The Right to Remain Silent: A Retrospective of the Privilege Against Self-Incrimination in the United States

Author: Michael Mears


          The right to remain silent began in our justice system because of the trials and tribulations of a long line of martyrs.  According to an exhaustive study of the development of this area of common law by Leonard Levy, the first person on record to suffer death because he asserted his right to remain silent was John Lambert.  Upon being accused of the infamous crime of heresy in 1537, Lambert told his inquisitors, “though I did remember . . . yet were I more than twice a fool to show you thereof; for it is written in your own law, ‘[n]o man is bound to . . . accuse himself.”

            In the late sixteenth and early seventeenth centuries, the draconian Star Chamber contributed to the development of the right to remain silent.  Active in the Tudor and early Stuart periods of English history, the Court of Star Chamber was an outgrowth of the royal council and consisted of judges and privy councillors.  The purpose of the Star Chamber was to give greater speed and flexibility to common-law courts and equity courts in both civil and criminal matters.  As a result of the ruthless inquisitorial nature of the Star Chamber judges, the term has become synonymous with secret, oppressive, or irresponsible court proceedings.

            The Star Chamber was eventually abolished by the British House of Commons in 1641, in large part because of the bravery and unswerving dedication of the immortal John Lilburne.  He was steadfastly dedicated to maintaining his right to remain silent, even in the face of his inquisitors, and he refused to convict himself of a crime by waiving that right.  Lilburne was committed to prison by the Court of Star Chamber after two of his associates accused him of importing seditious books in order to save their own lives.  Under the law at that time, to secure a conviction for his crime the government needed Lilburne’s confession in addition to the accusations of his associates.  When the Star Chamber brought him before the judges, Lilburne refused to take the oath or answer any questions.  He was found guilty of contempt and was sentenced to public whipping and locked in the pillory in the middle of London.  He was subsequently whipped over 200 times on the two-mile walk to the pillory, and his remarkable courage to withstand the punishment rather than confess won him instant fame.  On the way to the pillory and between floggings, Lilburne told the assembled crowds that the “law of God . . . requires no man to accuse himself.”  Then, in November of 1640, a new member of Parliament delivered an impassioned speech in support of John Lilburne’s freedom, which subsequently led to his and other prisoners’ release.  Parliament met in April 1641 and determined that Lilburne’s imprisonment and punishment were “illegal and against the liberty of the subject” and ordered that he be released and receive reparations for his suffering.

            Although Parliament freed Lilburne, the House of Commons had not established the right to remain silent by law, but it did establish the right against self-incrimination.  Under the common law, torture was illegal when its purpose was to extort confessions, and common law has long accepted, at least abstractly, that one should not force a person to accuse himself.  Still, there was no official recognition that a refusal to answer incriminating questions did not imply guilt.  It was not until John Lilburne’s courageous stand that the law afforded the right of an accused person to remain silent in common law proceedings.            

          However, John Lilburne’s contributions to the development of the right to remain silent did not end with his vindication by Parliament.  After John Lilburne and one of his associates, Richard Overton, published pamphlets attacking Lord Cromwell in 1649, he was promptly rearrested and returned to prison.  At his trial, John Lilburne again refused to answer any questions and, in addition, he demanded the right to have counsel, time to consult with that counsel, the right to subpoena witnesses in his favor, and a copy of his indictment.  At the end of the trial, the jury returned a not guilty verdict after deliberating for just one hour and Lilburne was once again freed.

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