To every man his due; A freeman's privilege
Once there was a little boy 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 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 Paula you know I can't tell a lie. I didn't cut it with my hatchet. Run to my time as my dearest boy cried his father in transport run to my on the ladder my joy my dream made me for a 2004 you know something my son is worth more than a thousand blossoms and their fruits. You'll roast 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 was George beseechingly cried out Don't do it. I implore you upon his little eyes brimming with terrible tears. George did clasp his father about the leg of that boy. Just answer the question. Who chopped my tree. Admitting that you did it. Admitting. You were right. I did. Yes yes. At last the truth please.
The essential and inherent cruelty of compelling a person to expose his justice of the Supreme Court is obvious to everyone that needs no illustration. To every man his a series of radio programs about the principles of justice. To every man his do with 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. A free man's privilege. Nobody should have to walk.
No person shall become paled in any criminal case to be a witness against himself. The Fifth Amendment to the United States Constitution part of it the part 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 man. 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 legislative investigating committees or administrative agencies. No man is required to help his 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 criminals
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 decencies 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 a lie. 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 compelling the 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 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 as 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 Englishman and fellow almost every Wednesday and Friday in fact the hatchet could be expected. 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. On a man get no civil answer in this London I ask you what day is this. I ask it thrice have I answered. And again to star day all day I know knows it all day. Can it be that London requires more days for its business than did the Lauda creation eight days in a week it must play hall with the seasons some kid no longer in week is about
seven days and includes two stall a day believe they will stall with the pins if you are up a formal You will think it is most probably. If a spectator you may think it will some spectacle I imagine transpired here all the stall days where there are spectators there is a spectacle almost always and where they are all performers there is performance of the Super Bowl quacks and hacks and drunkards and nowadays Puritans aplenty opposing these all the grandees of the rail that night so that got her in there. It's the judges that week didn't rule in scarlet. Such a spectacle you can scarcely imagine. Well they're all judges I imagine there is Georgian justice come along the does the 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 blazoned with the monarch's arms and before which lay the seal and makes a special and famous court it is called the Star Chamber. Rhodes or Edward Cook who performed there as Queen's and then king's attorney general and finally as the Lord Chief Justice it is called the Star Chamber in respect to the Robe of the court which is garnished with golden star. You know records in Latin it is about time. Some have imagined that it should be called this chamber because criminal do you not their hand there is this Saxon word. Who is the pilot. Deaf and govern the ship of the Commonwealth. Other because it is full of windows met the true cause of the name is they call out. Their oath. You
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 a 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 in the pillory for you to set up before the House you were robbed in May your victim's spare you nor poor meant bronco ride through the halls with a placard proclaiming your wickedness. You have no money with which to pay your fine of pity pay then with the bottom one each 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 money this most noble and praiseworthy court 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 the 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 first the star chamber would become a chamber of horrors. Last holiday a man was sentenced to lose his right hand. Locked it all thinking what
offense 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 on protesting which was both theoretical and seditious. Persecution of Puritans was underway. People were jailed before star chamber court a 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 fell readily sketched likely Star Chamber justice may have sounded like this. Truly such questions I shall here be put to you answer yes or no. Yes maybe you're right the sad woman to ever be loyal
faithful in attending church or to attend church when the load up on which Sunday plan which Sunday did not attend church. Were you in church on Sunday last. Oh yes that I did. And on the Sunday before that. Did you attend church Madam upon the first Sunday in the month of July. That's three months. It is hard to recollect a faithful church goer would have no trouble recollecting I II. I do attend church most faithfully. Yes assuredly I must attend a church the first Sunday in July is upon every other day. When the plane went to church. No no I take it you
trust. Therefore I return to an earlier question. You have said that you were correct. Yes tell me then I pray you. What was the topic of the sermon the day Simon. Oh yes the sermon is to pawn all that I heard in these circumstances I'm driven because you were not there. You were there in the flesh but not in spirit but up your mind. I know this is your belief that the church no grievance against the sovereign I must say you want to take her away. Start 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. Their suspicion sufficed to bring him to court and bear suspicion may accrue to many 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 principle 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 guarded by fundamental law are of greater importance
to their happiness and safety than their right to be examiner's from an authorized 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 are free to be here a spectator on every stall day of you know whacked occupier 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 was calamities then pillory or prison but there would be calamities my employers say if all who worked 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 from 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 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 a witness in court or
before an investigating committee says that question on the grounds that they 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 forbidden. 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 the self-accusation folding upon the innocent as well as the guilty would be both cruel and unjust and it should seem that 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 I would be hanged before I would do so. Mason Englishman like an axe. 16:30 so a free man charged with having imported certain erotic books a free man's privily Never shall I accuse myself Never shall I be the Englishman out of season you are in no way to swear to me thinks I am asked to betray my liberty which I must of necessity do in answering questions to accuse myself under what happened to English liberty offenses against this government and this people go undiscovered.
I'm hoping to discover offenses. If we may not question the suspicious person. That is my accusers burden and not mine anyone who refuses to take the oath. Having taken the oath and says not to this impertinent your tongue wags contemptuously. Don't publish and then to punish whomever gives answers which are to its liking to be probably answers which expose guilt of some offense but you pretend by silence may win his punishment before this court refusal to answer questions being recalled to this confession. Yes I do not know how. Maybe not.
This is I stand to be. Rather done in the pillory. I would never accuse myself. In his head in his hands
he was whipped. He was imprisoned. He was thrust into the hands to answer questions concerning a criminal. The man stood watching him with his head bowed by the people with strong voice an inspired spirit. Oh look you know me. See what is being done on the rag. No guy can fall long silence for a born John himself at the outset of his turbulent career pilloried and gagged but not
stopped in his course more than to any other one man. We are indebted for the privilege against self-incrimination to free born John Byrne. Principles from the worse could never be threatened. No quarter from them. But never fear the rich never despise 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. Or such was the belief of those who wanted those burns out of mind. I stood for liberty as resolve persisted there in enjoying the most cruel pillorying and barbarous imprisonment rather than betray the rights and liberties of every man. Did I deserve
so doing to be counted. Turbulent. Certainly none was so judge but such as a very weak very weak in the first of which are inexcusable at 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 his produce by radio station 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 and Elizabeth Carlson content consultant David film and music by Don vaguely. Production by Carl Schmidt. This is the end of
- To every man his due
- A freeman's privilege
- Producing Organization
- National Association of Educational Broadcasters
- WHA (Radio station : Madison, Wis.)
- Contributing Organization
- University of Maryland (College Park, Maryland)
- AAPB ID
- Episode Description
- A Freeman's Privilege: Self-incrimination Protection
- Other Description
- Dramatic-narrative series on principles of justice under the American system of law, particularly the rights of defendants.
- Media type
Advisor: Fellman, David, 1907-2003
Music Director: Voegeli, Don
Producing Organization: National Association of Educational Broadcasters
Producing Organization: WHA (Radio station : Madison, Wis.)
Production Manager: Schmidt, Karl
Writer: Carlson, Elizabeth
- AAPB Contributor Holdings
University of Maryland
Identifier: 62-17-6 (National Association of Educational Broadcasters)
Format: 1/4 inch audio tape
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- Chicago: “To every man his due; A freeman's privilege,” 1961-10-16, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed October 28, 2021, http://americanarchive.org/catalog/cpb-aacip-500-g7374v81.
- MLA: “To every man his due; A freeman's privilege.” 1961-10-16. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. October 28, 2021. <http://americanarchive.org/catalog/cpb-aacip-500-g7374v81>.
- APA: To every man his due; A freeman's privilege. Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-500-g7374v81