The right to silence
The privilege can be traced to the 12th century and became more developed in the following centuries. The Latin term “nemo tenetur prodere seipsum” remains in use. It was applied on the Continent before the age of Codification. It was applied in English ecclesiastical courts also. It served as a guarantee that men and women would not be required to become the source of their own public prosecution and it was also a check on over-zealous officials.

In late medieval England anyone whose beliefs or practices deviated noticeably from the norm was liable to be described as a “lollard” or “lollar” and the word “lollard” became known as a general term of abuse in those times when the Church was seen as a well ordered body , staffed at its highest levels by decent and competent clergymen who saw that the ecclesiastical machinery ticked over in broad accordance with canon law. As feudal anarchy raged and as jurisdictional rivalries between ecclesiastical and royal courts provided contention, laws were passed including the Lollardy Act when lawyers were second only to clergymen as figures of hate. The legal privileges of sanctuary and benefit of clergy which were contingent upon the sacred status of the Church’s property and personnel were a perpetual source of friction. Both canon and common lawyers were equally hostile to anything which threatened to subvert the established order of the Church and State. The Magna Carta was as dear to the lawyers as to the clergy and the clergy once a year reminded their congregations of the charter’s contents, which were binding under pain of excommunication.

Professional rivalries among lawyers were matched by similar rivalries between different branches of the clergy through problems arising out of attempts at reform. Since at least the 12th century, medieval reformers has scented corruption in the Church’s vast landed wealth, which, in itself, and in its effect upon clerical lifestyles, struck them as starkly contrasted with the poverty and simplicity of Christ and his apostles recorded in the gospels. From this seedbed of dissent developed Lollardy.

Fourteenth century England was devoid of the inquisitors’ manuals and the special inquisitors commissioned to combat heresy. So was Germany and southern France.

Much of the historical importance of Lollardy consists of the fact that it was the first time that the English ecclesiastical authorities had to grapple with the problem of heresy as anything other than that it was the inconsequential aberration of an eccentric academic ,Wyclif. . Wyclif was at Oxford University where he aired his radical views on property and ownership in a course of lectures which were almost immediately circulated in manuscript as “De civili domino”. These lectures were notable chiefly for their bold contention that clergymen should not own property and it was not possible to question something as fundamental as ecclesiastical property without inviting instant and bitter hostility at the highest level. The Benedictines were the wealthiest of the religious orders. They lobbied for papal sanctions against Wyclif and produced a massive defence of the status quo in the form of the “Defensio ecclesiasticae potestatis”.

After accession of Richard II, Wyclif produced a memorandum against papal taxation of the Church of England He spoke out against the papacy and the mendicant friars and after the Peasants’ Revolt his position at Oxford became untenable and the commonplace connection between heresy and sedition was invoked.

When Richard II was deposed and replaced by Henry IV, Henry IV gave the royal assent to a statute “De haeretico comburendo” (“On the burning of heretics”) , which regularised the customary medieval penalty (recommended by canon law) of death by burning for relapsed or unrepentant heretics. Parliament passed the statute in response to a petition from Convocation. The first victim of the law was William Sawtry, a priest from Norfolk, who was executed under customary procedures. The real importance of the Act was its demonstration that the Crown stood squarely behind the Church in defence of the faith.

In the 16th and early 17th century, the English judges used the maxim of ‘nemo tenetur prodere seipsium’ to prevent the ecclesiastical courts from acting beyond the scope of their jurisdiction. In the late 16th century, opposition to the religious policies of the church clashed with the expansive view of the supervising powers of the common law judges. This produced arguments that writs should issue to keep the ecclesiastical courts from requiring defendants answering incriminating questions. Therefore they sought to establish an effective privilege against self-incrimination. In 1640, the practice of interrogating defendants under oath came to an end.

By the 18th century, English Criminal Procedure made it virtually impossible for a privilege against self-incrimination to be asserted effectively by persons charged with a crime. This was the indirect result of the common law’s refusal to allow criminal defendants to be represented by a lawyer. Without professional assistance, persons accused of a crime had little choice but to speak for themselves. Criminal defendants conducted their own defence. Defendants could not be sworn but they were allowed to speak on their own behalf and almost all did so. But if they did not speak, no-one spoke for them. In such a case, assertion of a right not to answer incriminating questions amounted to a right to forego real defence. This was supported by Wigmore’s writings which state that he found little evidence that privilege was being exercised during the 17th Century and early 18th Century.
Without the active participation of a defence lawyer in criminal cases, “nemo tenetur prodere seipsum” remained a maxim but with severely limited practical consequences. Wigmore’s account of the maxim of privilege focussed on the evidence found in political trials and political tracts and not on manuscript records and phamplet literature.
In the 18th Century, lawyers were crucial in the development of privilege. Today, it is axiomatic that defendants should be represented by a lawyer. English law virtually guarantees representation by a lawyer through a system of legal aid. With the arrival of lawyers since the 18th century came the possibility of effective implementation of the privilege against self-incrimination. By the 19th century, the privilege became the subject of heated controversy as it began to be fully implemented. In one fail swoop, the British lawmakers have wiped out eight hundred years of human rights with the Criminal Justice Act 1987 (section 2) and other statutes since then.
Sally Ramage
 http://www.sallyramage.net