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Report No. 69

VII. Self-Incrimination

2.40. Privilege against self-incrimination.-

In the early Middle Ages, a party accused had no privilege to refuse to answer incriminating questions.1

The older modes of proof, such as compurgation and ordeal, forced the accused to a direct denial of the charge under oath; and, in the sixteenth century the Legislature had no hesitation in sanctioning forms of procedure which involved an examination of accused persons. The Act Pro Camera Stellata of 1487,2 and many other Acts3 sanctioned such an examination; and Acts of 1553 and 1555 required accused persons to submit to examination by justices of the peace .4

1. Holdsworth History of English Law, Vol. 9, p. 198.

2. 3 Henry VII., C. 1, 1487.

3. 13 Elizbeth, C. 7, x..-bankrupts; 35 Elizbeth, C. 2, II-Jesuits; 43 Elizbeth, C. 6,.-those who abused warrants.

4. 1 & 2 Phil&M, C. 13; 2 & 3 Phil&M, C. 10; Vol. i, 296; Vol. iv, 529.

2.41. Lilburne's case.-

The case of Lilburne is instructive1 in this context. The following is Lilburne's account of the oath he was asked to take in the Star Chamber:-

"and then he bid me pull off my glove, and lay my hand upon the book What to do, Sir said I. You must swear, said he. To what? "That you shall make true answer to all things that are asked you". Must I so, Sir? but before I swear, I will know to what I must swear...

And withal I perceived the oath to be an oath or inquiry; and for the lawfulness of which oath, I have no warrant, and upon these grounds I did and do still refuse the oath."

After being punished for contempt, Lilburne stated that he was condemned "because I would not accuse myself." It may be noted that Lilburne used the old theological argument against the oath-that it violates man's right of self-preservation: "Withal, this Oath is against the very law of nature; for nature is always a preserver of itself, and not a destroyer

1. Trial of Hon., Lilbume, (1697) 3 ST 1315 (1320-21, 1329-1332) (G.B. Star Ch. 1637), cited by Helen Silving, The Oath, (1959) 68 Yale p 1329 (1366).

2.42. Interrogation as a method of investigating violations of the law has a long history. Within the first few pages of the Old Testament, Adam is asked, "Hast thou eaten of the tree 7" and Cain replies to the demand "Where is Abel thy brother?" with an evasive "Am I my brother's keeper?"1

The nature of a typical response by those subject to interrogation does not seem to have changed much over time. Compare Adam's "the woman whom thou gayest to be with me, she gave me of the tree, and I did eat", with what Escobedo,2 the accused in the well-known case, said, "I didn't shoot Mannel (Digerlando) did it."

1. Genesis, 3.11, 4.9-4.10.

2. Escobedo v. Illinois, 378 US 478 (483).

2.43. Right down to the middle of the seventeenth century, the examination of the accused is the central feature of the criminal procedure of the common law.1 Nor do we read anywhere that a witness could refuse to answer on the ground that his answer might incriminate him. The first instance of this was in 16792. It is not till the Commonwealth period that this privilege to refuse to answer incriminating questions is accorded to accused persons.3 Existence of this privilege of the accused was established after the Restoration4; and it was then extended to ordinary witnesses.5

1. See infra, under "The Accused".

2. R. v. Reading, (1679) 7 ST 296, Wigmore, Vol. 4, 3089, cited by Holdsworth History of English Law, Vol. 9, p. 198.

3. King Charles Trial, (1649) 4 ST 1101; Lilburne's Trial, (1649) 4 ST 1292 (1293, 1341).

4. R. v. Screen, (1660) 5 ST 1039.

5. R. v. Reading, (1679) 7 ST 296; R. v. Rosewall, (1684) 10 ST 169.

Indian Evidence Act, 1872 Back

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