as others have." Yet, the court dropped the incriminating question.



The balance of their trial relates to Penn's insistence on liberty of conscience, his challenge to the indictment, and the " celebrated fight over the jury's verdict" The jury originally found Penn guilty of speaking, but not guilty of speaking to an unlawful assembly After being browbeaten by a court that refused to accept their verdict, the jury changed its verdict to a clear acquittal of both men. "Penn himself contributed to their courageous stand by his stirring speeches in favor of the freedom of an English jury to decide according to their consciences without being menaced by the court. In the end, the court fined the members of the jury forty marks each and imprisoned them till they paid; they had followed their own ' opinions, rather than the good and wholesome advice which was given' by the judges. Edward Bushell and three other jurors appealed their fines, and the Court of Common Pleas held that a jury could not be punished for its verdict After Bushell's case in 1670, the courts no longer questioned nor molested a jury because of its verdict in a criminal case."(29)



As the right not to be compelled to be a witness against oneself continued to be invoked in England, its scope gradually expanded to include civil cases, "with respect to questions that might require disclosure of information which could be used against a person in a criminal proceeding ... . " "Thus the initially vague maxim that no man is bound to accuse himself had come to mean that he was not required to answer against himself in any criminal cause or to any interrogatories that might tend to expose him to prosecution." The most extreme advocates of this right, Lilburne and the Levellers, claimed it as a right to "not answer any questions concerning themselves, if life, liberty, or property might be jeopardized, regardless of the tribunal or government agency directing the examination, be it judicial, legislative, or executive." Today that right "is available at all stages and in all types of official proceedings" and "applies in all governmental proceedings where witnesses are summoned, - in all kinds of courts, in grand jury inquiries, and in administrative and legislative investigations."(30)



It is possible to see the integral and important role the right against self-incrimination played in the development of the common law. The whole presumption of a person's innocence until proven guilty rested on their right not to be forced to incriminate themselves. If the prosecution could force a man to convict himself out of his mouth, or alternatively, prove his guilt by his silence, then there was no such thing as the presumption of innocence. The right to silence harmonized with the idea that a man was innocent until proven guilty of a crime and that the burden of proof rested on the prosecution to prove him positively guilty. It provided protection against a man' s home being broken into for evidences of his reading or writing, since no such evidence could be used in court against him. It prevented judicial torture, since it was held that coercing a confession from a man was unfair and illegal. It was indirectly related to the right of counsel and the right of calling witnesses in one's defense, since it made possible the silence of the defendant yet enabled him to present a defense without answering direct questions. In the words of Leonard Levy, the right against self-accusation was



“most closely linked to freedom of religion and speech. It was, in its origins, unquestionably the invention of those who were guilty of religious crimes, like heresy, schism, and nonconformity, and, later, of political crimes, like treason, seditious libel, and breach of parliamentary privilege – more often than not, the offense was merely criticism of the government, its policies, or its officers. The right was associated then with guilt for crimes of conscience, of belief, and of association. In the broadest sense it was a protection not of the guilty, or of the innocent, but of freedom of expression, of political liberty, of the right to worship as one pleased . ... It was part of the heritage of liberty which the common law bequeathed to the English settlers in America.”(31)



The development of the right to silence in America – compared to its origins in England - illustrates a significant difference in the way respect for individual rights grew in both countries. Despite the fact that Lilburne and others harked back for their justifications to Magna Carta and the Petition of Right of 1628, there was no written confirmation of the right against self-incrimination in any English constitutional or parliamentary document When the Virginia Declaration of Rights was drawn up by George Mason in 1776, it became the first constitutional document in the English-speaking world to embrace this right The Declaration's Article 8 anticipates many of the rights guaranteed in the 5th and 6th amendments to the U.S. Constitution. The right against self-incrimination was constitutionalized that no man "be compelled to give evidence against himself' in a capital or criminal proceeding.(32)



During the last half of the 17th Century, the right against self-incrimination became" so well established in the customary law of England that it was never even thought necessary by an English Parliament to pass an act or resolution touching the matter. "(33) By the time of the English Bill of Rights in 1689, this right had become so universally recognized that "to have inserted it would have been very much like re-affirming the law of gravitation." McCauley, an English historian, says this would have been like introducing a rule against torture, when it was no longer accepted as a legal practice.



“Torture was not mentioned in the Petition of Right, or in any of the statutes framed by the Long Parliament No member of the Convention of 1689 dreamed of proposing that the instrument which called the Prince and Princess of Orange to the throne should contain a declaration against the using of racks and thumbscrews for the purpose of forcing prisoners to accuse themselves. Such a declaration would have been justly regarded as weakening rather than strengthening a rule which had been proudly declared by the most illustrious sages of Westminster Hall to be a distinguishing feature of the English jurisprudence.”(34)



In many ways, the growth of and recognition of the right against self-incrimination represents the evolution of the unwritten common law. Once Lilburne and others had invoked it and then successfully established it, the right came to be respected by the common law courts. The constitutional settlement of 1689, resulting in the English Bill of Rights did not mention this right, although confirmation of other legal procedures was present For example, mention was made that " excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"; and that armies not be raised in peace time nor be quartered in private homes.



The important point to grasp is that English liberties did not need to be enshrined in parliamentary or extra-parliamentary documents in order to be secure. As Bernard Schwartz, author of many books dealing with English and American constitutional history, has written: "One who looks only at the written law in tracing the history of English liberty is bound to obtain an incomplete and distorted picture."(35)



Early English liberties consisted of a number of widely accepted individual rights, which people, such as Lilburne, had battled for. The true basis of the English antecedents to the American Bill of Rights, and in particular the right of any person (found in the 5th Amendment) not to "be compelled in any Criminal Case to be a witness against himself', is not documentary but customary. Schwartz seconds A. V. Dicey's observation that "The security which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document," The enactment of constitutional bills of rights or parliamentary statutes are "records of the existence of a right" rather "than statutes which confer it," Freedom for the Englishman grew out of custom and tradition and not legislated law.(36)



At the time of the ratification of the U. S. Constitution, there was some discussion as to whether or not customary rights, such as the right against self-accusation, should be embraced in a Bill of Rights. The Federalists often had very libertarian arguments against the adoption of a Bill of Rights, but they did not realize the contradiction between supporting a federal constitution and opposing a bill of rights. They seemed to be oblivious that their arguments against a Bill of Rights could be applied to the Constitution itself. John Dickinson, a leading federalist "stressed that liberty could not really be secured by written guarantees such as those in' a bill of rights, or any characters drawn upon paper or parchment, those frail remembrances'."(37) Dickinson's point is actually very anti-constitutional in the sense that it points out that the only true defense against government is an adequate understanding on the part of the people of their rights and their willingness to defend them. The surest sanctuary of freedom for any people is not in constitutional guarantees or bills of rights, but in the minds of the people and the attitudes that they have toward those who encroach on their rights.(38) They must understand that their rights do not emanate from such documents but rather from their own individual self-ownership, despite the fact that historically at times these rights have been embraced in such documents. To some degree at least, there was throughout the colonies "a very broad understanding that man's rights were founded in the natural law" of self-ownership and not from kings or written documents.(39)



Even as early as 1766, John Dickinson in his "Address to the Committee of Correspondence in Barbardos" wrote that "Kings or parliaments could not give the rights essential to happiness, …..We claim them from a higher source-....They are not annexed to us by parchment and seals. They are created in us by the decrees of Providence, which establishes the laws of our nature." "Our liberties," he added, "do not come from charters, for these are only the declaration of pre-existing rights. "(40) John Adams, in a similar vein wrote, that "British liberties are not the grants of princes or parliaments, but original rights, ... ; that many of our rights are inherent and essential, agreed on as maxims and established as preliminaries even before a parliament existed."(41) The great danger of embracing individual rights in a bill of rights is that latter generations, who have not had to fight for them, come to forget that these are rights they possess as individuals and not grants or privileges given to them by governments. Relying on a 5th Amendment argument against self-incrimination is inherently self-defeating because it already implies that if the 5th Amendment were changed or altered, then one would no longer have a reason for claiming the right to silence. The claim derives from one's existence as a person and is not derived from its codification in any constitutional document We do not speak of our "right to property" as being derived from the Bill of Rights, and it is false and misleading to refer to our right against self-incrimination as a "5th Amendment" right



Many commentators, especially 20th Century jurists, have more often than not referred to the right against being compelled to be a witness against oneself as " a privilege." Leonard Levy in his preface to The Origins Of The Fifth Amendment makes an emphatic point of stressing that "the legal profession customarily refers to the right against self-incrimination as a 'privilege,' " but Levy insists on calling it" a 'right' because it is one. Privileges are concessions granted by the government to its subjects and may be revoked."(42) Black's Law Dictionary makes the distinction plain by defining an "inherent right" as "one which abides in a person and is not given from something or someone outside itself. A right which a person has because he is a person."(43) The confusion almost seems to have come about as a result of its constitutionalization in the Bill of Rights. Who knows how 20th Century jurists would have referred to the right against self-incrimination if it had not been codified in the 5th Amendment? However they might have referred to it, the point is that there is a vital distinction between claiming something as a right and a privilege. A privilege can be revoked at the command of the government, whereas an inherent right cannot be.



The main point is that people should look more towards understanding their inalienable rights as individuals and rely on their rational distrust and rejection of government and its power rather than anticipating that laws will secure their liberty. Even if a people, such as the American colonists, start out with the idea that their natural rights can be protected by a Bill of Rights, it soon becomes clear that this outlook only masks a misunderstanding. All of our rights, like freedom of religion and freedom of press and assembly are essentially derivatives of property in ourselves and the exterior world around us. As such, they derive from the principle of self-ownership and our ancestor's ability to homestead unowned and unused property. If we allow government to "guarantee" our rights for us, we most likely will end up losing them. Any government that is strong enough to "guarantee" rights, is automatically suspect and probably already strong enough to violate them.(44) Both history and theory confirms that this is true.



In one sense, the right against self-accusation is but a subset of the broader right "to be let alone." In a 1927 dissent, Justice Branceis referred to this right as "the most comprehensive of rights and the right most valued by civilized men. "(45) The right to be left alone can be readily measured by the extent that government employees confiscate property from individuals and to the extent one becomes a criminal by minding one's own business. Surely no government could long exist if it did not have the power to compel from people some information about themselves.(46) This freedom from coercion is what the institution of government inevitably must violate or else cease being a government Despite all the constitutional protections in the world, a government must necessarily abridge this right if that government is to exist. The right to one's person may be said to be a right of complete immunity from outside interference.(47) This means that no one, whether called a government employee or not, has the right to interfere with the activities of another peaceful person; but then no government can exist without violating this right That is why the right to be let alone is irreconcilable with the existence of government.



Even if a government exists, it becomes hard pressed to obtain information from those over whom it rules if they have the right to refuse to provide it with information which may serve to incriminate themselves. Governments, because they are invasive institutions, are caught in a catch-22 situation. If they do not enact criminal sanctions against those who refuse to cooperate and refuse to provide it with information about themselves, then they have no basis on which to coerce such cooperation. On the other hand, when they enact criminal sanctions for failure to cooperate, they automatically place such an action under the category of "incriminatory." The financial affairs of an honest person are not (criminally) incriminating, except for the fact that the government makes a failure to disclose such information a crime.



The presumption of innocence is intimately related to the right against self-incrimination. Who shoulders the burden of proof in establishing innocence or guilt is a crucial question bearing on this right. If the individual has the burden, then it is possible that the person may forced to reveal incriminating evidence in establishing his or her innocence. On the other hand, if the burden is on the government to establish guilt, the individual retains the right to be silent. If the government cannot establish guilt, then the person is innocent under this presumption. By not being forced to offer evidence in his or her favor, a person cannot be coerced into supplying any evidence at all. These issues are dramatically brought out in both Udall's and Lilburne's confrontation with the authorities. As Udall said, he was not bound to prove his innocence, but his accusers were bound to prove his guilt.



It is largely in contempt hearings, especially those involving the right to remain silent, where the consideration of the burden of proof plays an important role. The courts have sometimes determined that a person cannot "be jailed for contempt for invoking his constitutionally protected privilege not to be a witness against himself. "(48) It is in such cases, especially when a judge orders a defendant to offer evidence against himself that the conflict between governmental power and individual rights, is clearly set forth. If a person be threatened with penalties of imprisonment or fines for failure to disclose incriminating evidence, then what has happened to right of silence? It is really no different than Star Chamber proceedings, when interrogatories were addressed to the defendants and upon their refusal to swear or answer, they were jailed. A judge who holds a defendant in contempt for his refusal to answer is responding no differently than his Star Chamber counterpart of 300 years ago.



It is strange that little has been written specifically in libertarian literature concerning the danger of the contempt power.(49) While all governmental power is criminal, the contempt power places the most tyrannical powers in the hand of a single individual: the judge. Two early cases of contempt will illustrate this assertion. The first pre-dates even Lilburne's experiences with the Star Chamber. Richard Chambers, an English merchant, refused to pay tonnage on imported goods. He was ordered before the Star Chamber and at some point in the proceedings cried out that "the merchants are in no part of the world so screwed and wrung as in England; that in Turkey they have more encouragement" He was found guilty of contempt and ordered to pay a fine of2000 pounds and" ordered imprisoned until he made a submission that he had committed a wrong. Chambers, a sturdy Puritan, absolutely refused to sign the submission tendered to him. Instead, he wrote at its foot, 'I ... do utterly abhor and detest, as most unjust and false; and never till death will acknowledge any part thereof." He languished in jail for 6 years before he was released.(50)



The second case involves William Bingley, printer of No. 50 of the North Briton, which accused Lord Mansfield of having acted as counsel for the prosecution in relation to the case of John Wilkes (much of English case law against unreasonable search and seizure stems from the Wilkes case). Bingley was brought before the Court in June 1768 and remained in jail for 10 weeks. He was released and committed again in January 1769 for refusing to answer interrogatories about the authorship of the libelous articles. He remained in prison until June 1770, when the Attorney General came to the conclusion that Bingley had been sufficiently punished. Sir John Fox, one of the few English commentators on contempt, noted that "On principle [Bingley) should have remained there [in jail) for the rest of his life or until he submitted... ." Fox was aware of the paradox of compelling an alleged offender to answer interrogatories, even though "it is pointed out that by our laws no man can be bound to accuse himself." If an offender fails to answer questions put to him by the judge and he is committed in default to prison, the "the necessary conclusion is that a man can be bound to accuse himself although by law it is forbidden."(51)



There are many contemporary examples of this paradox. Some serious conflicts arose when people were quizzed by the House Un-American Activities Committee during the McCarthy era. They were often asked about their alleged communist sympathies or required to produce books and records belonging to organizations which were supposed to be communist fronts. Their refusal to testify or comply placed them in contempt and many went to jail rather than be forced to speak. The Supreme Court upheld their jailings, but one dissenting judge likened their convictions to judging a man guilty for simply standing mute.(52) All contempt power, whether it be civil or criminal, essentially aims at provoking a positive act on the part of the offender normally a man is held as a criminal for violating rights, which usually requires an act of commission on his part To hold a man guilty for something he has not done is reversing the scales of justice and the presumption of innocence. (53)



Although the Internal Revenue Service cannot hold anyone directly in contempt, they are able to petition federal judges to issue enforcement orders, which effectively coerce people into cooperating with them or else be found in contempt of the judge's order. Here again surfaces the paradox of the contempt power. Someone can be jailed for refusing to reveal incriminating personal information to the Internal Revenue Service. In such cases, what actually occurs is that "the inherent power of the courts to punish for contempt" is being used "to aid an administrative body and to compel obedience to its requirements." The court then becomes merely an assistant to the IRS. There are few procedural or constitutional safeguards involved in contempt proceedings and one is literally at the mercy of one's judge,(54) This is why it is not far from the truth to refer to the Internal Revenue Service as the 20th Century's Star Chamber.



The author's own experiences with the government in late 1983 lend credence to this view of the IRS. As a conscientious objector against taxation, the author for many years purposefully held his income below the filing limits set by the government He therefore had no obligation to file returns. When the IRS noted that he had ceased filing, they contacted him for reasons as to why they had not received returns from him. The author refused to supply any information and claimed his right to remain silent Finally after 5 years, he was served with an administrative summons issued by the IRS. This was ignored inasmuch as the author refused to recognize its jurisdiction over him. Eventually the IRS requested that a federal district judge issue an enforcement order, directing that the author appear before the IRS and furnish them with all information relative to his income and financial dealings during the period 1976-1982. He refused to contest the consideration of the enforcement order, but eventually did appear before several . Internal Revenue agents and asserted his right not be bear witness against himself.



Since this appearance did not satisfy the IRS, they petitioned the federal judge to find the author in civil contempt for failure to abide by the enforcement order (in other words, although the author appeared, he refused to supply the IRS with any information at all, even that his income was below the taxable level). At the contempt hearing, the judge found him in contempt even though it was pointed out that a person has the right not to answer incriminating questions. The author was sentenced to 40 days in jail for his contempt of court, unless he provided the requested information. Although the author was accused of no crime, he was placed in a jail cell for his failure to obey the judge's order and served his time in full.



This action for civil contempt illustrates the "Star-Chamberlike" aspects of the government's ability to find its citizens in contempt. First of all it demonstrates how much the basic right "to be let alone", if you have not caused harm (physical) to another, has been disregarded. The right to refuse to bear witness against oneself places the presumption of proof on the government, not on the citizen. Secondly, civil contempt proceedings are exempt from reconsideration by trial by jury and therefore are effectually unappealable. This gives the judge unlimited powers of punishment At least in cases of criminal contempt of court, judges are limited by the Supreme Court' s decision that any person who receives a contempt sentence of more than 6 months has a right to a jury trial.



Dissidents and tax protesters in many areas of the United States have been placed in jail on both civil contempt and criminal charges (such as failure to file income tax returns). Recently a group in Idaho was prosecuted by their state government for refusal to supply it with information regarding their personal income. At least 6 people were placed in county jails for their refusal to cooperate. All governments are faced with the dilemma of having to initiate violence or threats against those citizens who will not voluntarily cooperate. It is as though the refusal to do business with the State is a crime. Even conscientious objectors who want nothing to do with any government are forced to deal with it. And that illustrates the difference between a private business (no matter how large a corporation it might be) and the government. No private corporation can put a person in jail for refusing to trade with it or for refusing to supply it with information about one's personal finances.



People who have consistently refused to bear witness against themselves over the centuries were refusing to accuse themselves and to provide government with information which could be used to criminally convict them. They were, in effect, refusing to cooperate with the government's violation of individual rights. If enough people did that over time, governments would find it increasingly difficult to violate individual rights. Tax collection and the exercise of other aspects of government coercion and confiscation would be stymied when people did nothing more than say, "No," and remain silent. No right-thinking person could willingly cooperate with a criminal gang intent upon despoiling and victimizing peaceful people. Thus the right to silence, the right to refuse to bear witness against oneself, the right against self-accusation, the right to be let alone are key rights in opposing the initiation of force by governments against its citizens.(55)



Carl Watner

November 1983



(1) The idea of conscientious objection against taxation probably originated in the 19th Century tax protests of Amos Bronson Alcott. Charles Lane. and Henry David Thoreau. See the discussion of their history in Charles Lane. A VOLUNTARY POLITICAL GOVERNMENT, (Compiled and with an introduction by Carl Watner,) St. Paul: Michael E. Coughlin, Publisher. 1982.

(2) Leonard W. Levy, THE ORIGINS OF THE FIFTH AMENDMENT, New York: Oxford University Press. 1968. p. vi,.,., Levy's work is the mos/outstanding discussion of this right and furnishes the basis of much of his 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. 610-63Z

(3) Levy, op. cit .pp. 3 and 62.

(4) Ibid., p. 63.

(5) Ibid., p. 5l.

(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.

(IO) 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 at 403 and 404.

(20) Levy, op. cit., pp. 296-298.,

(21) Ibid., p. 299.

(22) Ibid.

(23) Ibid., pp. 301-309, Citing Lilbume's reference to the Petition of Right(1628) as justification for his right to remain silent, Levy calls this "familiar but strained Leveller interpretation of that great document which none of the judges corrected." Ibid., p.304.

(24) Ibid., pp. 309-310.

(25) Ibid., p. 311.

(26) Ibid., p. 312.

(27) M A. Gibb, JOHN LILBURNE: THE LEVELLER. London: Lindsay Drummond Ltd.. 1947, p. 144. With regard to Lilburne's imprisonment. generally, see William Haller, op. cit ,. Vol. I, p. 104. The other major Lilbume biography is Pauline Gregg, FREE-BORN JOHN, London: George G. Harrap & Co., 1961.

(28) Levy. op. cit., p. 313.

(29) Ibid., pp. 314-315. Also see extracts of the trial in Isidore Abramowitz, THE GREAT PRISONERS. New York: E. P. Dutton & Co., 1946, pp. 271-288.

(30) Levy, op .. cit .. pp. 330-331. Also see John H. Wigmore, A STUDENTS TEXTBOOK OF THE LAW OF EVIDENCE. Brooklyn: The Foundation press. 1935. p. 371 and Abe Fortas. "The Fifth Amendment: Nemo Tenetur Prodere Seipsum," 25 THE JOURNAL OF THE CLEVELAND BAR ASSOCIATION (April 1954) p. 100.

(31) Levy. op. Cit., pp. 331-332.

(32) Bernard Schwartz. THE GREAT RIGHTS OF MANKIND: A HISTORY OF THE AMERICAN BILL OF RIGHTS. New York: Oxford University Press. 1977. pp. 71 and 88.

(33) R. Carter Pittman, "The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America". 21 VIRGINIA LAW REVIEW (1935), p. 774.

(34) Ibid.

(35) Schwartz. op. cit., p. 23.

(36) Ibid., p. 24. For the original quotation see A. V . Dicey, INTRODUCTION TO THE STUD Y OF THE LA W OF THE CONSTITUTION (9th ed.), London: MacMillan & Co., 1939, pp. 206-207. Also see ibid., pp. 186-187.

(37) Schwartz, op. Cit., p. 112.

(38) Robert Rutland, THE BIRTH OF THE BILL OF RIGHTS. 1776-1791. Chapel Hill: University North Carolina Press, 1955, p. 229.

(39) Charles J. Antieau, RIGHTS OF OUR FATHERS, Vienna, Va.: Coiner Publications, 1968. p. 177.

(40) Ibid., p. 173.

(41) Ibid., p. 191.

(42) Levy, op. cit., p. vii.

(43) Henry Campbell Black, BLACK'S LAW DICTIONARY (5th ed.), St Paul: West Publishing. 1979. p. 704.

(44) Herbert J. Storing, WHAT THE ANTI-FEDERALISTS WERE FOR, Chicago: The University of Chicago Press, 1981, p. 69. Several other comments from this work are appropriate. One federalist admitted that "that no bill of rights can add anything to men's natural rights," (p. 70) and it was noted that "It is next to impossible to enslave a people immediately after a firm struggle against oppression. while the sense of past injury is recent and strong. But after some time this impression naturally wears off. - the ardent glow of freedom gradually evaporates; ... " (p. 75).

(45) Justice Brandeis. dissenting in Olmstead v. United States, 277 US 438 01478. On the right to be left alone, generally. see Daniel J. Dykstra, "'The Right Most Valued by Civilized Man'," 6 UTAH LAW REVIEW (l959), pp. 305-322; Erwin Griswold. "The Right to be Let Alone." 55 NORTHWESTERN UNIVERSITY LAW REVIEW (1960-J 961), pp. 216-226; and the historical part of the Supreme Court decision ;n Miranda v. State of Arizona. 384 US 459 at 459-461.

(46) Robert Gerstein, "Privacy and Self- Incrimination." 80 ETHICS (1970), p. 89.

(47) Thomas Cooley, A TREATISE ON THE LAW OF TORTS (3rd ed.), Chicago: Callaghan & Co., 1906, p. 33.

(48) Two general discussions of the burden of proof can be found in Frands Lieber, ON CIVIL LIBERTY AND SELF-GOVERNMENT, Vol. II, Appendix III. "A Paper on Subjects Connected with the Inquisitorial Trial and the Laws of Evidence,&quo Back to category overview Back to news overview Older News Newer News



PURPOSEThe purpose of this document is twofold. The first is to examine, historically, how and in what situations individuals have asserted the right to remain silent The second is to determine why the right of silence is such an important right, why its manifestation is an important part of the self-ownership principle. Self-ownership includes the right not to expose oneself to the loss of life or property by self-accusation. Knowledge of the history and significance of this right will enhance respect for those who have and those who continue to bear witness for silence.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 OJ The Fifth Amendment,“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.!S) 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 up 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 trail, 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 no!. 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 stubbornness 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', Lilbume 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 libeled 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 the 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 compell any person or persons to answer to questions against themselves," it called for the abolition of all religious tithes and enforced maintainences 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 Lilbume 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. Lilbume'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 Lilbume'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 Lilbume'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 thaf' 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 oflaw', 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 with 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 165 1 , 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-Chamberlike" proceeding and fled to Holland to escape the death penalty that attached to his remaining in England longer than 20 days.Thinking that the political situation had changed sufficiently to allow him to emigrate back to England, Lilburne returned to England after Cromwell had dissolved the Rump Parliament He was arrested in June 1653, and again placed on trial for his life by the Council of State. Lilburne's strategy was to place the government on trial, too. He reasoned that the indictment of 1651 had been passed by an illegal parliament, since Cromwell had chosen to disband it On the other hand, if the bill of attainder passed by the now non-existent parliament was valid, then clearly Cromwell's act of dissolution had been a usurpation, "rendering illegal the very government that was prosecuting him."(24)Lilburne, as usual, was full of legal objections and technicalities, but was afforded nearly every benefit of common-law procedure. He was successful in wresting a copy of his indictment from the court and obtained the assistance of counsel in challenging it As usual, he would admit nothing about himself in court, not even that he was the John Lilburne referred to in act of banishment. He "played his role as Freeborn John with gusto and drama, appealing once and again to the jury to stand fast for English liberties. If he died on Monday, he told them, on Tuesday Parliament might pass sentence on every one of them and their families, all of London, and eventually all of England." His acquittal was greeted with "joy and acclamation" by the spectators and troops stationed in the court. Cromwell regarded· the verdict " as a greater defeat then the loss of a battle would have been."(25) .In the words of Leonard Levy, "Lilburne' s courtroom triumph was his last Cromwell had a tiger by the tail and simply could not let him go. The risk that he would spearhead intrigues against the government and promote discontent among the people was too great"(26) Lilburne was kept under strict surveillance in the Tower of London and in the spring of l 654, exiled to the island of Jersey. Eventually he was transferred to prison in Dover, where his health and spirits deteriorated. He finally died two years later, in 1657, at the age of forty-three.Lilburne's public life was a monument to freedom of the press, religion, and speech. His trials and imprisonments were simply a vantage point from which to attract the attention of the public. He "was animated by a sincere and passionate conception of justice: 'for all that I principally care for', he wrote, 'is to see the thing I engage in be just; and if my conscience upon solid and mature deliberations tells me it is, I will by the strength of God, if once I be engaged in it, either go through with it or die in the midst of it, though there not be one man in the world absolutely of my mind to back me on it'."(27) Twice he gained acquittals from juries in political trials and he certainly helped establish the trial by jury as the palladium of liberty. But for our purposes, here, he, "more than any other individual... was responsible for the acceptance of the principle that no person should be compelled to be a witness against himself in criminal cases. Lilburne had made the difference From his time, the right against self-incrimination was an established, respected rule of the common law, or, more broadly, of English law generally."(28)As early as 1646, other political and religious dissidents in England, had been invoking the right to be silent before their accusers. The right was extended to witnesses during the trial of Charles I in 1649 and it was again claimed in 1 660 by at least one of the Puritan regicides who was accused of treason. Perhaps the most famous trial of the late 1 600's involving this right took place in 1670 and involved the Quakers William Penn and William Mead. Mead and Penn were charged with breaching the peace by unlawfully preaching to a street crowd of some 300 people. The trial began when the judges found the two Quakers in contempt for failing to remove their hats in court. Mead was questioned by the court recorder whether or not he had been present at the meeting and heard Penn preaching. Mead responded“that it is a maxim in your own law, 'nemo tenetur accusare seipsum'; which if it be not true in Latin, I am sure it is true English, 'that no man is bound to accuse himself.' And why dost thou offer to ensnare me with such a question? Doth not this show thy malice? Is this like unto a judge, that ought to be counsel for the prisoner at bar?”Howell, the recorder, explained that he did not go about intending to ensnare Mead, but admitted shortly thereafter that Mead was " an enemy to the laws of England" and "not worthy of such privileges as others have." Yet, the court dropped the incriminating question.The balance of their trial relates to Penn's insistence on liberty of conscience, his challenge to the indictment, and the " celebrated fight over the jury's verdict" The jury originally found Penn guilty of speaking, but not guilty of speaking to an unlawful assembly After being browbeaten by a court that refused to accept their verdict, the jury changed its verdict to a clear acquittal of both men. "Penn himself contributed to their courageous stand by his stirring speeches in favor of the freedom of an English jury to decide according to their consciences without being menaced by the court. In the end, the court fined the members of the jury forty marks each and imprisoned them till they paid; they had followed their own ' opinions, rather than the good and wholesome advice which was given' by the judges. Edward Bushell and three other jurors appealed their fines, and the Court of Common Pleas held that a jury could not be punished for its verdict After Bushell's case in 1670, the courts no longer questioned nor molested a jury because of its verdict in a criminal case."(29)As the right not to be compelled to be a witness against oneself continued to be invoked in England, its scope gradually expanded to include civil cases, "with respect to questions that might require disclosure of information which could be used against a person in a criminal proceeding ... . " "Thus the initially vague maxim that no man is bound to accuse himself had come to mean that he was not required to answer against himself in any criminal cause or to any interrogatories that might tend to expose him to prosecution." The most extreme advocates of this right, Lilburne and the Levellers, claimed it as a right to "not answer any questions concerning themselves, if life, liberty, or property might be jeopardized, regardless of the tribunal or government agency directing the examination, be it judicial, legislative, or executive." Today that right "is available at all stages and in all types of official proceedings" a