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Thinking that the political situation had changed sufficiently to allow him to emigrate back to England, Lilburne returned to England after Cromwell had dissolved the Rump Parliament. He was arrested in June, 1653, and again placed on trial for his life by the Council of State. Lilburne's strategy was to place the government on trial, too. He reasoned that the indictment of 1651 had been passed by an illegal parliament, since Cromwell had chosen to disband it. On the other hand, if the bill of attainder passed by the now non-existent parliament was valid, then clearly Cromwell's act of dissolution had been a usurpation, "rendering illegal the very government that was prosecuting him."[ 24 ]
Lilburne, as usual, was full of legal objections and technicalities, but was afforded nearly every benefit of common-law procedure. He was successful in wresting a copy of his indictment from the court and obtained the assistance of counsel in challenging it. As usual, he would admit nothing about himself in court, not even that he was the John Lilburne referred to in the act of banishment. He "played his role as Freeborn John with gusto and drama, appealing once and again to the jury to stand fast for English liberties. If he died on Monday, he told them, "on Tuesday Parliament might pass sentence on every one of them and their families, all of London, and eventually all of England." His acquittal was greeted with "joy and acclamation" by the spectators and troops stationed in the court. Cromwell regarded the verdict "as a greater defeat than the loss of a battle would have been."[ 25 ]
In the words of Leonard Levy, "Lilburne's courtroom triumph was his last. Cromwell had a tiger by the tail and simply could not let him go. The risk that he would spearhead intrigues against the government and promote discontent among the people was too great."[ 26 ] Lilburne was kept under strict surveillance in the Tower of London and in the spring of 1654, exiled to the island of Jersey. Eventually he was transferred to prison in Dover, where his health and spirits deteriorated. He finally died two years later, in 1657, at the age of forty-three.
Lilburne's public life was a monument to freedom of the press, religion, and speech. His trials and imprisonments were simply a vantage point from which to attract the attention of the public. He "was animated by a sincere and passionate conception of justice: 'for all that I principally care for', he wrote, 'is to see the thing I engage in be just; and if my conscience upon solid and mature deliberations tells me it is, I will by the strength of God, if once I be engaged in it, either go through with it or die in the midst of it, though there not be one man in the world absolutely of my mind to back me on it'."[ 27 ] Twice he gained acquittals from juries in political trials and he certainly helped establish the trial by jury as the palladium of liberty. But for our purposes here, he, "more than any other individual... was responsible for the acceptance of the principle that no person should be compelled to be a witness against himself in criminal cases. Lilburne had made the difference. From his time, the right against self-incrimination was an established, respected rule of the common law, or, more broadly, of English law generally."[ 28 ]
As early as 1646, other political and religious dissidents in England had been invoking the right to be silent before their accusers. The right was extended to witnesses during the trial of Charles I in 1649 and it was again claimed in 1660 by at least one of the Puritan regicides who was accused of treason. Perhaps the most famous trial of the late 1600s involving this right took place in 1670 and involved the Quakers William Penn and William Mead. Mead and Penn were charged with breaching the peace by unlawfully preaching to a street crowd of some 300 people. The trial began when the judges found the two Quakers in contempt for failing to remove their hats in court. Mead was questioned by the court recorder whether or not he had been present at the meeting and heard Penn preaching. Mead responded that
it is a maxim in your own law, 'nemo tenetur accusare seipsum'; which if it be not true in Latin, I am sure it is true English, 'that no man is bound to accuse himself.' And why coudst thou offer to ensnare me with such a question? Doth not this show thy malice? Is this like unto a judge, that ought to be counsel for the prisoner at bar?
Howell, the recorder, explained that he did not go about intending to ensnare Mead, but admitted shortly thereafter that Mead was "an enemy to the laws of England" and "not worthy of such privileges as others have." Yet, the court dropped the incriminating question.
The balance of their trial relates to Penn's insistence on liberty of conscience, his challenge to the indictment, and the "celebrated fight over the jury's verdict." The jury originally found Penn guilty of speaking, but not guilty of speaking to an unlawful assembly. After being browbeaten by a court that refused to accept their verdict, the jury changed its verdict to a clear acquittal of both men. "Penn himself contributed to their courageous stand by his stirring speeches in favor of the freedom of an English jury to decide according to their consciences without being menaced by the court. In the end, the court fined the members of the jury forty marks each and imprisoned them till they paid; they had followed their own 'opinions, rather than the good and wholesome advice which was given' by the judges. Edward Bushell and three other jurors appealed their fines, and the Court of Common Pleas held that a jury could not be punished for its verdict. After Bushell's case in 1670, the courts no longer questioned nor molested a jury because of its verdict in a criminal case."[ 29 ]
As the right not to be compelled to be a witness against oneself continued to be invoked in England, its scope gradually expanded to include civil cases, "with respect to questions that might require disclosure of information which could be used against a person in a criminal proceeding...." "Thus the initially vague maxim that no man is bound to accuse himself had come to mean that he was not required to answer against himself in any criminal cause or to any interrogatories that might tend to expose him to prosecution." The most extreme advocates of this right, Lilburne and the Levellers, claimed it as a right to "not answer any questions concerning themselves, if life, liberty, or property might be jeopardized, regardless of the tribunal or government agency directing the examination, be it judicial, legislative, or executive." Today that right "is available at all stages and in all types of official proceedings" and "applies in all governmental proceedings where witnesses are summoned, - in all kinds of courts, in grand jury inquiries, and in administrative and legislative investigations."[ 30 ]
It is possible to see the integral and important role the right against self-incrimination played in the development of the common law. The whole presumption of a person's innocence until proven guilty rested on one's right not to be forced to incriminate oneself. If the prosecution could force a man to convict himself out of his mouth, or alternatively, prove his guilt by his silence, then there was no such thing as the presumption of innocence. The right to silence harmonized with the idea that a man was innocent until proven guilty of a crime and that the burden of proof rested on the prosecution to prove him positively guilty. It provided protection against a man's home being broken into for evidences of his reading or writing, since no such evidence could be used in court against him. It prevented judicial torture, since it was held that coercing a confession from a man was unfair and illegal. It was indirectly related to the right of counsel and the right of calling witnesses in one's defense, since it made possible the silence of the defendant yet enabled him to present a defense without answering direct questions. In the words of Leonard Levy, the right against self-accusation was
most closely linked to freedom of religion and speech. It was, in its origins, unquestionably the invention of those who were guilty of religious crimes, like heresy, schism, and nonconformity, and, later, of political crimes, like treason, seditious libel, and breach of parliamentary privilege - more often than not, the offense was merely criticism of the government, its policies, or its officers. The right was associated then with guilt for crimes of conscience, of belief, and of association. In the broadest sense it was a protection not of the guilty, or of the innocent, but of freedom of expression, of political liberty, of the right to worship as one pleased.... It was part of the heritage of liberty which the common law bequeathed to the English settlers in America.[ 31 ]
The development of the right to silence in America -- compared to its origins in England -- illustrates a significant difference in the way respect for individual rights grew in both countries. Despite the fact that Lilburne and others harked back for their justifications to Magna Carta and the Petition of Right of 1628, there was no written confirmation of the right against self-incrimination in any English constitutional or parliamentary document. When the Virginia Declaration of Rights was drawn up by George Mason in 1776, it became the first constitutional document in the English speaking world to embrace this right. The Declaration's Article 8 anticipates many of the rights guaranteed in the 5th and 6th amendments to the U.S. Constitution. The right against self-incrimination was constitutionalized that no man "be compelled to give evidence against himself" in a capital or criminal proceeding.[ 32 ]
During the last half of the 17th Century, the right against self-incrimination became "so well established in the customary law of England that it was never even thought necessary by an English Parliament to pass an act or resolution touching the matter."[ 33 ] By the time of the English Bill of Rights in 1689, this right had become so universally recognized that "to have inserted it would have been very much like reaffirming the law of gravitation." McCauley, an English historian, says this would have been like introducing a rule against torture, when it was no longer accepted as a legal practice.
Torture was not mentioned in the Petition of Right, or in any of the statutes framed by the Long Parliament. No member of the Convention of 1689 dreamed of proposing that the instrument which called the Prince and Princess of Orange to the throne should contain a declaration against the using of racks and thumbscrews for the purpose of forcing prisoners to accuse themselves. Such a declaration would have been justly regarded as weakening rather than strengthening a rule which had been proudly declared by the most illustrious sages of Westminster Hall to be a distinguishing feature of the English jurisprudence.[ 34 ]
In many ways, the growth of and recognition of the right against self-incrimination represents the evolution of the unwritten common law. Once Lilburne and others had invoked it and then successfully established it, the right came to be respected by the common law courts. The constitutional settlement of 1689, resulting in the English Bill of Rights, did not mention this right, although confirmation of other legal procedures was present. For example, mention was made that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"; and that armies not be raised in peace time nor be quartered in private homes.
The important point to grasp is that English liberties did not need to be enshrined in parliamentary or extra-parliamentary documents in order to be secure. As Bernard Schwartz, author of many books dealing with English and American constitutional history, has written: "One who looks only at the written law in tracing the history of English liberty is bound to obtain an incomplete and distorted picture."[ 35 ]
Early English liberties consisted of a number of widely accepted individual rights, which people, such as Lilburne, had battled for. The true basis of the English antecedents to the American Bill of Rights, and in particular the right of any person (found in the 5th Amendment) not to "be compelled in any Criminal Case to be a witness against himself", is not documentary but customary. Schwartz seconds A. V. Dicey's observation that "The security which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document." The enactment of constitutional bills of rights or parliamentary statutes are "records of the existence of a right" rather than "statutes which confer it." Freedom for the Englishman grew out of custom and tradition and not legislated law.[ 36 ]
At the time of the ratification of the U. S. Constitution, there was some discussion as to whether or not customary rights, such as the right against self-accusation, should be embraced in a Bill of Rights. The Federalists often had very libertarian arguments against the adoption of a Bill of Rights, but they did not realize the contradiction between supporting a federal constitution and opposing a bill of rights. They seemed to be oblivious that their arguments against a Bill of Rights could be applied to the Constitution itself. John Dickinson, a leading federalist "stressed that liberty could not really be secured by written guarantees such as those in 'a bill of rights, or any characters drawn upon paper vs parchment, those frail remembrances'."[ 37 ] Dickinson's point is actually very anti-constitutional in the sense that it points out that the only true defense against government is an adequate understanding on the part of the people of their rights and their willingness to defend them. The surest sanctuary of freedom for any people is not in constitutional guarantees or bills of rights, but in the minds of the people and the attitudes that they have toward those who encroach on their rights.[ 38 ] They must understand that their rights do not emanate from such documents but rather from their own individual self-ownership, despite the fact that historically at times these rights have been embraced in such documents. To some degree at least, there was throughout the colonies "a very broad understanding that man's rights were founded in the natural law" of self-ownership and not from kings or written documents.[ 39 ]
Even as early as 1766, John Dickinson in his "Address to the Committee of Correspondence in Barbados" wrote that "Kings or parliaments could not give the rights essential to happiness,.... We claim them from a higher source-.... They are not annexed to us by parchment and seals. They are created in us by the decrees of Providence, which establishes the laws of our nature." "Our liberties," he added, "do not come from charters, for these are only the declaration of preexisting rights."[ 40 ] John Adams, in a similar vein wrote, that "British liberties are not the grants of princes or parliaments, but original rights, ...; that many of our rights are inherent and essential, agreed on as maxims and established as preliminaries even before a parliament existed."[ 41 ]
The great danger of embracing individual rights in a bill of rights is that latter generations, who have not had to fight for them, come to forget that these are rights they possess as individuals and not grants or privileges given to them by governments. Relying on a 5th Amendment argument against self-incrimination is inherently self-defeating because it already implies that if the 5th Amendment were changed or altered, then one would no longer have a reason for claiming the right to silence. The claim derives from one's existence as a person and is not derived from its codification in any constitutional document. We do not speak of our "right to property" as being derived from the Bill of Rights, and it is false and misleading to refer to our right against self-incrimination as a "5th Amendment" right.
Many commentators, especially 20th Century jurists, have more often than not referred to the right against being compelled to be a witness against oneself as "a privilege." Leonard Levy in his preface to The Origins Of The Fifth Amendment makes an emphatic point of stressing that "the legal profession customarily refers to the right against self-incrimination as a 'privilege,'" but Levy insists on calling it a 'right' because it is one. Privileges are concessions granted by the government to its subjects and may be revoked."[ 42 ] Black's Law Dictionary makes the distinction plain by defining an "inherent right" as "one which abides in a person and is not given from something or someone outside itself. A right which a person has because he is a person."[ 43 ] The confusion almost seems to have come about as a result of its constitutionalization in the Bill of Rights. Who knows how 20th Century jurists would have referred to the right against self-incrimination if it had not been codified in the 5th Amendment? However they might have referred to it, the point is that there is a vital distinction between claiming something as a right and a privilege. A privilege can be revoked at the command of the government, whereas an inherent right cannot be.
The main point is that people should look more towards understanding their inalienable rights as individuals and rely on their rational distrust and rejection of government and its power rather than anticipating that laws will secure their liberty. Even if a people, such as the American colonists, start out with the idea that their natural rights can be protected by a Bill of Rights, it soon becomes clear that this outlook only masks a misunderstanding. All of our rights, like freedom of religion and freedom of press and assembly are essentially derivatives of property in ourselves and the exterior world around us. As such, they derive from the principle of self-ownership and our ancestor's ability to homestead unowned and unused property. If we allow government to "guarantee" our rights for us, we most likely will end up losing them. Any government that is strong enough to "guarantee" rights, is automatically suspect and probably already strong enough to violate them.[ 44 ] Both history and theory confirm that this is true.
In one sense, the right against self-accusation is but a subset of the broader right "to be let alone." In a 1927 dissent, Justice Brandeis referred to this right as "the most comprehensive of rights and the right most valued by civilized men."[ 45 ] The right to be left alone can be readily measured by the extent that government employees confiscate property from individuals and to the extent one becomes a criminal by minding one's own business. Surely no government could long exist if it did not have the power to compel from people some information about themselves.[ 46 ] This freedom from coercion is what the institution of government inevitably must violate or else cease being a government. Despite all the constitutional protections in the world, a government must necessarily abridge this right if that government is to exist. The right to one's person may be said to be a right of complete immunity from outside interference.[ 47 ] This means that no one, whether called a government employee or not, has the right to interfere with the activities of another peaceful person; but then no government can exist without violating this right. That is why the right to be let alone is irreconcilable with the existence of government.
Even if a government exists, it becomes hard pressed to obtain information from those over whom it rules if they have the right to refuse to provide it with information which may serve to incriminate themselves. Governments, because they are invasive institutions, are caught in a catch-22 situation. If they do not enact criminal sanctions against those who refuse to cooperate and refuse to provide it with information about themselves, then they have no basis on which to coerce such cooperation. On the other hand, when they enact criminal sanctions for failure to cooperate, they automatically place such an action under the category of "incriminatory." The financial affairs of an honest person are not (criminally) incriminating, except for the fact that the government makes a failure to disclose such information a crime.
The presumption of innocence is intimately related to the right against self-incrimination. Who shoulders the burden of proof in establishing innocence or guilt is a crucial question bearing on this right. If the individual has the burden, then it is possible that the person may be forced to reveal incriminating evidence in establishing his or her innocence. On the other hand, if the burden is on the government to establish guilt, the individual retains the right to be silent. If the government cannot establish guilt, then the person is innocent under this presumption. By not being forced to offer evidence in his or her favor, a person cannot be coerced into supplying any evidence at all. These issues are dramatically brought out in both Udall's and Lilburne's confrontation with the authorities. As Udall said, he was not bound to prove his innocence, but his accusers were bound to prove his guilt.
It is largely in contempt hearings, especially those involving the right to remain silent, where the consideration of the burden of proof plays an important role. The courts have sometimes determined that a person cannot "be jailed for contempt for invoking his constitutionally protected privilege not to be a witness against himself."[ 48 ] It is in such cases, especially when a judge orders a defendant to offer evidence against himself that the conflict between governmental power and individual rights, is clearly set forth. If a person be threatened with penalties of imprisonment or fines for failure to disclose incriminating evidence, then what has happened to right of silence? It is really no different than Star Chamber proceedings, when interrogatories were addressed to the defendants and upon their refusal to swear or answer, they were jailed. A judge who holds a defendant in contempt for his refusal to answer is responding no differently than his Star Chamber counterpart of 300 years ago.
It is strange that little has been written specifically in libertarian literature concerning the danger of the contempt power.[ 49 ] While all governmental power is criminal, the contempt power places the most tyrannical powers in the hands of a single individual: the judge. Two early cases of contempt will illustrate this assertion. The first pre-dates even Lilburne's experiences with the Star Chamber. Richard Chambers, an English merchant, refused to pay tonnage on imported goods. He was ordered before the Star Chamber and at some point in the proceedings cried out that "the merchants are in no part of the world so screwed and wrung as in England; that in Turkey they have more encouragement." He was found guilty of contempt and ordered to pay a fine of 2000 pounds and ordered "imprisoned until he made a submission that he had committed a wrong." Chambers, a sturdy Puritan, absolutely refused to sign the submission tendered to him. Instead, he wrote at its foot, "I ... do utterly abhor and detest, as most unjust and false; and never till death will acknowledge any part thereof ." He languished in jail for 6 years before he was released.[ 50 ]
The second case involves William Bingley, printer of No. 50 of the North Briton, which accused Lord Mansfield of having acted as counsel for the prosecution in relation to the case of John Wilkes (much of English case law against unreasonable search and seizure stems from the Wilkes case). Bingley was brought before the Court in June, 1768, and remained in jail for 10 weeks. He was released and committed again in January, 1769, for refusing to answer interrogatories about the authorship of the libelous articles. He remained in prison until June, 1770, when the Attorney General came to the conclusion that Bingley had been sufficiently punished. Sir John Fox, one of the few English commentators on contempt, noted that "On principle [Bingley] should have remained there [in jail] for the rest of his life or until he submitted...." Fox was aware of the paradox of compelling an alleged offender to answer interrogatories, even though "it is pointed out that by our laws no man can be bound to accuse himself." If an offender fails to answer questions put to him by the judge and he is committed in default to prison, "the necessary conclusion is that a man can be bound to accuse himself although by law it is forbidden."[ 51 ]
There are many contemporary examples of this paradox. Some serious conflicts arose when people were quizzed by the House Un-American Activities Committee during the McCarthy era. They were often asked about their alleged communist sympathies or required to produce books and records belonging to organizations which were supposed to be communist fronts. Their refusal to testify or comply placed them in contempt and many went to jail rather than be forced to speak. The Supreme Court upheld their jailings, but one dissenting judge likened their convictions to judging a man guilty for simply standing mute.[ 52 ] All contempt power, whether it be civil or criminal, essentially aims at provoking a positive act on the part of the offender. Normally a man is held as a criminal for violating rights, which usually requires an act of commission on his part. To hold a man guilty for something he has not done is reversing the scales of justice and the presumption of innocence.[ 53 ]
Although the Internal Revenue Service cannot hold anyone directly in contempt, they are able to petition federal judges to issue enforcement orders, which effectively coerce people into cooperating with them or else be found in contempt of the judge's order. Here again surfaces the paradox of the contempt power. Someone can be jailed for refusing to reveal incriminating personal information to the Internal Revenue Service. In such cases, what actually occurs is that "the inherent power of the courts to punish for contempt" is being used "to aid an administrative body and to compel obedience to its requirements." The court then becomes merely an assistant to the IRS. There are few procedural or constitutional safeguards involved in contempt proceedings and one is literally at the mercy of one's judge.[ 54 ] This is why it is not far from the truth to refer to the Internal Revenue Service as the 20th century's Star Chamber.
The author's own experiences with the government in late 1983 lend credence to this view of the IRS. As a conscientious objector against taxation, the author for many years purposefully held his income below the filing limits set by the government. He therefore had no obligation to file returns. When the IRS noted that he had ceased filing, they contacted him for reasons as to why they had not received returns from him. The author refused to supply any information and claimed his right to remain silent. Finally, after 5 years, he was served with an administrative summons issued by the IRS. This was ignored inasmuch as the author refused to recognize its jurisdiction over him. Eventually the IRS requested that a federal district judge issue an enforcement order, directing that the author appear before the IRS and furnish them with all information relative to his income and financial dealings during the period 1976-1982. He refused to contest the consideration of the enforcement order, but eventually did appear before several Internal Revenue agents and asserted his right not be bear witness against himself.
Since this appearance did not satisfy the IRS, they petitioned the federal judge to find the author in civil contempt for failure to abide by the enforcement order (in other words, although the author appeared, he refused to supply the IRS with any information at all, even that his income was below the taxable level). At the contempt hearing, the judge found him in contempt even though it was pointed out that a person has the right not to answer incriminating questions. The author was sentenced to 40 days in jail for his contempt of court, unless he provided the requested information. Although the author was accused of no crime, he was placed in a jail cell for his failure to obey the judge's order and served his time in full.
This action for civil contempt illustrates the "Star-Chamber like" aspects of the government's ability to find its citizens in contempt. First of all it demonstrates how much the basic right "to be let alone" if you have not caused harm (physical) to another, has been disregarded. The right to refuse to bear witness against oneself places the presumption of proof on the government, not on the citizen. Secondly, civil contempt proceedings are exempt from reconsideration by trial by jury and therefore are effectually unappealable. This gives the judge unlimited powers of punishment. At least in cases of criminal contempt of court, judges are limited by the Supreme Court's decision that any person who receives a contempt sentence of more than 6 months has a right to a jury trial.
Dissidents and tax protesters in many areas of the United States have been placed in jail on both civil contempt and criminal charges (such as failure to file income tax returns). Recently a group in Idaho was prosecuted by their state government for refusal to supply it with information regarding their personal income. At least 6 people were placed in county jails for their refusal to cooperate. All governments are faced with the dilemma of having to initiate violence or threats against those citizens who will not voluntarily cooperate. It is as though the refusal to do business with the State is a crime. Even conscientious objectors who want nothing to do with any government are forced to deal with it. And that illustrates the difference between a private business (no matter how large a corporation it might be) and the government. No private corporation can put a person in jail for refusing to trade with it or for refusing to supply it with information about one's personal finances.
People who have consistently refused to bear witness against themselves over the centuries were refusing to accuse themselves and to provide government with information which could be used to criminally convict them. They were, in effect, refusing to cooperate with the government's violation of individual rights. If enough people did that over time, governments would find it increasingly difficult to violate individual rights. Tax collection and the exercise of other aspects of government coercion and confiscation would be stymied when people did nothing more than say, "No," and remain silent. No right-thinking person could willingly cooperate with a criminal gang intent upon despoiling and victimizing peaceful people. Thus the right to silence, the right to refuse to bear witness against oneself, the right against self-accusation, and the right to be let alone are key rights in opposing the initiation of force by governments against its citizens.[ 55 ]
Carl Watner
November 1983
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[ 24 ] Ibid., pp. 309-310.
[ 25 ] Ibid, p. 311.
[ 26 ] Ibid, p. 312.
[ 27 ] M A. Gibb, John Lilburne: the Leveller, London: Lindsay Drummond Ltd, 1947, p. 144. With regard to Lilburne's imprisonment, generally see William Haller, op. Cit., Vol I, p 104. The other major Lilburne biography is Pauline Grege Free-Born John, London: George G. Harrap & Co., 1961.
[ 28 ] Levy, op. cit., p. 313.
[ 29 ] Ibid, pp. 314-315. Also see extracts of the trial in Isidore Abramowitz, The Great Prisoners, New York: E. P Dutton & Co., 1946, pp 271-288.
[ 30 ] Levy, op. cit., pp. 330-331. Also see John H. Wigmore, A Student's Textbook of the Law of Evidence, Brooklyn: The Foundation Press, 1935, p. 371 and Abe Fortas "The Fifth Amendment: Nemo Tenetur Prodere Seipsum," 25 The Journal of the Cleveland Bar Association (April 1954) p. 100.
[ 31 ] Levy, op. cit., pp 331-332.
[ 32 ] Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights, New York Oxford University Press, 1977, pp. 71 and 88.
[ 33 ] R Carter Pittman, "The Colonial and Constitutional History of the Privilege Against Self-incrimination in America', 21 Virginia Law Review (1935), p. 774.
[ 34 ] Ibid.
[ 35 ] Schwartz, op. cit., p. 23.
[ 36 ] Ibid, p. 24. For the original quotation see A. V. Dicey, Introduction to the Study of the Law of the Constitution (9th ed), London: MacMillan & Co., 1939, pp. 206-207. Also see ibid, pp. 186- 187.
[ 37 ] Schwartz, op. cit., p. 112.
[ 38 ] Robert Rutland, The Birth of the Bill of Rights, 1776-1791, Chapel Hill: University North Carolina Press, 1955, p. 229.
[ 39 ] Charles J. Antieau, Rights of our Fathers, Vienna, Va.: Coiner Publications, 1968, p. 177.
[ 40 ] Ibid, p. 173.
[ 41 ] Ibid, p. 191.
[ 42 ] Levy, op. cit., p vii.
[ 43 ] Henry Campbell Black, Black's Law Dictionary (5th ed.), St. Paul: West Publishing, 1979, p. 704.
[ 44 ] Herbert J. Storing, What the Anti-Federalists Were For, Chicago: The University of Chicago Press, 1981, p. 69. Several other comments from this work are appropriate. One federalist admitted "that no bill of rights can add anything to men's natural rights," (p. 70) and it was noted that "it is next to impossible to enslave a people immediately after a firm struggle against oppression, while the sense of past injury is recent and strong. But after some time this impression naturally wears off; - the ardent glow of freedom gradually evaporates;.... "(p. 75).
[ 45 ] Justice Brandeis, dissenting in Olmstead v. United States, 277 US 438 at 478. On the right to be left alone, generally, see Daniel J. Dykstra, "'The Right Most Valued by Civilized Man " 6 Utah law Review (1959), pp. 305-322; Erwin Griswold, "The Right to be Let Alone, "55 North Western University Law Review (1960-1961), pp 216-226; and the historical part of the Supreme Court decision in Miranda v. State of Anzona, 384 US 459 at 459-461.
[ 46 ] Robert Gerstein, "Privacy and Self-incrimination, "80 Ethics (1970), p.. 89.
[ 47 ] Thomas Cooley, A Treatis on the Law of Torts (3rd ed), Chicago: Callaghan & Co., 1906, p. 33.
[ 48 ] Two general discussions of the burden of proof can be found in Francis Lieber, On Civil Liberty and Self-Government Vol II, Appendix III, "A Paper on Subjects Connected with the Inquisitorial Trial and the Laws of Evidence," Philadelphia: Lippincott, Grambo & Co., 1853; and Glanville Williams, The Proof of Guilt, London: Stevens & Sons, 1955, Chapter 7, "The Burden of Proof". For the specific citation in the text see Patterson v. United States, 219 Fed Reporter 2d659 at 662. This case is cited in a study by Ronald Goldfarb, The Contempt Power, New York Columbia University Press, 1963, p. 252. The Patterson case also illustrates how contempt citations are not subject to the protection from double jeopardy. Defendant served a 90 day contempt sentence July I to Sept. 28, 1954, for refusal to submit receipt books with members' names. "Immediately after release from prison, defendant was again asked for the receipt books, this time including the 1953 ones, by an Internal Revenue agent. ...Judge Weinfield ... imposed a contempt sentence on November 19 when they were not produced "219 Fed 2d 660.
[ 49 ] In his discussion of the "The Courts", Murray Rothbord criticizes the concepts of coerced testimony, the subpoena power, bail, and compulsory jury service. Any coerced service is slavery, according to Rothbard. Furthermore, no one should be forced to appear at trial, even the accused, because they are innocent until proven guilty. See Murray Rothbard, For a New Liberty, New York: MacMillan Co., 1973, pp. 95-100.
[ 50 ] Schwartz, op. cit., p. 142. Also see O. John Rogge, The First and the Fifth, New York: Thomas Nelson & Sons, 1960, p. 153.
[ 51 ] Sir John C. Fox, The History of Contempt of Court, Oxford: At the Clarendon Press, 1927, pp. 16-17 and 35-37.
[ 52 ] See Justice Douglas' dissent in McPhaul v. United States, 364 US 372, at 386. For "the story of Congressional investigations" into communist sympathizers during the 1950s (as it relates to the refusal to bear witness against oneself), see Telford Taylor The Grand Inquest, New York: Ballantine Books, 1961 (1st published 1955). Especially of interest is Chapter 7, "The Privilege Against Self-Accusation."
[ 53 ] Alexander Pekelis, "Legal Technique and Political Ideologies: A Comparative Study," 41 Michigan Law Review (1942-1943), pp. 673-674.
[ 54 ] See the very interesting dissent of Justice Brewer in Interstate Commerce Commission v. Brimson at 155 US 1, which was delivered in 1893. Much of Brewer's argument is paraphrased in my text.
[ 55 ] Levy op. cit., p. 284. Levy argues that as long "as there were crimes like non-conformity and seditious libel, men would have to assert their right against self-accusation. That right "was a product" of "political persecution." The same argument obviously applies to the conscientious objector against taxation who is subject to crimainal penalties for holding and acting on his beliefs.
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