Page:Harvard Law Review Volume 5.djvu/97

81 NEMO TENETUR SEIPSUM PROD ERE. 8 1 and may we not suspect that the same is true of another case, not discoverable, also cited by him? * This series of decisions would seem to have established the foundation of the rule which soon afterwards came to be regarded as having a common-law origin, and ultimately took the shape of the present privilege against self-crimination. But nothing can be clearer than that it was a statutory rule, and was so regarded. Many other cases occur in which the rule was disputed in one aspect or another, and the statutory authorities, already referred to, were frequently cited ; but after 1620 no other case seems to occur until 1658. At this point, however, upon a bill for relief and dis- covery, brought on a charge of evading customs laws and attempt- ing bribery, the whole ground was fought over again, in the case of Attorney-General v. Mico, 2 and the matter was again left in an uncertain condition. With Hardres and Archer for the plaintiff, and with Atkins, Stephen, and Shafter for the defendant, the arsenal of arguments was searched and numbers of (apparently) unpub- lished precedents were brought out on either side. The idea of a conflict of jurisdiction as the reason for claiming the privilege against self-crimination appears throughout the defendant's argu- ment. The court, however, rendered no decision. The time had not yet come for the adoption of the privilege in the civil courts. In 1662 a case of a similar sort in the Exchequer 3 was adjourned without decision, though the court inclined to the plaintiff's side. In Scurr v. Chancellor of York, in 1664, 4 the question again arose upon a demand for a prohibition, the plaintiff having been exam- ined on oath on a charge of keeping his hat on in church ; but the case was never decided, according to one report; was decided upon a different ground, according to another report. Keble says that the court was divided. But in Taylor v. Archbishop of York, 5 and in Goulson v. Wainwright, 6 in 1669, the statutory rule was enforced, 1 Hinde's Case, Dyer, 175 (1559), is a mere note, but the absence of any reference to the statute shows how little recognition it had received at that time. The king had appointed a commission to examine into the title of an officer, Skrogs, the clerk of a justice. Skrogs refused to answer, and he was committed to the Fleet. But he was released by the justices of the Common Bench, because "he was a person of the court and necessarie member of it." Now, the reporter adds, " Simile M. 18, fo, p Hind, who refused jurare coram justiciis ecclesice super articulas pro usura." 2 Exch., Hard. 139. 8 Attorney-General v., Hard. 201. 4 Sid. 232 ; 1 Keb. 812 ; quoted in 2 Lev. 247. 5 K. B. ; 2 Keb. 252 ; Jura Eccles. 362. » Sid. 374.