Evening star., 1951-04-23
The Privilege Against Se|f-|ncrininotion
By Edxord S. Cornish
CIT REFUSE to answer on the ground
i that it might tend to incriminate

CIT REFUSE to answer on the ground
i that it might tend to incriminate
me-"
A few weeks ago, gangland's moguls
repeated that refrain so frequently that
the radio gags they inspired became a
public nuisance. It should not be for
gotten, however, that the sullen rack
eteers who faced Senator Kefauver
were not the first to use the phrase.
nor are they likely to be the last.
The phrase they used reflects one Of
the cornerstones of our ibertieS-the
privilege against self determination.
Like all privileges, it is liable to abuse.
But although John @. Citizen may some
times doubt it, the privilege is designed
to protect him-not just racketeers and
Communists.
The story Of the privilege. which con-
greSSional investigators have inherited
from court hearings. stretches back
probably as far as the 18th century. It
evolved so gradually, through SO many
English court decisions, that 1t is i'm
possible to say just when it came fully
into existence. In the 18th century,
however, young man named John
Lilburne did more than anybody before
or since to bring the privilege into being.
A law clerk from Durham County,
Lilburne didn't like the way the little
man" was being pushed around in those
days. He took matters in his own hands,
and spent his whole life in a running
battle with the authorities. So argu-
mentative was he that contemporary
remarked: "If the world was emptied of
all but John Lilburne, Lilburne would
quarrel with John. and John with
Lilburne" +..
This outspoken Briton got solicitous
attention from offcialdom. He was a
guest In the Tower Of London, Newgate
and number of other e-boarding
establishments. In fact, the author
tiles were so reluctant to have him
wandering about taking verbal pot-shots
at them that once, after being acquitted
OF charge, he was shunted into jail
anyway, just for "the peace of the
nation"
Lilburne'S role in creating the privilege
against self determination was played
during trial in which he refused to
state whether the books he was accused
Of circulating were his or not. Lilburne
maintained that he should not be re-
quired to aid his prosecutors and convict
himself. Since they were making the
accusation. they ought to prove their
case without any help from him.
Lilburne was convicted and publicly
whipped. But he won his point finally
when the Lords of Parliament ruled that
his conviction and punishment had been
illegal and most unjust, against the
liberty of the subject and the law of
the land and the Magma Charta." After
this celebrated trial. British judges
began accepting the principle that no
man is bound to incriminate himself on
any charge or in any court. Supreme
power was then in the hands of the
King alone, and almost every chance for
individual security and happiness de-
pended on weakening that power. The
privilege was seen as defense against
royal oppression.
The colonists brought the privilege to
America. Virginia, Maryland and five
other States accepted it and saw that
it was incorporated in the Bill of Rights
adopted in 1889. The fifth amendment
states: mo person i. shall be COM
PEELED in any criminal case to be
witness against himself"
Since then, court decisions have made
clear that this constitutional right is
broad one. The privilege is respected not
only in trials where the witness is not
himself defendant, but even in con-
gressional Investigations. which techni-
11Nv Vvyith
formation and not in Furnishing viola
tions. Despite the broad Interpretation,
however, there are few limits. For eX-
ample q lawyer once argued that his
client did not have to appear. because
by giving the court chance to compare
his features with photograph, he would
incriminate himself. That, the judge
decided, was pushing the privilege too
far.
Every few years the privilege runs into
bitter criticism from those who say it is
impeding the prosecution of known
criminals. In 1888 the New York State
Constitutional Convention Committee,
headed by Charles Poletti. grimly re-
ported: 1.-THE detection and conviction
of criminals has so effectively been ham
pered by this license that in order to
secure some evidence, the Legislature
has had to pass various statutes grant,
ing amnesty to criminals"
"a stranger from another legal
sphere" writes John II. Wigmore in his
i0-volume treatise on evidence. might
imagine in the perusa1 Of our precedents
that the guilty criminals was the fond
object Of the courts doting tenderness.
guiding him at every step in the path of
unrectitude. and lifting up his feet lest
he fall into the pits digged for him by
justice and his own offenses."
Though abuses Of the privilege are
sometimes painfully clear. most legal ex-
perts-including Wigmore and Poletti-
seem agreed that it must be kept. They
point out:
/. The privilege lends substance to the
principle that no man is deemed guilty
until so proved. because he is not re-
quired to help build up case against
himself.
2. It induces officers Of the law to