How “Freeborn John” refused the Star Chamber oath, won two treason acquittals, and helped invent the right to remain silent

This is the next installment of Courage and Consequence — a series about relatively unknown individuals in history who made courageous decisions under extraordinary pressure, and had to live with what followed. John Lilburne needs to be remembered.

London, October 1649. The Guildhall was packed. The charge was high treason. The penalty was the rope, the knife, and the quartering block. The prisoner was told to hold up his hand and answer to the indictment.

He would not. Not yet. First, he said, the court would have to prove it had any right to try him at all.

John Lilburne was born around 1614 into a family of minor gentry in County Durham. He went to London as a boy and was apprenticed to a cloth merchant. He read scripture and he read the law, and he came to believe a thing that would cost him most of his life: that every Englishman is born with rights no king and no parliament can take away. They called him Free-born John. He earned the name.

Before he was a soldier or a politician, he was a smuggler of books. He carried banned Puritan tracts in from Holland and put them into English hands. In December 1637 the state caught him.

They brought him before the Star Chamber. It was the most feared court in England, the personal instrument of King Charles I and Archbishop Laud. The Star Chamber did not need an accuser you could see or a charge you could read. It had a better tool. It made you swear the oath ex officio.

The oath was a trap with three doors. You swore before God to answer any question the court asked, about anything, before you knew the charge or your accusers. Lie, and you damned your soul. Refuse, and you were guilty of contempt. Answer, and you hanged yourself with your own mouth. Pious men walked into that room and convicted themselves to keep from perjury.

Lilburne was twenty-three. He refused the oath.

He did not argue that the books were lawful. He argued that no free Englishman could be made to accuse himself, and that a court with no charge and no witnesses was no court at all. He stood on his birthright and would not move.

The Star Chamber sentenced him to be fined five hundred pounds, whipped, pilloried, and held until he submitted. On a spring morning in 1638 they stripped him to the waist, tied his hands to the back of an ox cart, and flogged him through the streets from Fleet Prison to Westminster. The lash opened his back the whole way. The executioner, it is said, looked at him and remarked that he had whipped many a rogue, but now he would whip an honest man.

They locked his head and hands in the pillory under the noon sun. He kept talking. He told the crowd what had been done to him and why, and he threw printed tracts among them with his bound hands until the officers forced a gag into his mouth. They could stop his voice. They could not stop the story. England remembered.

Parliament freed him in 1640 and later abolished the Star Chamber. The oath ex officio went with it. Then came the civil war. Lilburne fought for Parliament and rose to lieutenant-colonel. He was good in the field and impossible everywhere else. And when the war was won, he learned the lesson that defines him: the men who had broken the king’s arbitrary power were prepared to wield their own.

He led a movement called the Levellers. They asked for plain things that sounded like heresy then and like a constitution now — equality before the law, elected representation, trial by jury, laws written in English so an ordinary man could read the charge against him, and no compelling any person to testify against himself. For this Oliver Cromwell’s government wanted him gone. It tried to do to him exactly what the king had done. It put him on trial for his life.

So he stood in the Guildhall in 1649 and refused to be hurried. He demanded a copy of the indictment so he could see the charge. He demanded counsel. He demanded that the doors stay open and the people watch. He held up the Institutes of Sir Edward Coke and read the law of England aloud to the men who were trying to use it against him. He said he was not bound to answer questions for or against himself, and he would plead only to the known laws of England and a legal jury of his equals.

Then he turned to the jury and told them something the bench did not want said. The jury, he argued, were judges of the law as well as the fact. They could weigh the law itself and refuse to convict under a bad one. Historians mark it as the first clear statement of that idea in an English courtroom.

The twelve went out. They came back. Not guilty, on every charge.

The hall erupted. The shouting ran on, by one account, near half an hour, loud enough to drown the judges. Outside, London lit bonfires. A medal was struck with his face on it: saved by the power of the Lord and the integrity of his jury, who are judges of law as well as fact.

It did not save him. The Council of State sent him back to the Tower. It questioned the jurors one by one, hunting for a way to undo the verdict, and the jurors held. Cromwell could not beat him in a courtroom, so he stopped using one. In 1653 Lilburne was tried again, at the Old Bailey, and acquitted again, to another roar from another crowd. The government held him anyway, by order, with no verdict behind it. They shipped him to Jersey, then to Dover.

In the end the loudest man in England went quiet. In prison he met a Quaker whose stillness reached him, and he converted, and he laid the fight down. He died on parole at Eltham in the summer of 1657, around forty-three, his health spent in cells. His wife Elizabeth was carrying their last child. He had stood trial for his life and walked out alive more than once, and the state had jailed him through all of it anyway.

Lilburne was not a saint and the record should not pretend he was. He was vain, quarrelsome, and exhausting. He fell out with nearly everyone who tried to help him. But the same temperament that made him impossible to befriend made him impossible to break, and that is the whole point. He would not let the forms be skipped, because he understood that the forms were the only thing standing between a free man and the power that wanted to crush him.

He refused the oath that would force him to convict himself. Centuries later, that refusal became the right to remain silent.

The United States Supreme Court named his ordeal in Miranda v. Arizona as a root of the Fifth Amendment.

Justice Hugo Black pointed to his writings as a source for the men who wrote the American constitutions.

The right against self-incrimination, the right to see the charge, the right to counsel, the right to an open trial, the power of a jury to refuse a bad law — a great deal of what now protects an ordinary citizen in a courtroom, he fought for first, alone, with his back already scarred.

He made procedure dangerous.

He treated the rules as the substance of liberty, because he had felt what happens when they are waved aside.

A right on parchment is nothing.

A right is what it is only when a person under threat of death stands in the room and makes the powerful honor it out loud, before the punishment falls.

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Sources: The Trial of Lieut. Colonel John Lilburne, Guildhall, 24–26 October 1649, primary transcript via the Constitution Society (constitution.org); Encyclopædia Britannica, “John Lilburne”; The First Amendment Encyclopedia (Middle Tennessee State University), “John Lilburne”; Dictionary of National Biography (Wikisource); BCW Project, “John Lilburne”; Miranda v. Arizona, 384 U.S. 436 (1966), on the trial of John Lilburn and the privilege against self-incrimination.

Next in this series: Cathay Williams – Women could not enlist. She enlisted anyway and became the only documented woman Buffalo Soldier.

Charles C. Jett is a leadership and assessment specialist, author, and former nuclear submarine officer. He writes on courage, character, and decision-making at criticalskillsblog.com and civicsage.com.