Page:Harvard Law Review Volume 5.djvu/87

71 NEMO TENETUR SEIPSUM PROD ERE. 7 1 NEMO TENETUR SEIPSUM PRODERE. IF there is one example which illustrates better than another the old allegory of the gold and the silver shields, it is the controversy that has attended the maxim Nemo tenetur seipsam prodere. If one instance better than another serves to exemplify the manner in which history may cover up the origin of a legal principle, destroy all traces of its real significance, change and recast its purpose and its use, while preserving an identity of form and leaving it with its vigor of life unabated and its legal orthodoxy untainted, it is this rule that no man shall be com- pelled to criminate himself. In both these aspects, historical and controversial, the story of this maxim is full of interest. Yet of this contrariety of impressions some explanation must be possible, if only it be discoverable. If we can throw the light of history upon this rule from its first appearance down to the time when it received its final shape, we shall be better able to judge how firm is its basis in our system of law, and how strong a claim, merely by virtue of its history and its lineage, it ought to have upon our respect. We may then weigh intelligently the various contesting considerations and be prepared to make a final adjustment of the claims of this principle to the impor- tant place which it now occupies. This we need to do, not only for the sake of reaching a verdict upon the maxim itself, but as well for the purpose of examining the clusters of lesser rules that have grown out of it, and of correcting the anomalies that flour- ish among them. If our verdict is favorable, let us carry the principle to its logical extent and enforce it thoroughly; if unfavorable, let its influence be discouraged and let its operation be modified to the extent which our conclusion may require. What, then, is the history of this rule? Space requires that only a brief sketch be given here, and the filling in of details, with references to the authorities, must be left for another occasion. Briefly, these things appear: 1st. That it is not a common-law rule at all, but is wholly statutory in its authority. 2d. That the object of the rule, until a comparatively late period of its exist-