Ex officio oath
The ex-officio oath developed in the first half of the seventeenth century, and used as a form of coercion, persecution, and forcible self-incrimination in the religious trials of that era. It took the form of a religious oath made by the accused prior to questioning by the Star Chamber, to answer truthfully all questions that might be asked. It gave rise to what became known as the "cruel trilemma" where the accused would find themselves trapped between a breach of religious oath (taken extremely seriously in that era, a mortal sin, and perjury), contempt of court for silence, or self-incrimination. The name derives from the questioner putting the accused on oath ex officio, meaning by virtue of his office or position.
Outcry against this practice (particularly in the trials of John Lilburne ("Freeborn John") around 1630 - 1649) led to the establishment of the right to not incriminate oneself in common-law. This was the direct precursor of similar rights in modern law, including the right to silence and non-self-incrimination in the Fifth Amendment to the United States Constitution. The right itself appears as item 16 in the Levellers Agreement of the Free People of England (1649) and first appeared in US law in the Massachusetts Body of Liberties and the Connecticut Code of the same era. The Star Chamber itself, as a judicial body, was abolished by Parliament as part of the Habeas Corpus Act 1640.
Privilege against self-incrimination
Early examples of a codified right appears in the Levellers manifesto Agreement of the Free People of England (published 1 May 1649): "[I]t shall not be in the power of any Representative, to punish, or cause to be punished, any person or persons for refusing to answer questions against themselves in Criminall cases",
- Perhaps the critical historical event shedding light on its [ie, the privilege against self-incrimination] origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. He resisted the oath and declaimed the proceedings, stating: "Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so."
- On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights.
- Fellman, David (1979). Defendants Rights Today. University of Wisconsin Press. pp. 304–306. ISBN 978-0-299-07204-9.
- Rubenfeld, Jed (2005). Revolution by Judiciary: the structure of American constitutional law. Harvard University Press. pp. 33–35. ISBN 978-0-674-01715-3.
- John Lilburne; et al. (1 May 1649). An Agreement of the Free People of England.
- Text of the Miranda v. Arizona decision