Page:Harvard Law Review Volume 5.djvu/99

NEMO TENETUR SEIPSUM PRODERE. 83 tion, and the statutory exemption is recognized as applying in common-law courts as well as in others. 1 A brief space must suffice for referring to two other interesting aspects of our subject, — first, the origin of the maxim nemo tenetur, etc., as applied to the privilege in question ; secondly, the definition and limitation of the privilege, as it appeared in the common-law courts after the seventeenth century. The fact is that the maxim nemo tenetur was an old and estab- lished one in ecclesiastical practice. Experience had resulted in the adoption of a principle very similar to the common-law rule requiring a presentment in the shape of an indictment or an information, before a subject might be put upon his trial. It was the practice that whenever a prosecution was instituted by some informer or other third party, the oath need not be taken as to the crime charged (though questions on other matters were allowed) ; but if the Ordinary proceeded upon a presentment, the accused was obliged to purge himself by his oath as to criminis ipsius. The whole rule was embodied in the maxim, " Licet nemo tenetur seipsum prodere, tamen proditus per famam tenentur seipsum ostendere utrum possit sitam innocentiam ostendere et seipsum purgarey 1 This was the form of the rule about 1590 or 1600, when the struggle between the two jurisdictions was at its height. There was more or less pamphleteering on the sub- ject of the oath; and finally a judgment of nine civilians was given, establishing the lawfulness of the oath in canonical practice, and laying down the above rule. 3 As late as 1749 the influence of the same rule seems to have remained, for in a book of practice of that time 4 it is said, after referring to the defendant's privilege of non-crimination, that "if the fame of it is proved or confessed, the defendant ought to answer to the positions (charges), although they be criminal, or if he doth refuse, he is to be pronounced pro confesso, after being admonished to answer." The maxim nemo tenetur, therefore, never meant, in its proper sphere, what it 1 Rex v. Lake (Exch .), 1665, Hard. 364; Penrice v. Parker (Ch.) 1673, Finch; Anon., 1 Vern. 60, 1682 ; Bird v. Hardwicke, 1 Vern. 109 (1682) ; African Co. v. Parish 1691, 2 Vern. 844; Sir Basil Firebrass' Case (Ch.), 1701, 2 Salk. 550. 2 " Though no one is bound to become his own accuser, yet when once a man has been accused (pointed at as guilty) by general report, he is bound to show whether he can prove his innocence and to vindicate himself." 8 Strype's Whitgift, p. 339, App. 136, et passim. 4 Conset's Practice of Spiritual Courts, p. 384, part vii. c. 1, 6.