LILBURNE, JOHN (1614–1657)

John Lilburne, whose entire career was a precedent for freedom, was the catalytic agent in the history of the right against self-incrimination. Primarily because of him, that right became a respected, established rule of the common law. An agitator with an incurably inflamed sense of injustice, Lilburne was called Freeborn John, because of his incessant demands on behalf of the rights of every freeborn Englishman. No one in England could silence or out-talk him, no one was a greater pamphleteer, and no one was more principled in his devotion to political liberty, the rights of the criminally accused, and the freedoms of conscience and press. Making civil disobedience a way of life, Lilburne successively defied king, parliament, and protectorate.

He first focused the attention of England on the injustice of forcing anyone to answer incriminating questions during his 1637 trial. After his release from prison in 1641, he joined the parliamentary cause, rose to a high military position, and became close to Oliver Cromwell; but he resigned his commission to be free to oppose the government. Four times he stood trial for his life, and he spent much of his last twenty years in jail, from which he smuggled out a torrent of tracts. He advocated a special constitutional convention to write a constitution for England embodying the reforms proposed by the Levellers, the faction of constitutional democrats that he led.

When Parliament itself arrested and interrogated him, Lilburne became the first hostile witness in a legislative investigation to claim a right not to answer questions against or concerning himself. He successfully made the same claim, under his view of magna carta and the petition of right, before a common law court in 1649, when tried for treason. He appealed to the jury above the heads of the judges and convinced the jury to decide on the injustice of the laws used to persecute political prisoners. Twice he persuaded juries to acquit him. In his trials and writings he educated England on the relation of liberty to fair play and due process of law. At his last trial he won the unprecedented right to secure a copy of the indictment against him and to be represented by counsel in a capital case. Cromwell finally imprisoned him without trial, and Lilburne died in jail.

Leonard W. Levy
(1986)

Bibliography

Levy, Leonard W. 1968 Origins of the Fifth Amendment. Pages 271–312. New York: Oxford University Press.