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Copyright © 1935 Virginia Law Review Association.
Originally published as 21 Va. L. Rev. 763 (May, 1935).
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The Colonial and Constitutional History
of the Privilege Against Self-
Incrimination in America

By R. Carter Pittman



C ONSTITUTIONAL lawyers and students of American constitutional history have been able to single out with reasonable certainty tangible causes for the insistence by the American people upon the insertion into the many Bills of Rights the various provisions contained therein, with the exception of the privilege against self-incrimination, which is now to be found as a part of the supreme law in every state of the union except Iowa and New Jersey.(1) It was in the Confederate Constitution, and in the Bills of Rights of the "State of Frankland" in 1783.(2) The privilege against compulsory self-incrimination had never been a part of any of the English fundamental laws such as the Magna Carta, Petition of the Right and English Bills of Right. The only constitutional document that recognized that privilege in any form before 1776 is the Scotch Claim of Rights of 1689, but it expressly authorized torture in certain cases,(3) and the same convention that brought this qualified privilege into being astounded the English speaking world by ordering the assassin of Lord President Lockhart to be stricken in the boot.(4)

Professor Wigmore, whose conclusions with reference to the history of this principle of law are accepted as final authority, makes the observation that,

"The real explanation of the colonial convention's insistence upon it (the constitutional privilege) would seem to be found in the agitation then going on in France against the inquisitional feature of the Ordinance of 1670 (compulsory self-incrimination in effect more than a century). There appears no allusions, in Elliott's Debates on the Constitution to the contemporary French movement but the delegates who had been over there must have known about it."

Professor Wigmore goes on to say:

"The proposals of reforms laid before the French Constitutional Assembly from the provinces, in 1789, show how strong was the popular agitation. The Third Estates in every district, in their 'cashiers' sent up to Paris had voted to abolish compulsory sworn interrogation of the accused."(5)

It is submitted that this explanation entirely ignores the fact and the consequences flowing from the fact that this privilege had been inserted in the constitutions or Bills of Rights of seven American States before 1789; namely, Virginia (June 1776), Pennsylvania (Sept. 1776), Maryland (Nov. 1776), North Carolina (Dec. 1776), Vermont (July 1777), Massachusetts (Mar. 1780) and New Hampshire (1784).(6)

French editions of these American constitutions were published in Paris as fast as they came from the separate conventions.(7) The demand for them became so great that Franklin was induced to get out an official edition of all the American constitutions in 1783.(8) Sir Samuel Romilly, upon visiting the American Envoy in Paris, while these constitutions were being distributed by the thousands, expressed surprise that they were not suppressed by the government and observed that they "certainly produced a very great sensation at Paris, the effects of which were probably felt many years afterwards".(9) In fact, the greater part of those who were demanding a Declaration of Rights in 1789 had "imbibed their principles in America."(10) Nowhere was this American influence testified to more strongly than upon the floor of the National Convention. For example, in August 1789, Rabaut de Saint Ettienne, speaking from the floor, said:

"You have resolved upon a Declaration of Rights because your Cashiers impose it as your duty and your Cashiers mentioned it because France has had America as its model."(11)

The records of those Assembly debates reveal conclusive evidence of the fact that the stream of influence was running towards France and not towards America at this time.(12)

If we attempt to ascribe the influence upon America to the writings of the French political philosophers, we are faced with the fact that those who cried loudest against the inquisitional feature of the Ordinance of 1670, such as Voltaire and Montesque,(13) had all made their studies on this question in England.(14) So the facts drive us to seek other grounds of explanation.



In all of the early American colonies, according to the royal instructions and granted charters, justice was to be administered as closely as possible "to the common law of England and the Equity thereof," and the colonists were to enjoy the privileges of Englishmen "to all intents and purposes as if they had been abiding within  *  *  *  (the) realm of England."(15)

Under the Virginia charter of 1609 the London Company appointed the governor. The chief problem confronting the company at that time was that of bringing order out of chaos. To effect this the company chose as governors, successively, Gates, Dale and Argoll who, due possibly to their experiences in the armies of the Netherlands, worked out rules of conduct called the Divine, Moral and Martial laws, based largely upon the code in use by the Armies of the Netherlands.(16) There was no mercy here. To swear falsely or take an oath untruely meant death.(17) One could not use "disgracefull words" except "upon paine of being tied head and feete together, upon the guard everie night for the space of one moneth."(18)

But by 1624, the year in which Virginia became a royal province, this colony had begun to draw upon the common law for rules of conduct and had abandoned the disciplinary rules which did violence to express charter rights and all systems of civil law.(19) As early as 1630, at least, Virginia judges were sworn to do justice "as near as may be" to the English law,(20) and their "happiness--(was) exemplified--by legal trials by juries in all criminal and civil causes."(21)

At no time did the early Virginia colonists seek to put the letter of the English common and statute law into effect. In 1620 they sought to select only such laws from the mother country as were applicable to conditions in the colony, and thereafter persisted in such purpose.(22)

Under the influence of the clergy, the administration of justice in early New England, especially in the Massachusetts colony, was very inquisitorial. The ministers and magistrates vigorously opposed the enactment of a body of statute laws. They preferred to supplement the common law of England by decisions based on the old testament.(23) Winthrop relates that in 1635,

"The deputies having conceived great danger to our state, in regard that our magistrates, for want of positive law, --might proceed according to their discretions, it was agreed that some man should be appointed to frame a body or grounds of laws, in resemblance to Magna Carta, which being allowed by some of the ministers, and the general court should be received for fundamental laws."(24)

Again in 1639,

"the people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of the magistrates. Divers attempts had been made at former courts, etc."(25)

Throughout these years and up to 1641, the magistrates, who, as described by Governor Winslow, were "Ministers of God --revengers to execute wrath on him that doth evil,"(26) were "not --very forward in this matter."(27) They were utterly opposed to the abrogation of any of the authority and discretion which they exercised.(28) Notwithstanding this opposition, the Massachusetts Body of Liberties came to be a reality in 1641.(29) But after these laws left the hand of the draftman, Nathaniel Ward,(30) they were probably altered by the magistrates,(31) and the colonists for many years thereafter lived under laws of their own making and its judges were less hedged about and embarrassed by the English common law than the Supreme Court of the United States now professes to be.(32)

Through the succeeding years justice, in all of the colonies, was as near the common law as their understanding would permit and their situation would justify.(33) It is refreshing to note, however, that in contrast with out later day disciples of Blackstone who proclaim that, in our independent condition, the common law of America is the common law of England prior to 1776, the colonists everywhere in the main part sought to adopt the virtues of the common law and not its unwise or unadaptable provisions.(34)

No one seems to know the reason why American Judges have so completely ignored, or chilled with judicial over-sight the progress that took place in American colonial law prior to our independence. It is an astounding fact that the American people have lived under laws and made laws both common and statute, for 327 years, yet our Judges and historians give us credit for only 145 years of legal history.

Just prior to the American Revolution English publishers were selling nearly as many Blackstone Commentaries in the American Colonies as in England.(35) Hundreds of copies of the Philadelphia edition of Blackstone's Commentaries of 1772 had been subscribed for in Virginia before it came from the press.(36) The colonial laymen prior to the revolution were well educated as to their rights as Englishmen under the law, and the deprivation of those rights by the mother country may have been the cause for the over zealous worship by our early American Judges at the altar of the English common law, and our modern Judges are their faithful disciples.



The settlement of the English colonials in the new world took place at a time in English History when opposition to the ex-officio oath of the ecclesiastical courts was most pronounced, and at the period when the insistence upon the privilege against self-incrimination in the courts of common law had begun to have decided effect. So in discussing the colonial development of this privilege not to incriminate oneself, it is necessary to pick up the threads in England and follow them into the colonies. During the years between 1629 and 1640, the tyranny of Charles I and the zealous persecutions of Archbishop Laud of Canterbury made the conditions of the Puritans and Separatists unbearable. Innumerably little congregations of these people were tracked out and broken up throughout the realm of England. To them a forced show of outward conformity was a mere shell that concealed hearts festering with hatred both for the Established Church and for the means which had been and were being used to foster it and thereby sadden their own existence. The ex-officio oath, as employed in the ecclesiastical courts, which regulated the most intimate details of men's daily life, and more particularly by the Court of High Commission, was possibly the most hated instrument employed to create the unhappy plight of these Puritans and Separatists. As early as 1604, when the cannons of the Anglican Church were drawn up, puritans had voiced a protest against the ex-officio oath. By 1637, the crisis had come. The trial of John Lilburn (1637-1645)(37) focused the attention of the whole of England upon the proceedings in the Star Chamber, High Commission and other courts using ex-officio proceedings wherein persons accused were forced by oath or other compulsion to speak truly and confess their own delinquency. The obstinancy on the part of John Lilburn in refusing to take oath or to answer against himself was merely representative of a like attitude on the part of hundreds of others who likewise refused to be sworn or, being sworn, refused to answer.(38) This rebellion against a system or procedure had reached such proportions by the time of Lilburn's trial that Charles I seemed to be wavering between despair and indignation. In his letter to the High Commission February 4, 1637,(39) he was insistent upon continued observance and reassuring upon the question of validity. He demanded that these non-conformists, who, incidentally, were making up the ship lists to New England who according to Charles I had

"Withdrawn themselves from their obedience to our ecclesiastical law, into several ways of separation, sects, schisms and herecies,"

and who had,

"grown to that obstinancy--that some of them refuse to take their oaths, and others being sworn, refuse to answer--"

should be forced

"to answer upon their oath in causes against themselves --and also to answer interrogations touching their own contempts and crimes objected against them, which course in those courts (Courts of Star Chamber, Chancery, or Courts of Requests and Exchequer) (is) daily practiced and held agreeable to the laws and customs of--(the) realm."

He commanded further that the High Commission should proceed to bring these refractory people before them where they were to be

"enjoined to take their corporal oaths and by virtue thereof, to answer to such articles and interrogatories as shall be there objected against them,"

and then if those accused refused to be sworn or being sworn refused to answer, they were to be declared by the Commission

"pro confesso--held and had as confessed and convicted legally."(40)

What more than this would be calculated to drive the Puritans and Separatists into either New England or insanity? It was certainly enough to cause them "to be ill affected and discontented as well with the Civill as the Ecclesiasticall Gouerment."(41) Such proceedings as the foregoing, are quite enough to explain the picture one gets, when reading the Acts of the Privy Council (1634-1640), of "divers ships--in the river Thames ready to set sail, freighted with passengers"(42) for New England.

About getting out of England there was much "red tape" and it consisted in the most part of taking oaths--the oath of Supremacy and the oath of Allegiance, etc.(43) For days and weeks thousands waited aboard ship in the river Thames until this oath ordeal was over and after that they were forced with a refined cruelty to say the prayers in the Anglican prayer books twice a day at sea.(44)

The Long Parliament by a statute(44a) in 1641 abolished the Court of the Star Chamber and the Court of High Commission, but even this, midst the high tide of Puritan frenzy, was like throwing a tub to the whale. Those who remained in England became zealous crusaders in Cromwell's Army and achieved a revolution. After the most decisive fighting was over, this strange army became impatient and began to insist that the fruits of victory should be vouchsafed to posterity. In all of the declarations, demands and proposals which were sent up to the General Council direct from the army camps around 1647, we find standing out in bold relief the demands for the complete abolishing of all the ecclesiastical proceedings, under which the hated oaths were required and self-incrimination forced, and for a complete protection against enforced testimony in all courts. For example, in the "Declaration" of the Army, (1647)

"containing the particulars of their desires in pursuance of former declarations and papers, in order to the clearing and securing of the rights and liberties of the Kingdom, and the settling of a just and a lasting peace. To which are added some further particular desires for the removing and redressing of divers present pressing grievances,"

the army demanded that,

"An Act--be passed to take away all coercive power, authority and jurisdiction of Bishops and all other Ecclesiastical officers, whatsoever intending to any civill penalties upon any; and to repeal all laws whereby the Civil Magistrate hath been, or is bound, upon any Ecclesiastical censure to proceed (ex-officio) unto any civill penalties against any person so censured."(45)

Also in the "Case of the Army Truly Stated" (1647), they insisted,

"That all statutes enjoining the taking of oaths, as in towns corporate, the oath of Supremacy, &c. wherein either the whole oaths or some clauses in them are burthem and snares to conscientious people may be repealed and nulled"--(Also)--"That it be declared that no person or court shall have power or be permitted to enforce any person to make oath, to answer to any Interrogatories against himself in any criminal cause."(46)

Cromwell's army was not alone in agitating for the privilege against self-incrimination. The entire revolutionary forces were consciously seeking it. The great body of English Citizens known as the Levellers presented "The Humble Petition of Many Thousands" to Parliament in 1647 demanding the enactment of revolutionary constitutional changes to accord with the principles and reforms which Lilburn, Walwyn and Overton had been advocating. That petition contained thirteen demands. The demand for the privilege against self-incrimination was number 3 as follows:

"Thirdly, that you permit no authority whatsoever to compell any person or persons, to answer to any questions against themselves or neerest relations except in cases of private interest between party and party in a legall way, and to release such as suffer by imprisonment, or otherwise, for refusing to answer to such interrogatories."(47)

The Puritan agitation for the privilege against self-incrimination progressed rapidly and with heated intensity from 1637 through the 1650's. Anterior to the commonwealth torture was used as a matter of course in grave accusations at the mere discretion of the King and the Privy Council and with no restraint other than the prerogative of the sovereign.(48)

The trials of John Lilburn (1637-1645),(49) the trials of the twelve Bishops (1641),(50) King Charles Trial (1649),(51) and Scroop's trial (1660)(52) all illustrate how the privilege against self-incrimination settled into the bed rock of the English common law. In the early 1650's this privilege was so well established in the customary law of England that it was never even thought necessary by any English Parliament to pass an act or resolution touching the matter.

The implications to be found in WIGMORE ON EVIDENCE, Section 2250, and in the case of Twining v. New Jersey, 211 U. S. 78, to the effect that the privilege against self-incrimination was never regarded in England as the constitutional land-mark that our own constitution makers of 1789 regarded it, seems unjustifiable. No constitutional documents came out of the Puritan revolution and the civil convulsion immediately following it. By the time of the English Bills of Rights of 1689, the privilege had become so well established and universally recognized that to have inserted it would have been very much like re-affirming the law of gravitation. McCauley, the English historian, seems nearer correct when he cites Fortescue and says:

"Torture was not mentioned in the Petition of Right, or in any of the statutes framed by the Long Parliament. No member of the Convention of 1689 dreamed of proposing that the instrument which called the Prince and Princess of Orange to the throne should contain a declaration against the using of racks and thumbscrews for the purpose of forcing prisoners to accuse themselves. Such a declaration would have been justly regarded as weakening rather than strengthening a rule which--had been proudly declared by the most illustrious sages of Westminster Hall to be a distinguishing feature of the English jurisprudence."(53)



Coming back now to the development in Puritan New England, we are faced with a series of questions; Was this puritan agitation for the privilege against self-incrimination confined to England? Was there something in the new world that changed the puritan's whole mental attitude on this matter? And did they re-institute here the very instruments that did so much to drive them out of England? Or did they establish the privilege against self-incrimination as their kin and kind in England were seeking to do, all the way from hearthstones to campfires? These questions seem to cry out their own answers.

Professor Wigmore, answers these questions as follows:

"It (the privilege against self-incrimination) remained an unknown doctrine for this whole generation (after 1641) in the colony of Massachusetts.--In this colony, the privilege which began its career after the departure of its founders from England, was unrecognized till at least as late as 1685; more; they formally sanctioned the ecclesiastical rule by which the inquisitional oath was allowed."(54)

History does not sustain that conclusion. Before the storm of the Puritan Revolution had passed in old England the privilege against self-incrimination had become a cherished reality in New England.(55)

The Puritan opposition to testamentary compulsion and the attempts at enforced conformance to the established church, came to be manifested in two distinct theatres around 1640, one in the forests of New England, the other in the Puritan revolution at home. The same motives that led the early New England colonists to leave their homeland and seek a new life and a freer existence in a new world, also actuated Cromwell's soldiers during the revolution. The New England magistrates, claiming authority from God, were the only dissenters when the colonists sought to clothe their ideas of adequate protection in the language of the Body of Liberties. The provisions of the Body of Liberties enacted in 1641 afforded the colonists complete protection against compulsion, either by torture or by an oath, to confess their own delinquency. Liberty No. 45 is as follows:

"No man shall be forced by torture to confess any crime against himself nor any other unlesse it be in some capital case where he is first fullie convicted by clear and suffitient evidence to be guilty, after which if the cause be of that nature that it is very apparent there be other conspirators or confederates with him, then he may be tortured, yet not with such torture as be barbarous and inhumane."(56)

Liberty No. 61 provides that no person,

"shall be bound to inform, present or reveale any private crime or offence, wherein there is no perill or danger to this plantation or any member thereof, when any necessarie tie of conscience bind him to secresie grounded upon the word of God, unlesse it be the case of testimony lawfully required."

Liberty No. 58 provides that civil authority has power to enforce,

"the rules of Christ--according to his word so it be done in a civill and not in an Ecclesiastical way."

Liberty No. 3 provides that,

"No man shall be urged to take any oath or subscribe any articles, covenants or remonstrances of a publique and civill nature, but such as the general court hath considered, allowed and required."(57)

Though this privilege, as it appears in Liberty No. 45 after going the round of the magistrates, is so qualified as to sanction torture after conviction, much like the "question definitive" as known to continental procedure prior to 1789, it ended judicial torture.(58) It produced an enormous effect in the criminal procedure of Massachusetts. The Records of the Court of Assistants (1630-1692) reveal that up until the later body of most persecuted puritans arrived with the consequent agitation for this protection, there were, relatively, many more confessions than there were after it became an effective law.(59)

The Massachusetts people, augmented by these hoardes fresh from the seething cauldron created by Charles I and Archbishop Laud were undoubtedly insisting that this provision of the Body of Liberties should give full effect to the maxim "nemo tenetur prodere seipsum". The magistrates and officials at any rate appeared to have been keenly embarrassed by it. In 1642, Richard Bellingham, Deputy-Governor of Massachusetts, who had been assigned to "peruse the laws", with a view to revision wrote to Governor Bradford of Plymouth propounding the following questions:(60)

"Quest. (2) : How farr a magistrate may extracte a confession from a delinquente, to accuse himselfe of a capitall crime, seeing nemo tenetur prodere seipsum," and "Quest. (3) In what cases of capitall crimes one witness with other circomstances shall be sufficiente to convict? or is there no conviction without two witnesses."(61)

Governor Bradford turned these questions over to three of his ministers to be answered. Their answers gave very little consolation to the Massachusetts officials as the majority view (two to one) was that in no cause could physical compulsion be used; and the unanimous opinion was that to give an oath to answer truly was against both the laws of man and the laws of God. To the first point, Mr. Partich answered in part:

"A magistrate is bound--to sifte ye accused and by force of argument to draw him to an acknowledgmente of ye truth; but he may not extracte a confession--by any violent means--by any punishmente inflicted or threatened to be inflicted, for so he may draw forth an acknowledgmente of a crime from a fearfull inocente; if guilty he shall be compelled to be his owne accuser, when no other can, which is against ye rule of justice."

John Reynor answered in part:

"To inflicte some punishment meerly for this reason, to extracte a confession of a capitall crime, is contrary to ye nature of vindictive justice, which always hath respect to know crime committed by ye person punished."

He added that the magistrate might be "provoking and forcing to wrath" but could not get a confession by as much as "ye wringing of ye nose."

Mr. Chauncey answered that there might be torture

"in maters of highest consequence, such as doe concerne ye saftie or ruine of state or countrie--especially when presumptions are stroange; but otherwise by no means."(62)

All of these ministers agreed that no inquisitional oath could be given. Mr. Reynor:

"That an oath (ex-officio) for such a purpose is no due means hath' been abundantly proved by ye godly learned and is well known."

Mr. Partich:

"He (magistrate) may not extracte a confession -- by any violente means, whether it be by an oath imposed, or by any punishment inflicted."

And even Mr. Chauncy:

"If it be mente of extracting by requiring an oath (ex-officio) as some call it--I fear it is not safe, nor warranted by God's word, to extracte a confession from a delinquente by an oath."

From these opinions it is apparent that the Puritan mind placed the ecclesiastical oath in the category of "tortures" just as it did the rack, the boot and the thumbscrew.

These opinions stand for the reverse of Professor Wigmore's conclusion that the inquisitional oath was allowed in this colony as late as 1685. This view of the matter is supported by the early Massachusetts colonial decisions.(63)

There was probably much dissatisfaction with provision 45 of the Body of Liberties, which still sanctioned torture to a limited degree. Certainly the limitation upon it did not meet the favor of those who left Massachusetts and went out to Connecticut. When Roger Ludlow and others framed a code of laws for Connecticut in 1650 and thereafter, which was based largely upon the Massachusetts Body of Liberties,(64) they adopted the Massachusetts provision against torture without the qualifying words. It was as follows:

"It is ordered by the authority of this court that no man shall be forced by torture to confess any crime against himself."(65)

The majority of the early Virginians were strict conformists, and they did not hesitate to fortify themselves against such sects as Quakers and Puritans.(66)

It is probable that the ecclesiastical oath, ex-officio, was required and administered in that colony as late as 1640.(67) This practice probably ended under the rule of Cromwell's three Puritan governors after 1652, and possibly the privilege against self-incrimination then came into being also. The common law was adopted by a legislative act in Virginia in 1661.(68) The Puritan hatred for oaths and enforced testimony was having its effect in Virginia prior to 1661. Possibly one reason for this was the great influx of Puritans who came as prisoners and indentured servants both before and after the Commonwealth.(69) These Puritans, many of them Cromwell's old soldiers, and their descendants could be found in every "Servants plot" and insurrection which had for its purpose the restoration or establishment of the rights of man(70) and when caught in the act they were not prone to tell everything they knew.(71) Many of them were soldiers and leaders in "Bacon's Rebellion" in 1677.(72)

Immediately after the suppression of the rebellion and the end of Governor Berkeley's reign of carnage, the privilege became definitely settled in Virginia law. It is possibly significant that it was in the Grand Assembly, called together in special session to settle some of the most pressing matters resulting from Bacon's Rebellion,(73) that this matter was brought up. The time and manner of bringing up the question and the very language expressing the privilege itself point to some recent deprivation of it which at this early day was regarded as an outrage.(74)

The enactment (Oct. 1677) is as follows:

"Upon a motion from Accomac County, sent by their burgesses, it is answered and declared that the law has provided that a witness summoned against another ought to answer upon oath, but noe law can compell a man to sweare against himself in any matter wherein he is lyable to corporal punishment."(75)

This was both a judicial determination and a legislative act as the House of Burgesses acting with the Governor and Council was a court of last resort until 1682, officially, and until 1684, actually.(76) It seems clear that this declaration was no more than an affirmance of a settled rule in Virginia colonial law.

It was appropriate that this motion should come from Accomac, a loyal county, as it was there that Berkeley, through the instrument of illegal court martial and civil tribunal trials, put to death a number of persons.(77) The privilege, which had probably been in existence in Virginia a generation before 1677 no doubt received this late affirmance because of Berkeley's indiscriminate giving of oath and tortures, after the suppression of the rebellion, to convict the leaders. Indeed, one of Berkeley's last official acts was to send a negro (in his own words) "to be racked, tortured or whipt till he confess how this dire misfortune happened."(78)

As we have seen, the privilege against self-incrimination to one accused came to be fairly well established in the New England colonies before 1650 and in Virginia shortly thereafter. The Virginia declaration of 1677 extended to witnesses called at the trials of others by express language. In Connecticut, by successive court orders and Assembly Acts in 1697, 1703, and 1711, the privilege was extended to witnesses couched in language which would lead one to believe that it had been recognized there long before these dates.(79) Provision No. 45 of the Body of Liberties, quoted supra, made no distinction between a witness and an accused as to immunity from torture. A Massachusetts province law of 1692 extended the privilege to witnesses in certain cases and also did so in such language as to point to an earlier recognition of it.(80) Colonial courts of Maryland were recognizing the privilege and extending it to cases where the witness might be subjected to a penalty prior to the Revolution.(81) It is probable that the extension of the privilege to ordinary witnesses came almost contemporaneously with that to one accused.

The much heralded Salem witch trials of the 1690's illustrate no principle of law. No lawyer participated in those trials. Torture was used to obtain confessions but it was not "judicial" torture. The records of the extra-judicial inquiries read as though torn from some Metropolitan police records of the twentieth century.

Before these trials, Cotton Mather instructed one of the judges in the technic of procuring confessions as follows:

"Now first a credible confession of the guilty wretches is one of the most hopefull wayes of coming at them  *  *  *  I am farr from urging the Un-English method of torture  *  *  *  but whatever hath a tendency to put the witches into confusion is likely to bring unto confession.  *  *  *  Here Crosse & Swift Questions have their use."(82)

"Crosse & Swift Questions" was the method used at first,(83) and it soon degenerated into the "unEnglish method of torture."(84) Many of the accused persons claimed their privilege not to accuse themselves but every human right and privilege became valueless before the driveling victims of mob insanity.

This privilege against self-incrimination came up thru our colonial history as a privilege against physical compulsion(84a) and against the moral compulsion that an oath to a revengeful God commands of a pious soul. It was insisted upon as a defensive weapon of society and society's patriots against laws and proceedings that did not have the sanction of public opinion. In all the cases that have made the formative history of this privilege and have lent to it its color, all that the accused asked for was a fair trial before a fair and impartial jury of his peers, to whom he should not be forced by the state or sovereignty to confess his guilt of the fact charged. Once before a jury, the person accused needed not to concern himself with the inferences that the jury might draw from his silence, as the jurors themselves were only too eager to render verdicts of not guilty in the cases alluded to.(85)



The real reason for the American insistence that the privilege against self-incrimination be made a constitutional privilege may possibly be traced to the proceedings of the prerogative courts of Governor and Council, which constituted the supreme colonial courts, and the proceedings instituted to enforce the laws of trade in the colonies.

As fast as the separate colonies became royal provinces, they seemed to lose the instruments of control over the administration of justice, and when, at the mere will of the royal Governor, an accused was called before the Governor and his council, which, without right often sat as a court of inquiry, their proceedings were very inquisitional and ofttimes overbearing. This was especially true in those cases which affected most vitally the relationship between sovereign and subject. The object of the Governor was, obviously, to procure confessions upon which either convictions of the delinquents could be secured before a jury or summary sentence imposed. Some such means was probably necessary because the accused would claim the privilege against self-incrimination before the jury and the colonial juries were hard to convince anyway in the cases alluded to.

Indeed, one of the grievances that preceded and obtained after Bacon's Rebellion in Virginia was the illegitimate influence over the administration of Justice exerted by Governor Berkeley,(86) and, as has been noted, it was out of this turmoil that the privilege against self-incrimination came to be definitely fixed in that colony.

One of the alleged grievances against Governor Andros that preceded the New England Revolution in 1689 was that "too frequent upon more particular displeasure to fetch up persons from very remote counties before the Governor and Council at Boston (who were the highest and a constant court of Record and Judicature) not to receive their tryal but only to be examined there, and so remitted to an Inferior Court to be farther proceeded against. The grievance of which court was exceeding great.  *  *  *  But these Examinations  *  *  *  were unreasonably strict and rigorous and very unduely ensnaring."(87) Those who insisted upon their privileges as Englishmen before this body "were severely handled, not only imprisoned for several weeks, but fined and bound to their good behavior."(88) It was held that Magna Carta and statutes protecting personal liberty had no application to New England.(89)

When Thomas Maule was called before the Massachusetts Governor and Council in 1696 (Andros gone) on a charge of publishing seditious matter against the clergy and officials for their conduct in the witchcraft cases principally, he successfully refused to answer any questions and successfully demanded to be tried in his own county by a jury of his peers.(90)

Around the 1690's there were many grievances against the royal government in Pennsylvania for depriving the people of their express charter rights. In 1689, William Bradford was procured to print the charter so as to inform the people of their rights. After its anonymous publication, Bradford, who was the only printer in Pennsylvania, was summoned before the Governor and Council who sought to establish his guilt by procuring a confession. Fortunately, we have access to the record of this examination which illustrates the manner of proceedings. The following is a part of it.

"Gov. (Blackwell)  *  *  *  I desire to know from you, whether you did print the charter or not, and who set you to work?"

"Bradford--Governor, it is an impractible thing for any man to accuse himself, thou knows it very well."

"Governor--Well, I will not press you to it, but if you were so ingenious as to confess, it should go the better with you."

"Bradford--Governor, I desire to know my accusers; I think it is very hard to be put upon accusing myself."

"Governor--Can you deny that you printed it? I do not know you did print it and by whose directions, and will prove it, and make you smart for it, too, since you are so stubborn."

  (Here in the exchange Bradford insisted that the people should know their rights.)

"Governor--There is that in that charter which over-throws all your laws and privileges. Governor Penn hath granted more power than he hath himself."

"Bradford--That is not my business to judge of or determine; but if anything be laid to my charge, let me know my accusers. I am not bound to accuse myself."

In this same investigation Governor Blackwell sought incriminating evidence from one Joseph Growdon but was successfully met with a claim of the privilege.(92)

Around 1700 Governor Cornbury of New York denied that the Bills of Right and Act of Toleration applied to New York.(93)

In the late 1600's Virginia colonists were constantly complaining of the deprivation of their liberties by their Governors.(94)

Around 1700, Lieutenant Governor Nicholson of Virginia was charged with examining witnesses against men ex parte; and, if the witnesses did not swear up to what was expected, they were "tampered with."(95)

On the very eve of the Revolution, Governor Dunmore of Virginia was hailing those accused of forging paper currency before himself and his Council and was there making examinations in a very inquisitorial manner. The Virginia House of Burgesses, in which sat the majority of those who adopted the first Bill of Right and Constitution in America and of those who first made the privilege against self-incrimination a constitutional one, made violent protests. They informed the Governor by special resolution that his proceeding was "different from the usual mode, it being regular that an examining court on criminals be held, either in the county where the fact was committed, or the arrest made."

Then they added:

"The duty we owe our constituents obliges us to be as attentive to the safety of the innocent as we are desirous of punishing the guilty; and we apprehend that a doubtful construction and various execution of criminal law does greatly endanger the safety of innocent men."(96)

It is well known how the colonists protested against the provisions of the Stamp Acts, the Townsend Acts and the other laws of trade and coercion just preceding the outbreak of war, man of which provided for trial without a jury in certain cases. They saw in the Vice-Admiralty jurisdiction which was extended to the colonies to enforce the laws of trade sinister evils. They saw in the trials before prerogative judges without juries a threatened deprivation of all their rights as Englishmen among which was the right not to be dragged into an "Inquisitional Court" for examination.(97) Nowhere were protests quite so pronounced on this point as in Virginia.(98) The earlier attempts at colonial espionage by the Governors and Councils and, at the close of the colonial period, the attempts of the English crown to enforce laws, deemed bad within themselves, by means of prerogative courts without the intervention of juries, reopened old questions that had been settled in England and in the colonies more than a century before. This precipitated a situation where only a reaffirmation of this privilege against compulsory self-incrimination would satisfy the colonial idea of complete protection.

Just before the outbreak of the Revolution, it was thought by many that a conflict would be avoided if England would consent to accord the colonies some sort of a Bills of Right.(99) When the conflict was assured, the colonists were quick to adopt the instrument which they had conceived to be necessary for the protection of the essential rights of mankind. Virginia adopted George Mason's draft of a Bills of Right on June 12, 1776 (22 days before the Declaration of Independence) by a unanimous vote.(100) This was the first thing of its kind in all history and was widely copied both here and abroad.

Section 8 provided in part:

"That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicintage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself.  *  *  *  "

Although Maryland had extended the privilege to accused loyalists and witnesses in May 1776.(101) When she came to adopt her Bills of Right in November, many of the delegates opposed it altogether. When the draft of the provision giving the privilege finally came from the committee in this form:

"That no man ought to be compelled to give evidence against himself in any court of common law, or in any other court, but in such cases as have been usually practiced in this state."

the delegates voted it down; and in the last hours of the convention "or may hereafter be directed by the legislature" was added to save it from being lost.(102)

Pennsylvania, Vermont and North Carolina adopted the Virginia draft of the privilege in the same words and in practically the same context thus showing the servile hands of copyists.(103)

The Massachusetts committee to whom the relevant section was referred had some difficulty in agreeing upon the proper form for the privilege.(104) As finally adopted, it reads:

"No subject shall be  *  *  *  compelled to accuse or furnish evidence against himself."

New Hampshire copied the Massachusetts draft.(105)

The Federal Constitution had been adopted by the necessary nine states before any one proposed the privilege as one of the amendments. Each of the four remaining states, namely Virginia, North Carolina, Rhode Island and New York, proposed it.(106)

In all of the debates on the Federal Constitution in the adopting conventions, there were but few allusions to this privilege, and, when mentioned, it was mentioned as a privilege against torture.(107)

But the fact remains that the privilege was adopted as a part of Art. V of the Federal Bills of Right. It is as follows:

"No person  *  *  *  shall be compelled in any criminal case to be a witness against himself."

When the Federal Government was organized, a situation existed in respect of conflict of interests, jurisdiction and authority somewhat analogous to that previously existing in the relations of the crown and the colonies. This was aggravated by the fact that the Federal Government was not to be bound by the rules of common law. Patrick Henry gave expression to his views on the question as follows:

"Congress may introduce the practice of the civil law in preference to that of the common law.  *  *  *  They may introduce the practice  *  *  *  of torturing to extort confessions of the crime.  *  *  *  They will tell you  *  *  *  that they must have a criminal equity, and extort confessions by torture, in order to punish with still more relentless severity."(108)

The provision of the Federal Bills of Right against compulsory self-incrimination not only was an answer to numerous instances of colonial misrule but also was a shield against the evils that lurk in the shadows of a new and untried sovereignty.

R. Carter Pittman.


1. In Twining v. New Jersey, 211 U. S. 78, Justice Moody said: "At the time of the formation of the Union the principle that no person could be compelled to be a witness against himself had become embodied in the common law and distinguished it from all other systems of jurisprudence. It was generally regarded then, as now, as a privilege of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions. Five of the original thirteen states (North Carolina, 1776; Pennsylvania, 1776; Virginia, 1776; Massachusetts, 1780; New Hampshire, 1784) had then guarded the principle from legislative or judicial change by including it in Constitutions or Bills of Right; Maryland had provided in her Constitution (1776) that 'no man ought to be compelled to give evidence against himself, in a common court of law, or in any other court, but in such cases as have been usually practised in this state or may hereafter be directed by the legislature;' and in the remainder of those states there seems to be no doubt that it was recognized by the courts. The privilege was not included in the Federal Constitution as originally adopted, but was placed in one of the ten amendments which were recommenced to the states by the first Congress, and by them adopted. Since then all the states of the Union have, from time to time, with varying form, but uniform meaning, included the privilege in their Constitutions, except the states of New Jersey and Iowa, and in, those states it is held to be part of the existing law. State v. Zdanowiez, supra; State v. Height, 117 Iowa, 650."


3. Scotch Claim of Rights (1689): "That the forcing the lieges to depose against themselves in capital crimes, however, the punishment be restricted is contrary to law." And it goes on "That the using of torture without evidence or in ordinary crimes, is contrary to law."

4. MACAULAY'S ENGLAND, Vol. II, pp. 264-265.

5. IV WIGMORE, EVIDENCE, sec. 2250, p. 817 n.


7. FRANKLIN'S WORKS, Vol. VIII, p. 214. Franklin writes (May 1777) "They (the French) read the translations of our separate colony constitutions with rapture."

8. Ibid., Vol. IX, p. 39.

9. ROMILLY MEMOIRS, Vol. I, p. 50.

10. SOULAVIE MEMOIRS, Vol. Ill, p. 411; MORRIS DIARY & LETTERS, Vol. I, pp. 68, 114--La Fayette heard Gen. Greene extend the privilege to Major Andre in 1780 (CHANDLER CRIM. TRIALS. Vol. II, p. 168).

11. Moniteur Univ. Seance du 8 Aout 1789.

12. Cit. supra. Also Moniteur Univ. Seance du 27 Juillet 1789 (Tollendal speaking).


14. GREEN, HIST. ENG. PEOPLE, Vol. IV, pp. 114-116.



17. FORCE, HISTORICAL TRACTS, Vol. Ill, Tract II, p. 6.

18. FORCE, HISTORICAL TRACTS, Vol. Ill, Tract II, p. 12. This form of torture was used in Virginia as judicial punishment far into the 17th century. Gen. Court Records, Va. Magazine of History. It was used to extract confessions in the Salem witch trials in 1692. CHANDLER, CRIMINAL TRIALS, Vol. I, pp. 89, 112.


20. 20 HENNING, STATUTES AT LARGE, Vol. I, p. 168.

21. FORCE, HISTORICAL TRACTS, Vol. II, Tract VI, p. 4.



24. WINTHROP, HIST. OF NEW ENG., Vol. I, p. 191.

25. Ibid., p. 388.

26. Winslow, "Hyprocrisie Unmasked" (1646) (pamphlet). See also: Sir Henry Vane, "A Healing Question" (pamphlet) (1656) wherein the magistrate is referred to as "A minister of terror and revenge."

27. WINTHROP, Vol. I, p. 389.

28. John Winthrop, "Arbitrary Government Described" (pamphlet) (1644).

29. WINTHROP, Vol. II, p. 66.

30. Ibid., Vol. II, p. 66.

31. Ibid., Vol. I, p. 389, Note. This is a possible explanation why some of these 100 provisions start off like a Bill of Rights provision and end like a prerogative decree.

32. Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 8 Sup. Ct. 564; Funk v. United States, 54 Sup. Ct. 212.

33. FORCE, HISTORICAL TRACTS, Vol. III, Tract XIV, p. 15; Brit. Colonial Papers, Vol. XVI, p. 78; HENNING, various statutes.

34. Virginia Magazine of History, Vol. I, p. 26 (Va. 1684) (6 Jurors of Vicintage of the fact, and 6 bystanders constituted a good and lawful jury); Ibid., Vol. IV, p. 195 (Va. 1679) ; King v. Harrison, 2 Barradall 66 (Va. 1737). Common law rule as to gates on the highway being a nuisance not applicable on grounds of differing conditions. Va. Mag. Hist., Vol. V, p. 57 (Va. 1666), Pleadings easy and "no advantage--allowed to either party from little errors in declarations or pleas." MERCER, LAWS OF VA., p. 283 (1749). Jury of Bystanders only in case of transported felons. Ring v. Buswell, Vol. V. Record Quarterly Court Essex County 148 (1789 Mass.), parties to civil suits allowed to testify on oath. Many other innovations in Mass. may be found in; "Mass. and the Common Law" AMER. HIST. REV., Vol. XXXI, p. 450. The Supreme Court very recently in the case of Funk v. United States, 54 Sup. Ct. 212, went to great length in its citations and discussion of authorities sustaining the proposition that the common law is flexible and adaptable to varying conditions. Certainly nothing happened during or after the American Revolution that bound us to English made rules of common law more firmly than we were bound before that time. Why should the experience of our colonial forbears that enabled them to reach that same conclusion be completely disregarded?

35. Burke, Speech on Conciliation (1775).

36. WILLIAM & MARY QUARTERLY, Vol. I, 2nd ser., p. 183.

37. 3 HOWARD ST. TRIALS 1315; WIGMORE, sec. 2250.

38. King Chas. I letters to the High Commission Court (1637). HAZARD, STATE PAPERS, Vol. I, p. 428; (Rymer, Vol. XX, p. 190.)

39. Supra 38.

40. Supra 38.

41. Acts of the Privy Council, Vol. I colonial ser., pp. 199-201.

42. Ibid., pp. 199-201 (1634); pp. 227-8 (1638).

43. Supra note 42; HAZARD, Vol. I, pp. 421, 434; (Rymer, Vol. XX, p. 143) (1637) p. 223 (1638).

44. Acts of Privy Council, pp. 199-201, 227-228.

44a. 16 CAR. I, cc. 10, 11.

45. "A Declaration" from Sir Thos. Fairfax and his councill of warr (1647 pamphlet).

46. "The Case of the Army Truly Staled," (1647), (pamphlet); Rushworth papers (1646-1648); Clarke papers (1646-1648) ; GODWIN, HISTORY OF THE COMMONWEALTH (1646-1648).

47. WILLIAM HALLER, TRACTS ON LIBERTY IN THE PURITAN REVOLUTION, Vol. 3, p. 403. See also, "A Remonstrance of many thousand citizens to their own House of Commons" (1646), pamphlet, p. 361; WILLIAM HALLER, Vol. 3, p. 361.


49. 3 HOWARD STATE TRIALS, 1315; 4 HOWARD STATE TRIALS, 1269, 1280, 1292, 1342.


51. 4 HOWARD STATS TRIALS, 993, 1101.

52. 5 HOWARD STATE TRIALS, 1034, 1039.


54. WIGMORE, EVIDENCE, Vol. IV, sec. 2250.

55. Bradford, History of Plymouth Plantation, Mass. Hist. Soc. Coll. Ser. 4, Vol. 3, pp. 390-397.

56. WHITTMORE, COL. LAWS OF MASS., pp. 32-61; MASS. HIST. COLL., 3 set., Vol. VIII, p. 2247.

57. The use of the compurgation oath came to be prevalent in the colonies extended apparently to only one situation. Throughout the American, colonies, dishonest fur traders and woods "runners" were in the habit of getting Indians drunk and exchanging a little liquor for many hides. Lionel Gatford, "Public Good without Private Interest" (1657) (pamphlet). LAWS OF NEW NETHERLANDS (1638-1664), p. 383. This caused much trouble and to meet this situation laws were passed in a number of the colonies providing that if one accused of selling liquor to Indians did not purge himself by a compurgation oath, he would be taken confessed, and usually would be fined. Such laws were enacted in New York in 1660, (LAWS OF NEW NETHERLANDS (1638-1664) p. 383), and 1662, (LAWS OF NEW NETHERLANDS (1638-1664) p. 425); in Connecticut in 1669 (Colony of Conn. Public Records, Vol. II, p. 119); in Plymouth in 1673 (Plymouth Colony Records, Vol. XI, pp. 234-235); and in Massachusetts in 1693 (MASS. PROVINCE LAWS, Vol. I, p. 151). Possibly this tendency in the colonies indicates nothing more than a sensible means of meeting a difficult situation.


59. Records, Court of Assistants (Mass.), Vol. II.

60. Bradford, Hist. of Plymouth Plantation, Mass. Hist. Soc. Coll. ser. 4, Vol. 3, pp. 390-397.

61. One of the provisions of Body of Liberties: "47. No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereto." Note (42) supra: The Plymouth Colony had a like provision (1636). GEN. FUNDAMENTALS OF PLYMOUTH COLONY, p. 408. To this question it was answered: "In taking away ye life of man one witness alone will not suffice, ther must be tow--ther may be conviction by one witness, and yt hath he force of another, as ye evidence of ye fact done by such a one, and not another; in forced confessions when there was no fear or danger of suffering for ye fact."

62. Even this opinion sanctions torture to no greater extent possibly than was being used on spies in England as late as 1673. (Williams Senior, DOCTORS COMMONS AND THE OLD COURT OF ADMIRALTY, p. 102.) Limiting tcrture to such cases, it would probably be sanctioned today. Much depends upon one's concept of what concerns "ye saftie or ruine of state." It was not until 1695 that the privilege against self-incrimination was granted to prisoners charged with treason in England. 7 WM. III., c. 3.

63. Trial of Ann Hutchinson, 1 HART. AMER. HIST. TOLD BY CONTEMPORARIES 382; I CHANDLER CRIM. TRIAL 1; Winslow, Hypocrisie Unmasked (1645).

64. Col. Records of Conn., Vol. I, p. 511.

65. LAWS OF CONN. COLONY (1665 Ed.), p. 65.

66. HENNING, Vol. I, pp. 123, 149, 277.

67. Case of Anthony Penton (1640), VA. MAG. HIST., Vol. V, p. 123, Same case. ACTS OF PRIVY COUNCIL, Vol. I, col. series (1637), p. 269.

68. HENNING, Vol. II, p. 43.

69. WERTENBAKER, op. cit. supra, p. 93; I BLACKSTONE N. Y. Ed. 1858, p. 137, n. 14; MACAULAY, HIST. OF ENGLAND, Vol. I, p. 168.

70. VA. MAG. HIST., Vol. XV, p. 38; BEVERLEY, HIST. OF VA., p. 58; PEYTON, HIST. OF AUGUSTA CO., VA., p. 20; infra note 72.

71. VA. MAG. HIST., Vol. XV, p. 38.

72. BRITISH CALENDAR OF STATE PAPERS, Vol. IV, colonial series, p. 303; CAMPBELL'S HIST. OF VA., p. 282.


74. Newly-elected Burgesses commonly held a court of claims, at which the public stated their grievances that they might be heard and passed upon in the House of Burgesses. CAMPBELL, HIST. OF VA., p. 351.

75. HENNING, Vol. II, p. 442.

76. WERTENBAKER, pp. 241-242; Jour. House Burgesses, 24 April 1682 and Appendix.

77. BRITISH CALENDAR OF STATE PAPERS. Vol. IV, col. ser., p. 303.

78. VA. MAG. HIST., Vol. XXI, p. 370; DOYLE, ENG. COLONIES IN AMERICA, Vol. I, pp. 255-257.

79. CONN. COL. RECORDS, Vol. II, p. 236 (1692). Witnesses must testify on oath "always provided that no person requires to give testimony aforesaid shall be punished for what he doth confesse against himselfe when under oath;" Ibid., p. 410 (1703). Witness must answer on oath "so farre as it concerns any other person besides himselfe;" Ibid., Vol. V, p. 233 (1711), same, "provided that such evidence shall not be construed to his prejudice."

80. PROVINCE LAWS OF MASS., Vol. I, p. 57 (1692). "That any person duly summoned to give in evidence respecting the breach of this Act in any branches thereof (other than the party himself, his children or servants) that shall refuse to give in upon his oath when so required, what he knows relating to the premises, shall forfeit forty shillings to the use of the town."

81. Trammell v. Hook, 1 Harris & McHenry 163; Trammell v. Thomas, 1 Harris & McHenry 164.

82. MASS. HIST. SOC. COLL., Vol. VIII, 4th ser., p. 394.



84a. Thomas Jefferson thought the following a sufficient constitutional protection for Virginia in 1776: "The General Assembly shall have--no power to prescribe torture in any case whatever." Original Manuscript, N. Y. Public Lib.

85. Notes 90 and 91 infra.

86. WERTENBAKER, pp. 137-140.

87. NARRATIVES OF THE INSURRECTION, p. 246. The proceedings of Andros (pamphlet 1691). "By several gentlemen who were of his council."

88. FORCE, Vol. IV, Tract 8, pp. 14, 15.

89. Supra 88.

90. CHANDLER, CR. TRIALS, Vol. I, p. 144. The verdict of the Salem Jury was "not guilty." Ibid.

91. J. W. Wallace, Trial of William Bradford, p. 49 f. MSS. N. Y. Grolier Society; THOMAS, HIST. OF PRINTING. At a later trial of Bradford before a jury on a similar charge, Bradford's type, all set, was brought before the jury. While trying to read it, one of the jurors accidentally (?) turned a cock and spilt it all on the floor. Evidence destroyed--verdict: "Not guilty."


93. FORCE, HISTORICAL TRACTS, Vol. IV, No. 4, Makensies Tryal.

94. ACTS OF THE PRIVY COUNCIL, Vol. I, Col. Ser., pp. 636, 661.

95. VA. MAG. HIST., Vol. III, p. 378.

96. JOUR. HOUSE OF BURGESSES (1773-1776), p. 22.

97. Mason papers, Letter to London Merchants (June 1766); Bland, "Inquiry into the Rights of the British Colonies" (1776); WEST, AMERICAN DEMOCRACY, pp. 192-195. Declaration of Rights by delegates from colonies, New York (Oct. 7, 1765).

98. WEST, pp 194-195; Jour. House Burgesses (1773-1776).

99. FRANKLIN'S WORKS, Vol. VIII, p. 38 (1773).

100. Jour. Williamsburg Convention (1776).

101. Proceedings, Maryland Convention (1774-1776) May 13, 1776.

102. Ibid. (Nov. 1776).


104. Jour. Mass. Conv. (1779-1780).


106. ELLIOTT'S DEBATES, Vol. I, p. 319 f. Twining v. New Jersey, 211 U. S. 78.

107. VIRGINIA DEBATES, pp. 211, 318-321; ELLIOTT DEBATES, Vol. II, p. 111.

108. VIRGINIA DEBATES, p. 318.