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 criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...
in the religious trials of that era. It took the form of a religious
oath
Traditionally an oath (from Anglo-Saxon ', also called plight) is either a statement of fact or a promise taken by a sacrality as a sign of verity. A common legal substitute for those who conscientiously object to making sacred oaths is to ...
made by the accused prior to questioning by the
Star Chamber
The Star Chamber (Latin: ''Camera stellata'') was an English court that sat at the royal Palace of Westminster, from the late to the mid-17th century (c. 1641), and was composed of Privy Counsellors and common-law judges, to supplement the judic ...
, to answer truthfully all questions that might be asked. It gave rise to what became known as the cruel
trilemma
A trilemma is a difficult choice from three options, each of which is (or appears) unacceptable or unfavourable. There are two logically equivalent ways in which to express a trilemma: it can be expressed as a choice among three unfavourable option ...
where the accused would find themselves trapped between a breach of religious oath (taken extremely seriously in that era, a
mortal sin
A mortal sin ( la, peccatum mortale), in Catholic theology, is a gravely sinful act which can lead to damnation if a person does not repent of the sin before death. A sin is considered to be "mortal" when its quality is such that it leads to ...
,
and
perjury
Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
),
contempt of court
Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the cour ...
for silence, or self-incrimination. The name derives from the questioner putting the accused on oath ''
ex officio
An ''ex officio'' member is a member of a body (notably a board, committee, council) who is part of it by virtue of holding another office. The term '' ex officio'' is Latin, meaning literally 'from the office', and the sense intended is 'by right ...
'', meaning by virtue of his office or position.
Outcry against this practice (particularly in the trials of
John Lilburne
John Lilburne (c. 161429 August 1657), also known as Freeborn John, was an English people, English political Leveller before, during and after the English Civil Wars 1642–1650. He coined the term "''freeborn, freeborn rights''", defining them ...
("Freeborn John") around 1630–1649) led to the establishment of the right to not incriminate oneself in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. This was the direct precursor of similar
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
in modern law, including the
right to silence
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...
and non-self-incrimination in the
Fifth Amendment to the United States Constitution
The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amend ...
. The right itself appears as item 16 in the
Levellers
The Levellers were a political movement active during the Wars of the Three Kingdoms who were committed to popular sovereignty, extended suffrage, equality before the law and religious tolerance. The hallmark of Leveller thought was its populis ...
''
Agreement of the Free People of England'' (1649)
and first appeared in US law in the
Massachusetts Body of Liberties
The Massachusetts Body of Liberties was the first legal code established in New England, compiled by Puritan minister Nathaniel Ward. The laws were established by the Massachusetts General Court in 1641. The Body of Liberties begins by establishin ...
and the
Connecticut Code of the same era. The Star Chamber itself, as a judicial body, was abolished by
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
as part of the
Habeas Corpus Act 1640
The Habeas Corpus Act 1640 (16 Car 1 c 10) was an Act of the Parliament of England.
The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas Wentworth, 1st Earl of Strafford in 1641 and before the Engli ...
.
Privilege against self-incrimination
Early examples of a codified right appears in the
Levellers
The Levellers were a political movement active during the Wars of the Three Kingdoms who were committed to popular sovereignty, extended suffrage, equality before the law and religious tolerance. The hallmark of Leveller thought was its populis ...
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".
The right first appeared in US law in the
Massachusetts Body of Liberties
The Massachusetts Body of Liberties was the first legal code established in New England, compiled by Puritan minister Nathaniel Ward. The laws were established by the Massachusetts General Court in 1641. The Body of Liberties begins by establishin ...
and the
Connecticut Code of the same era.
The
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
summarized the events of the time as part of the historical background in the landmark case ''
Miranda v. Arizona
''Miranda v. Arizona'', 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Fifth Amendment to the U.S. Constitution restricts prosecutors from using a person's statements made in response to ...
'':
See also
*
Ecclesiastical law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
*
Inquisition
The Inquisition was a group of institutions within the Catholic Church whose aim was to combat heresy, conducting trials of suspected heretics. Studies of the records have found that the overwhelming majority of sentences consisted of penances, ...
*
History of human rights
While belief in the sanctity of human life has ancient precedents in many religions of the world, the foundations of modern human rights began during the era of renaissance humanism in the early modern period. The European wars of religion and the ...
*
Right to silence in England and Wales
The right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination. It is used on any oc ...
*
Hale Commission
The Hale Commission was established by the Commonwealth of England on 30 January 1652 and led by Sir Matthew Hale to investigate law reform. Consisting of eight lawyers and thirteen laymen, the Commission met approximately three times a week and p ...
References
{{DEFAULTSORT:Ex Officio Oath
Canon law
History of human rights
Counter-Reformation
Levellers
Criminal procedure
Evidence law