ex officio oath

The ''ex officio'' oath developed in the first half of the 17th century (1600 to 1650), and was 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), or 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.

Early history

During the Middle Ages the jurisdiction of ecclesiastical courts was limited by a 14th century statute called ''Articuli Cleri'', while the later ''Prohibitio formata de statuto Articuli cleri'', also during the reign of Edward II, specified the exclusive jurisdiction of the King's Courts.

Leonard Levy wrote in '' Origins of the Fifth Amendment'' that self-incriminating oaths were banned by statute, but Henry A. Kelly noted the limited jurisdictional scope of the statute only limited the oath to matrimonial and testamentary cases. According to the '' Chronica Majora'', when the king wrote to his sheriff, after an outcry from the people against the inquisitions of bishop Robert Grosseteste, instructing that no laymen should be compelled to answer under oath except in cases of matrimony or testaments, the bishop accused the king of conspiracy comparing his "audacious" behavior to events in France.

John Wigmore also said the oath was still permitted:

The Church continued to oppose statutory limitations being imposed upon its jurisdiction over heresy. The Suppression of Heresy Act 1400 targeting Lollardy authorized arrests and imprisonment, with cooperation between secular and ecclesiastical courts in the prosecution of heretics continuing for over a century, and including burning at the stake carried out by secular authorities when heretics refused to abjure heretical opinions as required by the laws of the church.

Thomas Fuller wrote about heresy and treason during the Oldcastle Revolt:

...he was not only guilty of heresy, but treason. But, by the way, it appeareth that Lollardism, then counted heresy, was made treason by statute, and on that account heresy and treason signify no more than heresy; and then heresy, according to the abusive language of that age was the best serving of God in those days.

Opposition to the clergy putting suspected heretics to question under oath continued. During the reign of Henry VIII papal jurisdiction over heresy was limited by statute by the '' An Act abolishing diversity in opinions'' in 1538. Mary Queen of Scots restored the papal jurisdiction over heresy, until an Elizabethan statute placed ecclesiastical offices in Crown jurisdiction. Several cases were reported by Coke regarding persons imprisoned by the ecclesiastical judges of the High Commission for refusal to answer them under oath. According to Coke the Common Bench released them according to habeas corpus.

Privilege against self-incrimination

According to scholars of the common law the right against self-incrimination begins with opposition to punishments and penalties imposed for refusing to answer ecclesiastical judges under oath without formal charges being made. Noting inconsistences in cases reported by Edward Coke and James Dyer, E.M. Morgan wrote:

Early examples of a codified right appears in the Levellers manifesto '' Agreement of the Free People of England'' (published 1 May 1649): " 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". John Wigmore and Mary Hume MacguireSe
Essays in history and political theory
in honor of Charles Howard McIlwain, 1967 considered the jurisdictional conflict between common law and the ecclesiastical oath ''ex officio'' the starting point for the privilege against self-incrimination. According to Mary Hume Maguire:

We read a series of petitions from the Commons to the Crown referring to the distasteful practice of ecclesiastical courts of proving the case against the defendant by "fishing interrogatories ''viva voce''"

The right later takes on a different meaning: based on the text of the Fifth Amendment, an accused person facing formal charges is not required to be a witness against themselves in Court.

The United States Supreme Court summarized the events of the time as part of the historical background in the landmark case '' Miranda v. Arizona'':

See also

* Ecclesiastical law
* Inquisition
* History of human rights
* Right to silence in England and Wales
* Hale Commission

References

{{DEFAULTSORT:Ex Officio Oath
Canon law
History of human rights
Counter-Reformation
Levellers
Criminal procedure
Evidence law