To every man his due; A freeman's privilege

Once there was a little boy George a little lad who would grow up to be a very big man big in stature big in status. Indeed he would loom large for all ages. But once he was a little boy your lie about whom a parson named weans would one day recount an immortal tale in precisely these words. Presently George and his hatchet made their appearance. Joy said his father. Do you know who killed that beautiful little cherry tree yonder in the garden. George bravely called out. I can't tell a lie PA You know I can't tell why I didn't cut it with my hatchet. Run to my arms my dearest boy cried his father in transport run to my on the ladder my George that you are my dream made me for I took all for such an act would be really something my son is worth more than a thousand dreams blossomed with silver and their fruit. You're as honest even against himself. Young George epitomized one of our traditional virtues at MIT your wrong

doings we tell our children. Confess and take the consequences like a man or like a boy named George Washington. But while one ought to admit his own wrong doings does it follow that one ought to be forced to do so. To illustrate. Suppose the Parson Weems story had gone like this. Who killed that beautiful little cherry tree yonder in the garden. Ha ha. George beseechingly cried out Don't do it. I implore you. And dawn upon his little eyes brimming with terrible tears. George did clasp his father about the leg. Don't do that boy. Just answer the question. Who chopped my tree. But by admitting that you did it and made it all right you wouldn't answer. I get it I get it. Yes yes yes. At last the truth. Please please put down the essential and inherent cruelty of compelling a person to expose his own

set of justice of the Supreme Court is obvious to everyone. Ed needs no illustration. To every man his a series of radio programs about the principles of justice. To every man his due is produced by radio station WAGA at the University of Wisconsin under a grant from the National Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. Now a free man's privilege. Nobody should have to accuse I'm SOL. No person shall become paled in any criminal case to be a witness against himself.

The Fifth Amendment to the United States Constitution parted the park which houses the privilege against self incrimination the constitutions of almost all the states contain similar provisions and in the remaining states statutes or judicial interpretations serve the same end. No one in this land or in any other Anglo-American law prevails is required to give incriminating testimony against himself. Not in any court action whether criminal or civil. Not before grand juries. Not before a legislative investigating committees or administrative agencies. No man is required to help is government convict himself of a crime. This is a free man's privilege. One of the great landmarks in man's struggle to make himself civilized. Dean Griswold of the Harvard Law School. We do not make even the most hardened criminal side his own death warrant or dig his own grave or pull the lever that

springs the trap on which he stands. Even the evil man is a human being. The privilege against self incrimination is an expression of one of the fundamental decency is in the relation we have developed between government and man. It's one thing for an individual freely to admit his own guilt. I cannot tell my pa I didn't job it with my hatchet. It's quite something else to force another to admit his guilt. Please please pock please put on my little hat to the government any government wields a weighty hatchet. The spectacle of government holding its hatchet over human heads compellingly human will toward its own hands is more than free man can stomach restraint respect for human dignity and integrity a cognizance of the inequality between itself and the individual and the injustice that inequality may breed. These are the requisites of

governmental character or at any rate such has been our traditional belief. We may also believe that a person guilty of some offense displays higher character by admitting his wrongdoings. But if he chooses not to that's his privilege. Our government we believe would only demean itself by forcing admission from him. But if the privilege against self incrimination restrains government from inhumane conduct toward guilty men it further restrains government from tyrannical conduct toward any man guilty or innocent. It is the Supreme Court once put it the result of a long struggle between the opposing forces of the spirit of individual liberty on the one hand and the collective power of the state on the other. The idea that a man should not be forced to accuse himself was conceived as early as the 12th century in England. But the idea while much voiced did not become law until well into the 17th century

in that century the hatchet hung heavily over the heads of Englishmen and all too often it fell almost every Wednesday and Friday in fact the hatchet could be expected to fall. The people went then stood in line before a long five Gable building across the courtyard from Westminster Hall on the bank of the Thames to watch the hatchet. On Wednesdays and Fridays. Man get no civil answer in this London. I ask you what day is this. And again to start de da de da de Can it be that London requires more days for its business than did the lord of creation eight days in a week it must play hob with the season long been week is but seven days and includes two star day they will stop the pain

if you are a performer you will think it is most probably if a spectator may think it well some spectacle I imagine doth transpire here where there are spectators there is a spectacle almost always and where there are performers there is performance who performs and nowadays Puritans aplenty opposing these are the grandees of the realm the night so that the judge's bench in scarlet. Such a spectacle you can scarce imagine where there are judges. I imagine there is Georgian justice come along the doors opening keep pace keep pace. Star days were court days in the five Gable building on the Thames when the Privy Council sat in a special court Prerogative Court growing out of ancient days when the government of England consisted solely of the King sitting with his counsel among the judges in the chamber stood an empty

chair blazing with the monarchs arms and before which lay the seal and makes a special and famous court it is called the Star Chamber Rocher Edward Cooke who performed there as Queen's and then king's attorney general and finally as the Lord Justice it is called the Star Chamber. In respect to the roof of the court which is garnished with golden star. You know records in Latin it is that some have imagined that it should be called the star chamber because Graham and I dare you not their hand on. This Saxon word whose rule and stuff the pilot. Deaf and govern the ship of the common way and other because it is full of windows the true cause of the name is because. The roof is stock.

Beneath the starry ceiling in this chamber there stood no jury box procedure here involved no jury no witnesses for prosecution and defense here persons charged with offense never capital offense were placed under oath and interrogated by judges who numbered from five to 15 out of the defendant's own mouth came the evidence which would either convict or acquit him. The judges who administered the questions also decided the case and passed sentence. The pillory for you my man set up before the House you were robbed in May your victim's spare you not permanent. How drunk could ride through the calm facing after the horse with the pluck all around your neck proclaiming the nature of your wickedness. You have no money with which to pay your fine of pity pay then with your body one year will suffice. Although Justice in The Star Chamber proceeded according to inquisitorial rather than accusatory methods the court had a

good reputation during the reign of Queen Elizabeth the most honorable court that is in the Christian world. The poor man's court in which he might have right without pay and money this most noble and praiseworthy court the beam of whose bright justice do blaze and spread themselves as far as the realm is long or wide. But then came sixteen three. Elizabeth died star chamber was repainted its faded blue ceiling brightened its stars freshly gilded a new order was under way. James Stewart succeeding Elizabeth would break a wise precedent seating himself in the royal flush upon that empty chair among the judges and under his son and successor Charles burst the star chamber would become a chamber of horrors. Last holiday a young man was sentenced to lose his right hand looked at all thinking for water since it appeared he did right. Well it's against the established church. Several there were that was

that day too who went to the pillory some of them to have their ears talked of having come out in questioning that they had listened to talk and protesting which was both theoretical and seditious. Persecution of Puritans was underway. People were jailed before star chamber court upon formal charge at all under a religious taken very seriously. Defendants were then interrogated by the judges in a process described by one scholar as poking about in the speculation of finding something chargeable wielded in the spirit of the hatchet fellow all too readily sketched likely Star Chamber justice may have sounded like this. You swear I answered truly such questions I shall here be put to you as a yes or no. Surely I should answer to you yet maybe you rightly said woman that whosoever be loyal to our sovereign debt be also a loyal and faithful in attending church to attend church where men go out

upon which Sunday do you. Well Mistress upon which Sunday did not attend church where you were in church on Sunday last. Oh yes but I did. And on the Sunday before that. Indeed he has mellowed. Did you attend church Madam upon the first Sunday in the month of July. Three months. It is hard to recollect a faithful church goer would have no trouble recollecting I I I do attend church most faithfully. Yes assuredly I must attend a church upon the first Sunday. July is upon every other day. How foolish was I to fall to sin and you would have brought on a Sunday when the plague was hard upon the city when all public gatherings were forbidden. You went to church. Who. No no I forgot to take a human what God wants in a perjury a witness arouses general mistrust. Therefore I return to an earlier question. You have said that you attended church two Sundays practice correct.

Yes tell me then I pray you what was the topic of the sermon upon that day Simon. Oh yes the sermon was is dwelt upon. Oh but I heard its every word. Oh I beg you not in the circumstances I'm driven right out of memory. You cannot remember because you were not there. I was I was you were there in the flesh but not in spirit. Perhaps your mind dwelt upon a different dog. I am no Puritan. This is your belief I am not that movie about the perjury. I hope I know just Pentagons the church no grievance against the sovereign I am a faithful servant you want to take her away. Star Tabor procedure which reached its lowest level under the Stuart kings stands as a classic demonstration of the injustice which may result when defendants are forced to incriminate themselves under oath. A defendant was

required to do what the government might better have done before bringing him to trial. Produce the evidence which would convict him of some offense. Bare suspicion suffice to bring him to court and bare suspicion may accrue to many an innocent person once under oath a defendant was at the mercy of questioners far more skillful than he and such a situation. Perjury stood as an ever present threat to his liberty and who might not even in more familiar circumstances forget the subject of a sermon two Sundays past. And can you say for a certainty what you did on the first Sunday of last July. And even if you could. Are you sure you could not be flustered out of memory of it if you stood in the awful surroundings of a courtroom. The judge in his robes looking down upon you very eloquent The prosecuting attorney pelting you with questions. You and the state against you. Oh you knew you were innocent. Are you sure you would present a convincing picture that your composure would not crack. That you would not end up

with your foot in your mouth. It is not everyone who can safely venture on the witness stand though entirely innocent of the charge against him. This from a Supreme Court opinion. Excessive timidity and nervousness when facing others and attempting to explain transactions of a suspicious character and offenses charged against him will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is Not everyone however honest who would therefore willingly be placed on the witness stand. Therefore under our law no accused person may be placed on the witness stand against his will. Persons accused of offense do not have to testify in their own behalf and need give no reason for failing to do so. As Star Chamber procedure demonstrated the removal of the principles for bidding forced self-incrimination alters the whole fabric of Anglo-American law.

Without it the government may not have to possess a large body of evidence to support its accusation before subjecting an individual to prosecution. The evidence may be extracted from the defendant's own mouth should he choose to lie. He may go to jail anyway as a perjurer he the defendant bears the burden of proof which under our jurisprudence is supposed to rest upon the government the accuser and should he succeed in spite of all in proving himself innocent. Would he not already have suffered a serious infraction of his freedom. It has always been recognized in this country. Justice Pierce Butler once wrote. And it is well to remember that few if any of the rights of the people are guided by fundamental law of greater importance to their happiness and safety than their right to be exempt from unauthorized arbitrary or on reasonable enquiries and

disclosure in respect of their personal and private affairs. Then to prosecution for a crime regardless of its outcome may have severe consequences. How is it friend that you offer free to be here a spectator on every stall day. If you know whacked occupy your hours you know wife and family to fill your days. Once I had work aplenty in once I had a wife and children a plenty. But once upon a star day I was a performer rather than a spectator here and that has made a great difference. How so innocent as I was and their lordships did say I was Ross calamities then pillory or prison but there will be calamities. My employers say that all who work under his name must be above suspicion and did relieve me of my work being relieved of work. I was relieved of the wherewithal to support my wife and children. They replied my wife though not without tears did depart with my children for her father's house in the country. It was an ill stalled stalled day for you.

For me it was dooms day a government charged with protection of the innocent as much as punishment of the guilty must protect the innocent against the possibly grave consequences of an unwarranted prosecution. The privilege against self incrimination serves this in it supports the requirement that the government must have ample proof before it accuses and brings a person to prosecution. It serves the same end in this way. A witness a person accused of nothing but rather called before a court or other official body because of information which he holds a witness may invoke the privilege against self-incrimination. Refusing to answer any question which might tend to incriminate him tend to involve him. That is in a criminal prosecution when the witness in court or before an investigating committee says I refuse to answer that question on the grounds that they may tend to incriminate me. It does not necessarily follow that he

is guilty of some crime. It means only that the fact he is asked to reveal could serve as a link in a chain of evidence which might lead to prosecution a prosecution which might result in his acquittal but which would itself seriously disrupt his life. Persons called as witnesses must testify of course if immunity statutes assure him that no prosecution can result from his revelations. A witness must reveal even incriminating facts about himself the privilege against self incrimination protects witnesses only against the possibility of criminal prosecutions criminal prosecutions of themselves not anyone else. The principle underlying the privilege against self incrimination also underlies the rule which excludes as evidence any coerced confessions torture. Certainly beyond the pale with us is thereby removed from the realm of justice.

The same principle is bound up in the law which makes our homes our castles under the law governing searches and seizures. Police are forbidden to conduct fishing expeditions invading the homes of citizens for the purpose of poking about in the speculation of finding something chargeable. Why is this woman. Because it is very certain that the law oblige with no man to accuse himself said Lord Camden expounding the law of searches and seizures because the necessary means of compelling self-accusation folding upon the innocent as well as the guilty would be both cruel and unjust and it would seem that the search for evidence is disallowed upon the same principle. The law still stands in America and in England as it was expounded by Lord Camden. That however was late in the eighteenth century more than a hundred years earlier.

In the star chamber where to answer truly such questions I shall be put to you will answer yes or no. I would be hanged before I would do so. MASON. Englishman like an action. 16:30 certainly. A free man charged with having imported certain radical and seditious books fights for a free man's privilege. Never shall I accuse myself Never shall I betray on Englishman by so doing you are such a punk. Storms out of season. You are in no way put apart. You are asked to swear to answer truly rethinks no honest man objects to this. I am asked to betray my liberty which I must of necessity do in answering questions to accuse myself and what think you may happen to English liberty should offenses against this government of this people go undiscovered unpunished. And both think you we may discover offenses if we may not question suspicious person by your favor on my door. That is my accusers burden and not mine.

No you say that this court not punish anyone who refuses to take the oath. So doth this court punish him who having taken the oath give us answers not to this court's liking saucy and impertinent your tongue wags contemptuously. We also punish him then to this court don't punish whomever gives answers which are to its liking those being most probably answers which expose guilt of some offense but you are free you are pretending your tongue if you value which binds silence to all men may win his punishment before this court refusal to answer questions being regarded as confession. To return to your original question yes I do know that this punish me I do not know how before this man made not take the oath so that this trial may proceed. This is not a trial in which you would. This is an inquisition. I stand before you might want a free born Englishman and

therefore cannot submit to be inquisition for this boldness I promise you you will be flown to his flock. I had rather die on my liberties than him I bet you will find the pillory a poor pillow. I shall take no prisoners fellow is an inglorious grip on me. Pillory me flog me. Do what you will I will never take this so I will never do that which not only do. I never accuse myself never so wild horses. At. 22 or 23 cooks institutes in his hand if not actually open in his hands and the love of liberty in his heart he was whipped.

He was imprisoned he was thrust into the pillory man's conscience to be wracked by imposed to answer questions concerning himself in matters of criminal the ancient right. Man this pillar of fire that will be snuffed by Hillary. I stood watching him with his head bowed by the wood in the border. He doesn't bring the people with strong voice an inspired spirit of the most contentious on how the sheriff approaches his pedigree. We know what is done to ne may be done to everyone what a man should not suffer wrong to see what is. Why is the rag no guide for long silence. Reborn John reborn John himself at the outset of his turbulent career pilloried and gag but not stopped in his course more than

to any other one man. We are indebted for the privilege against self-incrimination to him to free born John Byrne. Never changed his principles from better to worse and I could never be threatened with no quarter from them. But never fear the rich mighty never despised the poor but always have. Hopes by God's goodness to continue for years after his brush with the star chamber the House of Commons acting upon a petition filed by John voted that his sentence had been illegal and against the liberty of the subject. The House of Lords concurred and ordered that he be paid a large indemnity this was enough to make the idea that a man ought not to be forced to accuse himself. A matter of the common law. In America the founders of this nation thought highly enough of the privilege to state it explicitly and many of the early state

constitutions and in the Constitution of the United States no person shall be compelled in any criminal case to be a witness against himself outmoded relic of times past and practices which could never occur in times present to be governed in a civilized way by a government that will not resort to torture to bullying the violation of human dignity and integrity. That is a free man's privilege guaranteeing this privilege is the function of the other. The privilege against self-incrimination. For such was the belief of those who wanted those of John Burns out of mind. I stood for liberty as resolved persisted there in enduring a most cruel whipping pillaring and barbarous imprisonment rather than betray the rights and liberties of every man. Did I deserve

so doing to be accounted turbulent. Certainly none was sole judge. But such as a very weak very weak it the first of which are inexcusable that this day this ancient right having now for many years been known to all men and the latter ought rather to be punished than be countenanced. Being still ready to do the like to me or any man. To every man his due he has produced by radio station WAGA of the University of Wisconsin under a grant from the National Educational Television and Radio center and distributed by the National Association of educational broadcasters script by Milburn Elizabeth Carlson content consultant David film and music by Don Bigley production by Carl Schmidt.

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