Michigan Law Review

Volume 67 Issue 4

1969

Levy: Origins of the Fifth Amendment

O. John Rogge

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Recommended Citation
O. J. Rogge, Levy: Origins of the Fifth Amendment, 67 MICH. L. REV. 862 (1969).
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862 Michigan Law Review [Vol. 67

ORIGINS OF THE FIFTH AMENDMENT. By Leonard W. Levy. New

York: Oxford University Press. 1968. Pp. xii, 561. $12.50.
This volume by Professor Leonard W. Levy, Earl Warren
Professor of Constitutional Law and Chairman of the Department
of History at Brandeis University, is a scholar's job, with superior
writing, readily usable footnotes, a bibliography, and an index. How-
ever, Professor Levy's choice of a title is somewhat of a misnomer.
Although he calls his book Origins of the Fifth Amendment,! he

I. Inferentially he justifies his choice of title by quoting (p. 2) from Chief Justice
Warren's opinion for the Court in Quinn v. United States, 349 U.S. 155, 163 (1955):
"Surely, in popular parlance and even in legal literature, the term 'Fifth Amendment'
in the context of our time is commonly regarded as being synonymous with the priv-
ilege against self-incrimination."
February 1969] Recent Books 863

does not deal with important provisions of that amendment such as

the requirement for indictment by grand jury, the guarantee against
double jeopardy, the due process clause, and the prohibition against
taking private property for public use without just compensation.
Instead, the book deals solely with one of the great characteristics of
the Anglo-American legal system: the "right of silence," or, as the
bench and bar called it until recent years, the "privilege against
self-incrimination. " 2
Professor Levy prefers to call the right of silence "the right
against self-incrimination." But "privilege" was not an inapt descrip-
tion of the right of silence during the time of its development. The
word privilege derives from the Latin privilegium (privus, private
and lex, legis, law), and originally meant a measure of Roman law
either against or in favor of a particular individual; it could inflict
penalties on a citizen by name without any previous trial or exempt
an individual from the operation of a law.
It was in the latter sense that the word "privilege" often came to
be used in Anglo-American law. It denoted an advantage enjoyed by
a person or class of persons beyond the common advantages of others,
such as the freedoms asserted by the British Parliament in its strug-
gles with the monarchy.3 The term "privilege" probably came into
use for the right of silence because of the word's application to con-
fidential communications, such as those between attorney and client,
which the law early protected.4
Regardless of the terminology that one uses, tracing the origins
of the right of silence is an exciting quest. One starting point may be
found in Deuteronomy, the fifth book of Moses, which requires at
least two or three witnesses in some capital cases.5 From this require-
2. Interestingly enough in this connection, Professor Levy describes the appearance
of Royal Tyler before the Massachusetts House of Representatives in 1754 (p. 387).
When the speaker demanded his confession, Tyler requested counsel. The House re-
fused. Thereafter Tyler parried all questions by invoking his right of silence. The
record states: "and the only Answer he would make was, Nemo tenetur seipsum
Accusare; or, A Right of Silence was the Privilege of every Englishman." Professor
Levy terms this "a magnificent free translation" (p. 387).
3. During the struggle between Parliament and the first two Stuarts, James I (1603-
1625) and Charles I (1625-1649), the Commons insisted on their privileges while the
king held forth about his prerogative. Blackstone in the first volume of his Com-
mentaries, originally published in 1765, described these privileges as "very large and
indefinite," and explained: "Privilege of Parliament was principally established, in
order to protect its members not only from being molested by their fellow-subjects, but
also more especially from being oppressed by the power of the crown." 1 BLACKSTONE,
COMMENTARIES •164. Two of the principal privileges were freedom from arrest in civil
matters and freedom of speech. Id. at •164-65.
4. A judicial grant of silence to an attorney in order to protect a communication
to him from his client was called a privilege as early as 1740. Rex v. ·watkinson, 93
Eng. Rep. 1072 (Ch. 1740). The attorney-client privilege goes back to the reign
of Elizabeth I. Berd v. Lovelace, 21 Eng. Rep. 33 (Ch. 1577); Kelway v. Kelway, 21
Eng. Rep. 47 (Ch. 1580); Dennis v. Codrington, 21 Eng. Rep. 53 (Ch. 1580).
5. 5 l\!oses 17:6. In Miranda v. Arizona, 384 U.S. 436, 458 (1966), Chief Justice
864 Michigan Law Review [Vol. 67

ineht, rabbinical judges derived the maxim ein adam messim atsmo
rasha-the Hebrew equivalent of nemo tenetur seipsum prodere,
no one is bound to accuse himself.
More than two millennia later, John Lilburne in his controversy
with the Star Chamber relied upon the same biblical two-or-three-
witness requirement in justifying his refusal to take the oath ex
officio. While he was in the pillory in 1638 for his refusal to take the
oath, Lilburne made a speech to the assembled throng. According to
his own account, he stated:
Now this oath I refused as a sinful and unlawful oath .... It is an
oath against the law of the land.... Again, it is absolutely against
the law of God; for that law requires no man to accuse himself;
but if any thing be laid to his charge, there must be two or three
witnesses at least to prove it. It is also against the practice of Christ
himself, who, in all his examinations before the high priest, would
not accuse himself, but upon their demands, returned this answer,
"Why ask you me? Go to them that heard me." 6
How the Rabbis, hundreds of years before Christ, and Lilburne,
hundreds of years after Christ, independently derived the right of
silence from Deuteronomy's requirement of two or three witnesses
in capital cases is not clear. Although the English people knew the
Bible, they were not familiar with the Talmud. But it may be that
the accusatorial method of the Hebrew and English peoples was con-
ducive to the development of the right of silence. Justice Frankfurter,
writing some twenty years ago, pointed out the intimate relationship
between the system that a society uses to deal with deviant persons
and the quality of the protections that it accords to the individual
defendant:
Ours is the accusatorial as opposed to the inquisitorial system.
Such has been the characteristic of Anglo-American justice since
it freed itself from practices borrowed by the Star Chamber from
the Continent whereby an accused was interrogated in secret for
hours on end. . . . Under our system society carries the burden of
proving its charge against the accused not out of his own mouth.
It must establish its case, not by interrogation of the accused even
under judicial safeguards, but by evidence independently secured
through skillful investigation.7
This comment represents some 800 years of legal history reaching
back to the reign of Henry II, a wise administrator who laid the
basis for our jury system. Our accusatorial method owes its survival
Warren in the Court's opinion observed that the right of silence has roots which "go
back into ancient times.'' Then in a footnote he added that Maimonides (1135-1204),
the great codifier of the Talmud, "found an analogue to the privilege grounded in the
Bible." 384 U.S. at 458 n.7.
6. Lilburne's Case, 3 How. St. Tr. 1315, 1332 (1638).
7. Watts v. Indiana, 338 U.S. 49, 54 (1949).
February 1969] Recent Books 865

and growth to the existence of our grand and petit jury system; ht1t
this system, in a sense, takes us back more than 1,500 years to tribal
justice.
Centuries before Charlemagne, European tribal justice was ac-
cusatorial in the sense that the public did not prosecute, and hence
officials did not question, deviants. The ones who prosecuted offenses
were private persons, the injured parties or their kindred, and the
modes of proof were not inquisitional but magical. But in the ninth
century in Western Europe, changes in the treatment of deviants
slowly began to take place. The state gradually took over the prose-
cution of offenses and, in the course of time, the accusatorial and
inquisitional systems supplanted the older modes of proof. With
the Vikings attacking from the north and the Saracens from the
south, tribal society in Western Europe started to become feudal as
kinship ties gave way to the lord-man relationship. The authority of
the state waxed; that of the kindred waned.
During this period, the Frankish kings broke the bounds of the
old tribal customs and, where their finances were concerned, aban-
doned the older modes of proof. There had been customary moot
hill courts with their magical, superstitious procedures-the ordeal,
oaths of one's self and one's kindred (called wager of law or compur-
gation), and trial by battle. Such procedures were no longer good
enough for the Frankish kings when it came to their revenues. They
established a procedure which had the name of inquisitio patriae,
more generally known as the enquete du pays, the inquiry of the
countryside or the inquiry of neighbors. In 829 an ordinance of
Louis I, the third and surviving son of Charlemagne, provided that
every inquiry with reference to the royal revenue was to be by the
inquisitio-the inquiry of neighbors.8
In the next century the Danes and Norwegians (Northmen), led
by Rollo, invaded the West Frankish kingdom; by a treaty in 911
they acquired the territory which became known as Normandy. As
dukes of Normandy, Rollo's successors adopted and developed the
Frankish inquisitio. One of them, William the Conqueror, invaded
England, defeated Harold and the English at the battle of Hastings
in 1066, and on Christmas day of that year had himself crowned at
Westminister. Had it not been for the Normans and their conquest
of England, the inquiry of neighbors might long ago have become a
matter of interest only to antiquaries, who would have regarded it as
no more than an instrument of Frankish fiscal tyranny.9 Instead, it
8, See J. THAYER, PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 48
(1898).
9. The Domesday Book, a great fiscal record which William the Conqueror ordered
prepared, was compiled in 1085-1086 out of just such inquisitions of neighbors. This
work contains all manner of details with reference to local customs and the possession,
tenure, and taxable capacity of the landowners. The Anglo-Saxon Chronicle said of
866 Michigan Law Review [Vol. 67

developed into the jury system and was to be regarded as an agency

for the protection of the weak against the strong and of the indi-
vidual against the state.
Professor Levy characterizes the parent of our grand and petit
jury as a Norman import (p. 7). In this he reflects the view of
Heinrich Brunner, although he does not cite Brunner's works.
Brunner sought to demonstrate that our jury system was neither
English nor popular, but rather was Frankish and royal. 10 He was
right and he was ·wrong. One will find the jury of neighbors among
the Anglo-Saxons as well as among the Franks. It was both popular
and royal.
As early as the Wantage Code of Ethelred the Unready and his
councillors (c. 997), there is provision for a jury of presentment, the
ancestor of our grand jury: "[A] meeting is to be held in each
wapentake, and the twelve leading thegns, and with them the reeve,
are to come forward and swear on the relics which are put into
their hands that they will accuse no innocent man nor conceal any
guilty one." 11 If it be suggested that this is a piece of Danish rather
than English law, there is a double answer: for one thing, the Wan-
tage Code was issued on English soil; for another, the northern tribes
of Europe made use of the accusing jury. While the deciding jury
may have been used by the Anglo-Saxons only sporadically, it was
used. 12 Thus, when William's successor, Henry II, sought to establish
the antecedents of our modern legal system, he was able to take the
royal Frankish inquisition and fashion it into our grand and petit
jury system among a people to whom this kind of inquisition was
familiar as well as congenial. In basing the administration of justice
on this institution, he had the support of the body of the population;
the great losers were the feudal courts.
Just as the Frankish kings eventually became dissatisfied with
the old procedures and modes of proof, so too did the Church. Al-
most four hundred years after the Frankish kings began to develop
the inquiry of neighbors, Innocent III, a great papal legislator,
began to devise the inquisitional technique in a series of decretals
beginning in 1198 or 1199. The system was perfected in the Fourth
Lateran Council, which was called to assemble in 1215. This assem-
William's inventory of every local holding: "So very narrowly did he have it investigated,
that there was no single hide nor a yard of land, nor indeed (it is a shame to relate but
it seemed no shame to him to do) one ox nor one cow nor one pig was there left out,
and not put down in his record ••••" 2 ENGUSH HisrORICAL DOCUMENTS 1042-1189,
at 161 (1955). The information was obtained by a commission which traveled throughout
England and made inquiry of sworn groups of responsible neighbors in each district
concerning the facts which the commission wished to elicit.
10. H. BRUNNER, DIE ENTSTEHUNG DER SCHWURGERICHTE (1872).
11. 1 ENGLISH HisrORICAL DOCUMENTS 403 (1955).
12. See Van Caenegem, Royal Writs in England from the Conquest to Glanvill, 77
SELDEN Soc. PUB. 51-58 (1959).
February 1969] Recent Books 867

bly included clerical leaders from almost every country in Christen-

dom and representatives of many temporal rulers. The canons and
decretals which this Council issued totaled seventy in number. One
of these perfected the inquisitional system; others abolished ordeals
and instituted the practice which came to be known as auricular
confession.
Under the inquisitional technique, an official by virtue of his
office (ex officio) had power to make a person before him take an
oath to tell the truth to the full extent of his knowledge as to all
things he would be questioned about. Innocent, following some
traces of the Roman law, provided for three forms of action: ac-
cusatio, denunciatio, and inquisitio. In accusatio an accuser formally
brought suit and was subject to the talio in case of failure-that is,
he would be obliged to suffer the punishment which he had de-
manded for the accused. In denunciatio a person gave information
about an offense to the appropriate official but did not himself be-
come a formal accuser or party to the suit, while in inquisitio the
inquisitor simply cited a suspect without any denunciation, having
him imprisoned if necessary. However, under Innocent's decretals
the inquisitor was not supposed to proceed by this third method
unless he had some basis in either common report ("per famam")
or notorious suspicion ("per clamosam insinuationem"). In prac-
tice, the third form, the inquisitio, became the invariable rule. But
at the same time, the safeguards which Innocent III provided were
ignored.13
The inquisitional system spread throughout Christendom and
to the organs of the states of the mainland of Europe, beginning in
France. Originally, of course, France had taken another path; it was
the Frankish kings who had developed the inquiry of neighbors.
But by the thirteenth century, King John had lost his southern
territories to the French, and the inquiry of neighbors was slowly
dying out in France. There it gave away to the inquisitional system
of the Church. The point of departure was the Ordinance of 1260,
by which St. Louis IX forbade trial by battle in the king's courts
and substituted a procedure which he borrowed from the practice of
the ecclesiastical courts. Witnesses were to appear before certain
13. For a full description of the inquisitional procedure of the Church, both in
theory and in practice, see 1 H. LEA, A HISTORY OF THE INQUISITION OF THE MIDDLE
AGES 310-440 (1888), reprinted under the title of THE INQUISITION OF THE MIDDLE AGES
1-33 (1954). Hinschius also related that in the inquisitio procedure the safeguards came
to be ignored. P. HINSCHIUS, 6 SYSTEM DES KATHOLISCHEN KlRCHENRECHTS 68-71 (1897).
Adhemar Esmein found the earliest instance of the inquisitio procedure of the
church in a decretal of 1198. HISTOIRE DE LA PROCEDURE CRIMINELLE EN FRANCE, trans-
lated in 5 CONTINENTAL LEGAL HISTORY SERIES 80 (1913). But Wigmore, Pollock, Mait-
land, Tanon, and Hinschius were of the opinion that the first reference to the inqui-
sitio procedure as a generic method was in a decretal of 1199. 8 J. WIGMORE, EVIDENCE
§ 2250 n.28 (3d ed. 1940); 2 F. POLLOCK &: F. MAITLAND, HISTORY OF ENGLISH LAW 657
n.4 (2d ed. 1911).
868 Michigan Law Review [Vol. 67

delegates of the judge to be questioned. The judge's delegates were

called inquirers (enquesteurs) or auditors, and they were to question
the witnesses separately and "artfully" (s-ubtilement).
The difference between the inquisitio of the Frankish and Eng-
lish kings and the inquisitio of the Church-between the inquiry
of neighbors and inquiry by officials-is subtle yet fundamental.
Under the inquiry of neighbors, it was the neighbors who accused
and sat in judgment; under the inquisitional system, these functions
were performed by some official. The inquiry of neighbors was des-
tined to aid in the development of a fairly independent and rela-
tively mature citizenry and a more or less representative form of
government; inquiry by officials was not. Of course, both forms of
inquiry were more rational than the old modes of proof. Also, the
fact that officials questioned persons in secret was not necessarily an
evil; after all, our grand jury proceedings are secret. The vice lay in
the use of secret questioning, not by a grand jury, but by a profes-
sional class, at a time when safeguards for persons who stood accused
had not yet been developed. In England those safeguards did de-
velop, and today constitute part of what we describe as the accusa-
torial method.
When the Church attempted to introduce inquisitional tech-
niques into the English accusatorial framework, it soon ran into
stiff opposition which in the long run proved to be insurmountable.
To the people of England, who themselves had a hand in the job
of governing and who were accustomed to a system in which an in-
dividual was not questioned until after he had been formally and
specifically charged, there was something improper about putting
a person on oath and questioning him generally. They raised vari-
cms objections to this procedure: a person was entitled to be pre-
sented formally with the charges against him; he was also entitled to
be tried in his own vicinity, to know his accusers, and to be pro-
tected against questions about the secret thoughts of his heart. Often
implicit even in these early objections was a reluctance to inform on
others secretly.
Two great legal historians, Pollock and Maitland, have expressed
the opinion that England escaped the inquisitional system because
H~nry II preceded Innocent III and extended the inquiry of neigh-
bors.14 This in fact seems true. The grand jury system provided a
continuation of the accusatorial characteristic of tribal justice-a
person was not to be proceeded against without being first formally
charged. Officials did not take a person into custody and question
him generally. The English people, always having been accustomed
14. 2 F. POLLOCK&: F. MArrl.AND, THE HISTORY OF ENGLISH LAW 604, 658 (2d ed.
1898).
February 1969] Recent Books 869

to formal and specific charges before being questioned, insisted on

them. However, their escape from the inquisitional system, as Pol-
lock and Maitland admitted, was a narrow one.
Professor Levy gives an able account of the struggle of the Eng-
lish people against inquisitional techniques. Only occasionally is
there reason to differ with him, and then only as to detail or mat-
ters of emphasis. For instance, Professor Levy gives too much weight
to the preliminary examination of accused persons by justices of
the peace as an example of incursion by the inquisitional system on
the common law. In this connection he refers to two acts passed
during the reign of Queen Mary which empowered justices of the
peace to take the examination of accused persons and of their ac-
cusers (p. 35). These two acts did grant this authority; but there
were many prior such acts. Between 1414 and 1503, a series of no
fewer than twenty-five different statutes empowered these officials,
as well as others, to question defendants and suspects about various
specified, but common, offenses.15 The first and the last in this series
of statutes provided for examination on oath. The first, which was
Henry V's Statute of Labourers, provided that "the Justices of Peace
from henceforth have Power to examine . . . all Manner of La-
bourers, Servants, and their Masters, as Artificers, by their Oaths,
of all Things by them done . . . ."16 The last provision, which was
Henry VII's Statute of Retaining, enacted that "the Justices of the
Peace at their opyn Sessyons shall have full Power and auctorite
to cause all such psons, as they shall thynke to be suspect" to come
before them or two of them and "theym to examen of all such
reteynours contary to this acte, or otherwyse name theymself to be
servaunt to any person or of other mysbehavyng contrary to this
acte by the discrescion of the seid Justices." 17 Furthermore, the act
provided for an informer's suit before "the Chancellor of Englond or
the keper of the Kyng's gret seale in the Sterre Chamber, or before
the Kyng in his Benche, or before the Kyng and his Counseill at-
tendying," and gave these officials "power to examen all persons
defendauntes and every of theym, aswell by oth as oderwyse ...."
Even without suit the "Chauncellor or keper of the gret Seale
Justices or Counseill" were empowered to bring persons before them
and "the same person or persons to examen by oth or otherwyse. by
15. See, e.g., 2 Hen. 5, c. 4 (1414); 2 Hen. 6, c. 7 (1423); 2 Hen. 6, c. 12 (1423); 2
Hen. 6, c, 18 (1423); 6 Hen. 6, c. 3 (1427); 8 Hen. 6, c. 4 (1429); 8 Hen. 6, c. 5 (1429);
11 Hen. 6, c. 8 (1433); 11 Hen. 6, c. 11 (1433); 11 Hen. 6, c. 12 (1433); 18 Hen. 6, c. 4
(1439); 18 Hen. 6, c. 14 (1439); 18 Hen. 6, c. 19 (1439); 23 Hen. 6, c. 12 (1444-45); 33
Hen. 6, c. 7 (1455); 3 Edw. 4, c. 1 (1463); 3 Edw. 4, c. 5 (1463); 4 Edw. 4, c. 1 (1464-65);
8 Edw. 4 (1468); 17 Edw. 4, c. 4 (1477-78); 22 Edw. 4, c. 1 (1482-83); 1 Hen. 7, c. 7
(1485): 11 Hen. 7, c. 3 (1495); 19 Hen. 7, c. 11 (1503); 19 Hen. 7, c. 14 (1503).
16. 2 Hen. 5, c. 4 (1414).
17. 19 Hen, 7, c. 14, § 5 (1503).
 870 Michigan Law Review [Vol. 67

their discressions." 18 Other statutes enacted later in the sixteenth

century-including the two referred to by Professor Levy-extended
officials' power to use inquisitional techniques.19
Professor Levy also indicates that as the judicial arm of the Privy
Council, the Star Chamber used torture to extract confessions (pp.
34-35). However, if one refers to the Star Chamber as it existed after
it became distinct from the Privy Council-in other words the body
which the Puritans attacked and before which John Lilburne ap-
peared-one cannot say that it exercised the royal prerogative to
inflict torture for the purpose of extracting a confession. Indeed,
the Star Chamber had three rules which excluded the use of com-
pulsion in its ore tenus examination, the procedure used when the
accused person admitted the charge: the private examination should
not be on oath; the confession should not be obtained by compul-
sion; and if the defendant would not acknowledge his confession
in court, he was to be remanded and proceeded against in a formal
manner by witnesses. 20
Both Smith21 and Coke,22 as well as the antiquary William Lam-
barde,23 had a high opinion of this tribunal. Moreover, the Star
Chamber at least purported to respect one's right of silence with
reference to crimes involving the loss of life or limb. In a Star
Chamber trial in 1581 the judges stated:

18. 19 Hen. 7, c. 14, § 7 (1503). Section 8 of the statute provided that the act was to
remain in force during the lifetime of King Henry VIII.
19. The act of 1554 provided that when any person arrested for manslaughter or
felony, or suspicion of manslaughter or felony, who was bailable by law, was brought
before two justices, they were to "take the xaminacon of the said Prysoner, and in-
formacon of them that bringes him, of the facte and circumstances Thereof, and the
same, or asmuche Thereof as shalbee materiall to prove the felonye shall put in writing
before they make the same bailem." 1 & 2 Phil. & M., c. 13 (1554-55). The next year
another statute extended this procedure to accused persons who were not bailable. 2 &
3 Phil. & M., c. 10 (1555). It may be that these two statutes did no more than give legal
sanction to a practice which had grown up without express statutory authority, es-
pecially in the fifty years since the act of 1503; see 1 J. STEPHEN, A HISTORY OF THE
CRIMINAL LAw OF ENGLAND 219-20 (1883). At any rate justices now had such power by
express grant. However, one must remember that in proceedings before justices of the
peace one had the benefit not only of specific charges but also of accusers.
20. See BURN, THE STAR CHAMBER 50 (1870). Coke explained that in an ore tenus
proceeding the person accused "again must freely confess in open court," and if he
did not do so "then [the court] cannot proceed against him but by bill or information,
which is the fairest way." 4 INST. •53-.
21. Smith stated that the effect of the Star Chamber was "to bridle such stout
noblemen, or Gentlemen which would offer wrong by force to anie manner men, and
cannot be content to demaund or defend the right by order of law." THE COMMON·
WEALTH OF ENGLAND 120 (1594 ed.).
22. Coke declared: "It is the most honourable court, (our parliament excepted) that
is in the Christian world ••••" 4 INST. •65.
23. Lambarde extolled the Star Chamber as "this most noble and praise-worthy
Court, the beames of whose bright Justice .•• do blaze and spread themselves as far as
the Realme is long or wide." ARCHION, OR A COMMENTARY UPON THE HIGH Coull.TS OF
JUSTICE IN ENGLAND 215 (1635).
February 1969] Recent Books 871

Sir Roger Manwhode, the lord chief baron. . . . He alleaged that

thoughe the lawe dyd forbydd a man to accuse hymselfe where he
was to loose lyfe or lymme, yet in this case yt was not so. Sir James
Dier, lord chief justice of the common pleas. He beganne with the
reason that the cheif baron first alleaged, saing that in case where
a man might Ieese lyfe or lymme, that the Iawe compelled not the
partie to sweare, and avouched this place nemo tenetur seipsum
prodere [no one is bound to accuse himself], which I take to be
Bracton's principal!. Sir Christopher Wraye, lord chief justice of
England. He also beganne with the chief baron's originall; that no
man by lawe ought to sweare to accuse hym self, where he might
loose lyfe or lymme.24
Professor Levy concludes that what Lord Chief Baron Manwood
meant was that the Star Chamber, not having jurisdiction over
treason or felony cases, could not impose capital punishment or dis-
memberment (p. 105). But it is interesting to note the comparable
statement against use of the oath ex officio in matters touching life
or limb in the Mirror of Justices some three centuries earlier, wholly
apart from any jurisdictional conflicts: "It is an abuse that a man
is accused of matter touching life or limb quasi ex officio, without
suit and without indictment."25
When Professor Levy turns his attention to the establishment
of the right of silence in the American Colonies, he asserts that it
would be a gross exaggeration to say that individual efforts to assert
the right of silence here duplicated or even paralleled the struggle
in England (p. 339). However, his mm illustrations belie his con-
clusion. The Colonists insisted on formal charges, on knowing their
accusers, on being tried in their own communities, and on a right
of silence.
At times, Professor Levy puts too much emphasis on the in-
stances in which there was a disregard for the right to silence. For
example, he prefaces his discussion of two cases in Massachusetts
with the comment that these cases suggests that the right of silence
had no honored place in Massachusetts legal practice (p. 348). His
judgment is too severe, as the report of one of these cases demon-
strates.
When John Wheelwright was summoned before the authorities
of Massachusetts Bay Colony in 1637, a half year before Lilburne
was taken into custody in England, he demanded to know whether
he was sent for as an innocent or a guilty person. He was told as
neither, but as a suspect. Then he demanded to know his accusers.
It was explained to him that his accuser was one of his sermons and
that since he acknowledged it, "they might thereupon proceed, ex
24. Quoted in Bayne &: Dunham, Introduction, in 75 SELDEN SOCIETY PUBLICATIONS,
SELECT CASES IN THE COUNCIL OF HENRY VII, xciv-xcv n.6 (1958).
25. 7 SELDEN SoCIETY PUBLICATIONS, THE MIRROR OF JUSTICES 172 (Whittaker ed.
1895).
S72 Michigan Law Review [Vol. 67

officio." But "at this word great exception was taken, as if the Court
intended the course of the High Commission, &. It was answered
that the word ex officio was very safe and proper . . . seeing the
Court did not examine him by any compulsory means, as by oath,
imprisonment, or the like . . . ." At length, on the persuasion of
some of his friends, Wheelwright agreed to answer questions; but
as soon as he was asked something which did not relate directly to
the sermon, he refused to answer~ and "hereupon some cried out,
that the Court went about to ensnare him, and to make him to ac-
cuse himself." 26
Similarly, in 1642 Deputy Governor Richard Bellingham of
Massachusetts Bay Colony wrote to Governor William Bradford
of Plymouth Plantation and propounded the following question,
among others: "How £arr a magistrate m;iy extracte a confession
from a delinquente, to acuse him selfe of a capital! crime, seeing
Nemo tenetur prodere seipsum."27 Bradford referred the question
to some of his elders, three of whom replied. 28 All three were op-
posed to the use of an inquisitional oath. 29
To the Puritan mind, as the answers of these elders indicate,
requiring a suspect to take an inquisitional oath was a form of
torture and an even worse one than physical compulsion-the third
elder would not have permitted ;in inquisitional oath although he
would have allowed the use of a certain amount of physical com-
pulsion to obtain a confession in exceptional circumstances.
It is trµe that royal governors in the Cqlonies, patterning them-
selves after the king in England~ frequently exercised what they
regarded as their prerogative: they summoned suspects before them
and their councils and tried to induce confessions. If they were
successful such confessions were then used subsequently at trial.
26. ANTINOMIANISM IN THE COLONY OF MAssACHUSETIS BAy 194, 195 (C. Adams ed.
1894). In November of the same year Anne Hutchison, who shared Wheelwright's
views, was summoned before Governor Winthrop and the elders. The governor in an
opening explanation told her that she was called before them as a disturber of the
peace of the commonwealth and the churches. She responded: "I am called here to
answer before you, but I hear ••• no things laid to my charge." 1 P. CHANDLER,
AMERICAN CRIMINAL TRIALS 11-12 (1841).
27. W. BRADFORD, HlsTORy "OF PLIMOUTH PLANTATION" 465 (1898).
28. Id. at 465-74.
29. The first said: "That an oath (ex officio) for such a purpose is no due means,
hath been abundantly proved by ye godly learned, &: is well known." The second an-
swered: " ••• he may not extracte a confession of a capital! crime from a suspected
person by any violent means, whether it be by an oath imposed, or by any punish-
mente inflicted or threatened to be inflicted, for so he may draw forth an acknowledge-
mente of a crime from a fearful inocente; if guilty, he shall be compelled to be his
owne accuser, when no other can, which is against ye rule of justice." The third re-
sponded: "The words of ye question may be understood of extracting a confession
from a delinquente either by oath or bodily tormente. If it be mente of extracting
by requiring an oath (ex officio, as some call it,) &: that in capital crimes. I fear it is not
safe, nor warented by God's word, to extracte a confession from a delinquente by an
oath in matters of life and death." Id. at 466, 467, 472.
February 1969] Recent Books 873

The colonists, however, resisted this practice and protested vigor-

ously.30
In spite of the fact that Professor Levy often emphasizes various
kinds of official oppression that have been used in efforts to abro-
gate the right of silence, there is reason to look upon America as
"a maturing society" 31 and to be optimistic about the future of the
fifth amendment. Seventy years ago, when the Supreme Court tied
the inadmissibility of a coerced confession of the fifth amendment's
right of silence in Bram v. United States,32 Professor Wigmore con-
cluded that the decision "reached the height of absurdity in mis-
application of the law."33 Yet this identification of the self-incrim-
ination provision with an exclusionary rule, castigated by Dean
\Vigmore as "erroneous, both in history and in practice,"34 laid the
foundation for the Supreme Court's extension of fifth amendment
protections to police questioning in Miranda v. Arizona.85
It is true, of course, that law in action often lags behind a good
court decision. When the Supreme Court excluded a confession
obtained by torture in Brown v. Mississippi 36 some thirty years ago,
use of the third degree by police did not come to an end; even
Miranda cannot guarantee that the right of silence will always be
respected in the station house.37 However, we may look ahead to a
time when any confession which a defendant repudiates in court
will for that reason alone be held inadmissible in evidence. Indeed,
Justice White prophesied-and deplored-this result in his dissent
to Escobedo v. Illinois, 38 categorizing the decision as "another major
30. One of the charges against Governor Andros of New England and New York
in the New England revolution of 1689, following the flight of James II from England,
was that Andros would too frequently
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 themselves were unreasonably strict,
and rigorous and very unduely ensnaring to plain unexperienced men.
Narrative of the Proceedings of Andros, in NARRATIVES OF THE INSURRECTIONS 237, 246
(Andrews ed. 1915).
In 1696 when the governor of Massachusetts summoned Thomas Maule before him
and his council to question him about a book in which Maule criticized both clerical
and lay officials and their conduct in the witchcraft prosecutions, Maule refused to
answer any questions and successfully demanded to be tried by a jury of his peers in
his own country. 1 P. CHANDLER, .AMEru:cAN CRIMINAL TRIALS 143-49 (1841).
31. Trop v. Dulles, 356 U.S. 86, 101 (1958) (separate opinion: Chief Justice Warren
joined by Justices Black, Douglas, and Whittaker).
!12. 168 U.S. 532 (1897).
33. 3 J. WIGMORE, EVIDENCE § 821 n.2 (3d. ed. 1940).
34. 8 id. § 2266 (3d ed. 1940).
35. 384 U.S. 436 (1966).
36. 297 U.S. 278 (1936).
37. See Medalie, Zeitz, &: Alexander, Custodial Police Interrogation in Our Nation's
Capital: The Attempt To Implement Miranda, 66 MICH. L. REv. 1347 (1968).
38. 378 U.S. 478 (1964).
874 Michigan Law Review [\'ol. 67

step in the direction of the goal which the Court seemingly has
in mind-to bar from evidence all admissions obtained from an
individual suspected of crime, whether involuntarily made or not." 39
But this is as it should be; when we reach the conclusion that a
defendant who pleads not guilty may insist that the state prove its
case from sources other than his own mouth, we shall have com-
plied with the spirit of our accusatorial method as well as fulfilled
its implicit promise.40
Professor Levy's book is an historical mainstay not only for those
who welcome extensions of the right of silence, but also for those
who are working to strengthen due process requirements in the
rapidly expanding area of administrative investigations. We are cur-
rently in the midst of an inquisitional trend, and have been for a
century. Inquisitions by officials occur at both state and federal
levels; the number of administrative and executive officials with
inquisitional subpoena powers has increased steadily. A person who
is subpoenaed to appear before such officials should be accorded
certain rights as a matter of due process: the right to counsel whose
role is not limited to ear-whispering; a guarantee of apprisal of the
nature of the inquiry and the subject matter about which he will
be questioned; a copy of his testimony and of any documentary
material he supplies; and immunity from prosecution unless he
waives the right of silence with full understanding.41 Professor Levy's
book will furnish the important historical background for positions
taken by attorneys representing clients both in court proceedings
and in inquisitions by administrative officials; it should be fre-
quently cited, and extensively quoted as well.
0. John Rogge,
Member of the Illinois, New York, and
District of Columbia Bar

39. 378 U.S. at 495.

40. For a fuller presentation of the writer's point of view, see Rogge, Proof by
Confession, 12 VILL. L. REv. 1 (1966).
41. Rogge, Inquisitions by Officials: A Study of Due Process Requirements in Ad-
ministrative Investigations (pt. 1), 47 MINN. L. REv. 939, 948-85 (1968), (pts. 2, 8), 48
MINN. L. REv. 557, 1081 (1964).