Thursday, December 31, 2009

John Lilburne: the Forgotten Libertarian Hero

John Lilburne was an author of the Agreement of the People, a prototype for the U.S. constitution and the Bill of Rights:

X. That we do not inpower or entrust our said representatives to continue in force, or to make any Lawes, Oaths, or Covenants, whereby to compell by penalties or otherwise any person to any thing in or about matters of faith, Religion or Gods worship or to restrain any person from the profession of his faith, or to exercise of Religion according to his Conscience, nothing having caused more distractions, and heart burnings in all ages, then persecution and molestation for matters of Conscience in and about Religion :

XI.We doe not impower them to impresse or constraint any person to nerve in war by Sea or Land every mans Concience being to be satisfied in the justness of that cause wherein he hazards his own life, or may destroy an others.

And for the quieting of all differences, and abolishing of all enmity and rancour; as much as is now possible for us to effect. (…)

XVI. That it 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. (…)

XVIII. That it shall not be in their power to continue to make any Laws to abridge or hinder any person or persons, from trading or merchandising into any place beyond the Seas, where any of this Nation are free to trade.

XIX. That it shall not be in their power to excise Customes upon any sort of Food, or any other Goods, Wares or Commodities, longer than four months after the beginning of the next Representative, being both of them extreme burthensome and oppressive to Trade, and so expensive in the Receipt, as the moneys expended therein (if collected as Subsidies have been) would extend very far towards defraying the publick Charges; and forasmuch as all Moneys to be raised are drawn from the People; such burthensome and chargeable waves, shall never more be revived, nor shall they raise Moneys by any other ways (after the aforesaid time) but only by an equal rate in the pound upon every reall and personall estate in the Nation.

XX. That it shall not be in their power to make or continue any Law, whereby mens reall or personall estates, or any part thereof, shall be exempted from payment of their debts (…)

XXI. That it shall not be in their power to continue any Law, for taking away any mans life except for murther, or other the like heinous offences destructive to humane Society, or for endevouring by force to destroy this our Agreement, but shall use their uttermost endeavour to appoint punishments equall to offences: that so mens Lives, Limbs, Liberties, and estates, may not be liable to be taken away upon trivial or slight occasions as they have been; and shall have speciall care to preserve, all sorts of people from wickedness misery and beggery: nor shall the estate of any capitall offender be confiscate but in cases of treason only; and in all other capitall offences recompense shall be made to the parties damnified, as well out of the estate of the Malifactor, as by loss of life, according to the conscience of his jury.

XXII. That it shall not be in their power to continue or make any Law, to deprive any person, in case of Tryals for Life, Limb, Liberty, or Estate, from the benefit of witnesses, on his, or their behalf; nor deprive any person of those priviledges, and liberties, contained in the Petition of Right, made in the third veer of the late King Charles. (…)

XXV. That it shal not be in their power, to continue or make a law, for any other way of Judgments, or Conviction of life, limb, liberty, or estate, but onely by twelve sworn men of the Neighbor-hood ; to be chosen in some free way by the people; to be directed before the end of next Representative, and not picked and imposed, as hitherto in many places they have been. (…)

XXX. We therefore agree and declare, That it shall not be in the power of any Representative, in any wise, to render up, or give, or take away any part of this Agreement, nor level mens Estates, destroy Propriety, or make all things Common . (…)

Thus, as becometh a free People, thankfull unto God for this blessed opportunity, and desirous to make use thereof to his glory, in taking of every yoak, and removing every burthen, in delivering the captive, and setting the oppressed free ; we (…)give cleer testimony of our absolute agreement to all and every part hereof by subscribing our hands thereunto.

He also helped entrench the right against self-incrimination and paved the way for the Fifth Amendment:

We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. 27 Perhaps [384 U.S. 436, 459] the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating:

"Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944).

On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. 28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. 29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated to constitutional status and has always been "as broad as the mischief [384 U.S. 436, 460] against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage.

2 comments:

Reasonsjester said...

Thanks for all the classic political statements and philosophical and historical insight you provided in 2009. Keep 'em coming, and have a great New Year!!

Reaganx said...

Thanks, have a great new year too. :) I've just watched our clown Medvedev's New Year's Day statement.