hen a constitutional provision, designed to preserve liberty, is redefined to serve another or different purpose, we are put on notice that it may be redefined again to serve still another and that a guardian of liberty may become its pallbearer.

The privilege against self-incrimination is such a provision. As stated in the Fifth Amendment: "No person . . . shall be compelled in any criminal case to be a witness against himself".

In numerous decisions, beginning with Counselman v. Hitchcock(1) and coming down through Quinn v. United States,(2) Emspak v. United States,(3) and Bart v. United States,(4) the Supreme Court has extended the privilege until the words "in any criminal case" have been completely and effectively deleted from the privilege.

The latest extension of the privilege is, in its broadest application, to congressional investigations which everyone must know and concede are not and cannot fall within the meaning of the Fifth Amendment privilege unless the words "in any criminal case" are completely ignored.

In Quinn v. United States(5) one of the dissenting judges expressed his wholehearted assent to the judicial amendment of the self-incrimination clause by striking the words "in any criminal case" therefrom, but he protested against the new rule laid down by the Court in that case, under which a contumacious witness must now be given a formula for claiming the privilege and after refusal to answer must be pleaded with a second time in order to get his "intent" not to answer set up. Justice Harlan, being new and uninitiated, couldn't approve the "new rule." He said:

"Interference"? "Effrontery" is a better word!

Chief Judge Magruder of the First Circuit Court, in the case of Maffie v. United States,(6) wisely observed:

That truth is a challenge to the writer now as was the same truth more than twenty-five years ago when he prepared for publication an article which attempts to tell some of that "forgotten history."(7)

In 1935, the writer said:(8)

During the intervening years nothing has occurred to alter that opinion. It is still true that those who claim the privilege against self-incrimination are guilty of that about which they refuse to testify. That is the only respectable reason for claiming it. We have forgotten that the privilege matured as a handmaiden of the jury system which is the distinguishing feature of Anglo-Saxon jurisprudence. Like the jury system, and like the presumption of innocence, it was designed to shield patriots from arbitary power -- not criminals from all power. The Jeffries and Scroggs of history have helped to mature it. So have jurors such as those who served in Rex v. Penn and Mead(9) who suffered judicial torture rather than assent to a guilty verdict.(10)

Many questions have arisen with respect to the privilege against self-incrimination that remain unanswered. A question, with late emphasis, is why were the words "in any criminal case" inserted into the Fifth Amendment? Do they have meaning, and if they do what is that meaning?

The privilege as first phrased by George Mason for Virginia's Declaration of Rights, in May, 1776, was:

As we have noticed, the express language of the Fifth Amendment relieves one from testimonial compulsion only in a "criminal case". The privilege as stated by Mason applied not only to criminal cases, but it applied to "all capital or criminal prosecutions".

The word "prosecutions," as used by Mason, seems to mean following up, through the instrumentalities of governments, of a person accused of a public offense, with the steady and ultimate purpose of reaching a determination of the guilt or innocence of the accused. The word "case," as used in the Fifth Amendment, has a more narrow meaning. A "case" may result from a "prosecution" that matures into a "case" at that point where it first takes such form that the judicial power is capable of acting upon it.

Why did Mason use the phrase: "capital or criminal prosecutions"? Was it possible for "capital prosecutions" to be carried on that were not at the same time "criminal prosecutions"? English history affords examples of "capital prosecutions" that were not "criminal prosecutions." An attainder, forbidden in the body of the United States Constitution, might be a "capital prosecution," and not necessarily a "criminal prosecution." Neither George Mason's Virginia Declaration of Rights of June, 1776, nor his Virginia Constitution, adopted on July 5, 1776, prohibited bills of attainder or the passage of ex post facto laws. Mason regarded bills of attainder as necessary at times. On September 8, 1787, in the Constitutional Convention in Philadelphia, Mason pointed out that "As bills of attainder which have saved the British Constitution are forbidden, it is more necessary to extend the power of impeachments," and on his motion at that time the congressional power of impeachment was liberalized in order that the representatives of the people might prevent "attempts to subvert the Constitution (which) may not be treason as above defined."

It is understandable that Mason should have extended the Virginia privilege against self-incrimination to legislative "prosecutions" in the nature of attainders such as found sanction in England and in most of the colonies at that time. While Mason was not a lawyer by profession, he was certainly the best constitutional lawyer in Virginia. The Virginia House of Burgesses and later the House of Delegates habitually dragged him out of retirement to "state the case" for Virginia both as colony and as commonwealth. A constitutionalist must know history. He knew it.

A short time before Mason prepared the Virginia Declaration of Rights, Governor Dunmore of Virginia, who, with his Council, exercised judicial, executive and legislative powers in various degrees, had sent out to distant counties for persons suspected of forging paper currency and had them brought before him and his council in Williamsburg where he set up a new model Star Chamber and examined the suspects with undue severity, seeking to make them incriminate themselves. Since forging paper currency in Virginia was then a capital crime, Governor Dunmore was seeking to make them hang themselves. There was no law or precedent justifying such conduct. The House of Burgesses protested violently by special resolution setting forth that the Governor's proceeding was:(11)

The resolution then proceeded:

The action of Governor Dunmore was not in a "criminal case". Whether the conduct of Dunmore was in the "usual mode" or was "different from the usual mode", it was a part of a "capital or criminal prosecution." Thus the privilege against self-incrimination, as framed by George Mason, covered all prosecutions, whether judicial, legislative, or executive so long as those prosecutions were either "capital or criminal". But when the privilege went into the Fifth Amendment it was so narrowed down that it could only be constitutionally asserted in a "criminal case". Why? That question may be solved if we can but uncover the "forgotten history."

In order to better understand the evolution of the privilege from May, 1776, until it was adopted as a part of the Fifth Amendment on December 15, 1791, it may not be inappropriate or unprofitable to follow it chronologically and step by step.

The Virginia Declaration of Rights, originally written by George Mason in May, 1776, and proposed by the Report of the Official Committee on June 1, 1776, contained eighteen paragraphs. The official draft adopted on June 12 contained sixteen paragraphs. The Committee draft was published in the Virginia Gazette of June 1.

The first unnumbered paragraph appearing in the Virginia Gazette was as follows:

As it appeared in the Pennsylvania newspapers of June 6, 8 and 12 and in the Maryland Gazette of June 13, the Committee draft appeared not as in the Virginia Gazette but was preceded by the following paragraph:

A bit of "forgotten history" is that the Declaration, as "printed for the perusal of the members," was sent to newspapers throughout America and from thence to the four corners of the earth.

The first line of the first paragraph of the Committee draft, so widely copied in America and France, was: "That all men are born equally free and independent."

The first line of the first paragraph, as revised in the official draft, was: "That all men are by nature equally free and independent."

The official draft was virtually unknown beyond the limits of Virginia for fifty years after its adoption. The Committee draft was the one copied elsewhere. It was the one translated into French and published in France by Franklin first in 1778 and in several editions thereafter. The official draft was never published in a bound book with other American Constitutions until it appeared in an obscure Winchester, Virginia, edition in 1811. No change was made in the statement of the privilege against self-incrimination by the Convention.

The Pennsylvania Convention that met on the fifteenth day of July, 1776, adopted a declaration of rights and, as stated in the Diary of John Adams for June 23, 1779, Pennsylvania copied the Virginia Declaration of Rights "made by Mr. Mason . . . almost verbatim."(12) Her first line was: "That all men are born equally free and independent."

The privilege against self-incrimination, as adopted by Pennsylvania in September, 1776, appeared in paragraph 9 as follows:

Maryland came next and put it this way in paragraph 20:

Delaware followed, stating the privilege in paragraph 15 of her Bill of Rights like this:

North Carolina came next in December, 1776. In Section 11 it was stated:

Although Vermont was not a state abroad she acted the part at home and adopted a Declaration of Rights in 1777. The privilege appears in her paragraph 10 like this:

A few weeks after John Adams made the tell-tale entry in his Diary, mentioned above, while aboard the ship Le Sensible, en route from France to America, he was named on a committee to write a Declaration of Rights for Massachusetts. He could do no better than others had done. By that time it was like picking the same old tune at a "hoe-down." He, too, copied the Virginia Declaration of Rights "almost verbatim." The privilege against self-incrimination was re-stated in his paragraph 12 as follows: "No subject shall be . . . compelled to accuse or furnish evidence against himself."

The Adams restatement of the Mason original next found its way into the Declaration of Rights of New Hampshire in June, 1784, as follows: "No subject shall be . . . compelled to accuse or furnish evidence against himself".

John Adams broadened the privilege so as to make it applicable to the person, or "subject," wherever he might be. Mason's statement related the privilege to any proceeding that formed a part of prosecutions.

For reasons that would require more space to fully outline than is allowable, no one suggested the necessity of a Bill of Rights in the Constitutional Convention of 1787 until the afternoon of September 12, near the end of the Convention. Likewise, until the morning of the same day, the words "herein granted" had not appeared in the granting clause of Article I of the Constitution so as to restrict all lawmaking powers to elected representatives, as is an absolute essential to republican government, and so as to specifically restrict the Congress to the legislative powers catalogued in the Constitution itself. That has more significance than meets the eye. George Mason finally induced Gouverneur Morris of the Committee of Style to insert the words "herein granted" into the granting clause by a threat that such was an absolute condition precedent to his approbation. It was passed over unnoticed by the Committee of the Whole on the morning of September 12, 1787. At last Mason breathed a sigh of temporary relief.

Once the limitation on legislative power became fixed in the bedrock of the Constitution, Mason decided that it was time to strike for a bill of rights. He and Elbridge Gerry had planned it that way. He introduced the subject in a most disarming way, during a discussion opened by Gerry, a brilliant delegate from Massachusetts, while urging "the necessity of juries to guard against corrupt Judges". Mr. Gorham, of Massachusetts, alluded to equity cases in which juries are not used, and then, according to Madison's Notes of September 12, the following occurred:

As is well known, the minions of consolidated power were "put out" with the two reactionary conservatives who brazenly urged the rights of men over power. They were promptly "put in their places" by a unanimous vote of the states against the motion -- Madison's Notes, changed in old age to show a tie, to the contrary notwithstanding.

When Mason said: ". . . with the aid of the state declarations, a bill might be prepared in a few hours," he furnished the key to a secret and a bit of forgotten history that has never been revealed at any other place or time.

As is well known, the Constitutional Convention adjourned five days after George Mason's motion for a bill of rights was defeated by the unanimous vote of the states in convention. Mason's aging mind was aflame. As others were preparing to leave Philadelphia, he paused to write his Objections to the Constitution that was to be read on every frontier and in every hovel of America. His first six words were: "There is no declaration of rights"!

In a letter to Thomas Jefferson dated October 24, 1787, Madison pictured history's grand champion of human liberty and dignity at the last scene in Philadelphia:

Either prior to September 12, 1787, in Philadelphia, or at Gunston Hall, or in Richmond, prior to June 9, 1788, Mason devoted a "few hours" to the preparation of a Bill of Rights "with the aid of the state declarations," as he had suggested in Philadelphia. His principal "aid" was his Virginia Declaration of 1776. Maryland and Pennsylvania contributed a little.

Prior to June, 1788, eight states had ratified the Constitution, but none had proposed a bill of rights. The Richmond Ratifying Convention was under way. Mason and Henry saw Robert Morris in town. They knew what that meant.(13) They were alarmed for the liberties of men.

On June 9, 1788, Mason sent a copy of his proposed federal bill of rights to General John Lamb, of New York, by Colonel Oswald. On June 21, Judge Robert Yates, of New York, acknowledged receipt of Mason's letter and bill of rights, saying:(14)

A copy of Mason's letter to John Lamb has long been catalogued among the Lamb Papers in the New York Historical Society, but prior to 1955 no one had ever found and identified the proposed declaration of rights that Mason sent with the letter to General John Lamb.

Early in 1955 the writer found and identified Mason's proposed bill of rights as Item "48" among the "unclassified and undated" Papers of Gen'l John Lamb in the New York Historical Society Collection. It is a chunk of "forgotten history". Both the letter and the declaration are in the hand of a scrivener. This proposed bill or declaration supplies the missing link in the history of the Federal Bill of Rights and in the history of liberty in the world. It ends all arguments as to the authorship and principal responsibility for the Federal Bill of Rights. The original in Mason's handwriting from which the scrivener made a verbatim copy, now lies unrecognized, unhonored and unsung among the Mason Papers in the Library of Congress. It too is "forgotten history."(14a)

More than two weeks after Mason sent a copy of his proposed bill of rights to New York, an illustrious committee of Virginia gentlemen, including Patrick Henry, James Madison, John Marshall, George Wythe, James Monroe, Mason himself and others, rubber-stamped virtually a verbatim copy of Mason's proposed declaration of rights, in the same twenty paragraphs without rearrangement. On Friday, June 27, the Virginia Ratifying Convention adopted the committee report with a resolution proposing to the First Congress the adoption of that declaration of rights. That committee was not in existence until two weeks after Mason's declaration went to New York.

Copies of Mason's draft mysteriously found their several ways to the North Carolina and the Rhode Island conventions where they were copied also. A comparison of Mason's paragraph 18 with Virginia's 18, North Carolina's 18, Rhode Island's 17 and the corresponding unnumbered paragraph of New York's proposals, reveals that Virginia dropped five words from the Mason original. North Carolina copied the changed version while Rhode Island and New York copied Mason's original, verbatim. They had to have copies of Mason's original before them. Thus the only declarations of rights proposed by any ratifying conventions were almost verbatim copies of that "prepared" by Mason. Four states and the United States rubber-stamped Mason. The Virginia constitutionalist became the American constitutionalist.

The privilege, against self-incrimination was stated in Mason's original draft (now kicked around in the Library of Congress; a copy of this draft was mailed to New York on June 9, 1788) as follows:

Virginia's Convention rephrased the privilege to make it read like this:

(A marked similarity!)

New York did do some rephrasing and came up with this proposal:

(This weakened the privilege.)

North Carolina's convention met and proposed amendments and then adjourned and went home. Her proposal of August 1, 1788, was:

(Notice how North Carolina contributed two commas!)

On May 29, 1790, Rhode Island came up with her proposed declaration of rights. The privilege against self-incrimination was stated in her paragraph 8 as follows:(15)

(Rhode Island shifted a comma and romanized eight. The thing begins to look suspicious!)

On June 8, 1789, James Madison proposed the Bill of Rights in the First Congress to save the political future of James Madison -- not to save the liberties of men. As stated by Madison(16) the proposed privilege against self-incrimination was: "No person . . . shall be compelled to be a witness against himself. . . ."

That clothed the person with the privilege against compulsion wherever he might find himself.

During the debate on the proposed bill of rights in the Committee of the Whole on August 17, 1789, the following occurred:

As pointed out by C. Dickerman Williams,(17) the assertion of Representative Lawrence, of New York, to the effect that a general privilege against self-incrimination was "in some degree contrary to laws passed," is "mystifying and apparently has never been clarified by scholars." Mr. Williams points out that it has been suggested in 49 Columbia Law Review 87-92, that Mr. Lawrence was referring to the Judiciary Act of 1789. That seemed doubtful to Mr. Williams because the Judiciary Act was not approved until September 24, 1789, five weeks after Mr. Lawrence proposed the amendment. Very few laws had been "passed" by the First Congress by August, 1789. The lower House of Congress had not "passed" the Judiciary Act until well after August 17, 1789.

The reports of debates in the First Congress left much to be desired. The reporters summarized instead of making verbatim reports of what was actually said. Laws had been "passed" in many of the states authorizing discovery in equitable cases, and authorizing the enforced production of books and papers, as did the Judiciary Act of September, 1789. But, of course, the laws of states could have no relevancy because the plain language of the proposed Bill of Rights imposed limitations and restraints on the Federal Government -- not the states.

The sole purpose of the Federal Bill of Rights was to seize the heavy hand of federal power and hold it in a death grip. For example, freedom of religion, of speech, of the press and of assembly are preserved from infringement by an absolute command from the people that "Congress shall make no, law respecting . . ." those subjects.(18)

Nevertheless the privilege against self-incrimination was specifically confined to criminal cases. If the privilege had been confined to "prosecutions," as Mason had it, it might be applicable to executive and legislative proceedings. But the words "criminal case" confines the privilege to judicial proceedings. The executive and legislative branches of government may conceivably take part in a "prosecution" but they can take no part in the trial of a "criminal case," and they could take no such part in 1789. It should be observed that Mr. Lawrence, of New York, did substantially the same thing on the floor of Congress in 1789 that was done in the New York Ratifying Convention in 1788. The proposed privilege was restricted to "crimes cognizable by the judiciary."

History explains. Philosophy confuses. John Dickinson put it this way in the Constitutional Convention of 1787: "Experience must be our only guide. Reason may mislead us."

The process of narrowing privilege and confining it to "criminal cases" is old to history. Neither the New York Convention nor the New York Congressman pioneered. The fruitless demands of the Levellers during the Puritan Revolution were narrowed. Most historians overlook the fact that the American Revolution was a revolution of government on constitutional issues, in which the aspirations of the Levellers in the Puritan Revolution of the 1640's became realities. The American Revolution was something entirely different from The British-American War. The war ended at Yorktown. The Revolution did not subside until December 15, 1791, when the Bill of Rights was adopted. Washington directed the war. Mason, more than any other, directed the Revolution.

The principles and doctrines of those who assailed the bastions of power in behalf of human liberty and dignity both in the Puritan and in the American Revolutions were expressed in anonymous pamphlets, newspaper articles and circulars before they became the subjects of petitions and remonstrances for the guided multitudes. Those principles that have weighed most in the history of freedom were not promulgated in bound books.

The pamphlets and petitions of John Lilburne, Richard Overton, William Walwyn, and a few others of the 1600's were among the numerous political and revolutionary writings known to George Mason. Those writings were based on the experience of Englishmen. The Virginia Declaration of Rights and hence the Federal Bill of Rights harken back to the anonymous writings of those men. John Locke and others made a fuzzy philosophy of those writings. George Mason translated many of them into shielded rights. Mason's ancestors were driven from England to America at the very time when the Levellers were losing the last battle to constitute a government establishing liberty under law -- law made by the representatives of the people, which is the only law that can be made in a republican government.

The eighth paragraph of the Levellers' petition to Parliament in September, 1648, was:(19)

(The "8" is purely coincidental).

The privilege against self-incrimination, as then demanded, might have been claimed by a "Digger" (the seventeenth century communist) in a parliamentary investigation as well as in investigations involved in criminal cases. The same sentence proscribed bills of attainder.

In the following December, John Lilburne prepared the Agreement of the People, presented to Parliament in January, 1649. The language of the Agreement has a familiar ring -- because it was familiar to George Mason. It proposed to take from Parliament the power to pass laws touching religion, or "any of the foundations of common right, liberty or safety." It proposed expressly to forbid Parliament to ". . . level men's estates, destroy propriety [sic], or make all things common."(20)

Thereupon the Agreement continues:(21)

Thus old John Lilburne, grandfather of the privilege against self-incrimination, finally confined the requested privilege, which was too urgent to await debate and constitutional status, to "criminal cases" so that the "Representatives" of the people might still be free to discover truth in legislative investigations. New York's Convention and her Congressman Lawrence and the first Congress walked in the footsteps of, "Freeborn John" Lilburne. History repeats itself without regard to the historical knowledge of the actors.

Something happened in America between 1776 and 1789 to change the thinking about the privilege of self-incrimination. It was narrowed down in 1789 exactly as the Levellers' demands for it was in 1649. Why did that happen? The question keeps pressing.

Congressional investigations are not new. The Continental Congress conducted many during the Revolution. Representatives of the people must know and act upon truth. Otherwise republican government must immediately fail and fall.

One of the congressional investigations during the Revolution reads as if torn from the Congressional Record of 1954. In August, 1778, Silas Deane had two audiences with the Continental Congress in Philadelphia at the request of the Congress. In other words the Continental Congress investigated Silas Deane. His loyalty had been questioned. He was one of the commissioners serving with Benjamin Franklin and Arthur Lee in France, seeking to purchase materials and equipment for the use of our continental forces in the American Revolution. Scores of soldiers of fortune showed up in America with "agreements" signed by Deane entitling many of them to outrank American officers. Thomas Conway was one of them. He conspired to displace Washington as commander in chief. Remember the "Conway Cabal"? The Congress and the harassed continental army staffs were amazed and disgusted. Arthur Lee early suspected the disloyalty of Silas Deane and both he and his brother, William Lee, also in Europe, reported certain facts and circumstances pointing to waste and possible subversion by Deane. Deane was called home to make a report of his stewardship and was displaced at his station in Passy, France, by John Adams.

It appeared to some that Silas Deane had surrounded himself with a cell of spies, including the famous spy, Dr. Bancroft, who lived in the same house with Deane and Dr. Franklin, where the brilliant and suspicious Arthur Lee was unwelcome. It was suspected that it was through Bancroft and Deane that the English authorities knew everything that Franklin knew and that Deane knew. England was able to intercept ships bound for America, and her ministers had lists of the cargoes that were found in the holds of those ships. Deane had also entered into a commercial partnership with Robert Morris and was making a nice personal profit out of commercial transactions he was authorized to execute in behalf of the United States.

One fact after another accumulated, but the Continental Congress did nothing from August until December. Deane became nervous and concluded that his best hope was to smear Arthur Lee and his brothers, William Lee, then in Europe, and Richard Henry Lee and Francis Lightfoot Lee then in the Continental Congress. He knew that Arthur Lee had "smelt a rat" in Passy, France. Deane opened up on the Lees and the Continental Congress with diversionary libels, consisting of insinuations and innunendoes and no facts, in the Pennsylvania Packet of December 5, 1778.

Thomas Paine, author of Common Sense and the fire-brand champion of human liberty, knew the Lees well and knew that no more selfless patriots had ever given of their time, their substance and talents to the cause of American independence. He also knew Silas Deane and Robert Morris. When the attack was made by Deane, Richard Henry and Francis Lightfoot Lee had gone to Virginia, but Tom Paine, then acting Secretary of Foreign Affairs, answered Deane, in the Pennsylvania Packet of January 2, 1779. One of the telling blows delivered by Paine was:

Dr. Benjamin Franklin would not at first believe the treachery of Deane and Dr. Bancroft. He was a "liberal" philosopher lost in dreams and believed that his friend could do no wrong. The financial power of Robert Morris, the forensic power of Gouverneur Morris, the prestige of Dr. Franklin and the machinations of American Tories were enough to break the back of Henry Laurens, Tom Paine and the great family of Lees.(22)

Writing from Passy, France, on February 28, 1779, after reading Deane's letter in the previous December 5 Packet, John Adams told Samuel Cooper:

Later Jefferson described Deane as ". . . a wretched monument of the consequences of a departure from right."

On May 15, 1782, George Washington wrote to a friend about Deane: "I have so bad an opinion of . . . [Deane] . . . that I wish to hear or see nothing more of so infamous a character."

John Jay, of New York, one of the contributors to the Federalist and the first Chief Justice of the Supreme Court of the United States, at first refused to believe Deane to be a traitor. He led the fight for Deane in the Continental Congress and displaced Henry Laurens, as President of the Continental Congress in 1779 when Laurens resigned because the Congress would not censure Deane for his letter of December 5, 1778. In 1784 Jay, then Minister to Spain, was in London on his way to America. Deane, hearing of Jay's presence in London, went to see his old friend. Jay refused to see him and explained why, in a brief note to Deane, saying in part:

"Guilty by association" was not distasteful to John Jay or to any other patriots in America then. Neither is it today. No better way was known then or is known now for evaluating the character of any one than to judge him by the company he kept or keeps. "Birds of a feather flock together" (unless deflocked by judicial decree and de-feathered by force).

The soft-shell egg-heads, the left-threaded screwballs, the pseudo-philosophers, the assorted "doctors" of this and that, and those simple-minded people who believed themselves "liberal" and "broad-minded" when loving every other country except their own importuned the Congress of the United States for nearly three quarters of a century after 1778 in behalf of Silas Deane, to "correct the injustice" that had been done to the "innocent," yet "Silent Silas." In 1842, the Congress succumbed to the propaganda and appropriated a large sum of money to the descendants of Deane to salve their wounded feelings and to correct the "injustice" that had been done to him.

About twenty-five years after the money was paid out, the secret letters of George III were published. Those letters confirmed the fact that Silas Deane was a traitor to his country beside whom Benedict Arnold was a wingless angel.

Truth crushed to earth does not always rise again. Some of the encyclopedias and history books still paint Silas Deane as an American patriot who suffered a great injustice. They accept the gesture of Congress as the final verdict. None of those accounts refer to the letters of George III, the last edition of which was published in 1932. After reading a few of those letters, when first published, Charles Francis Adams, the New England historian, asserted in 1874:

But many so-called American "historians" close their eyes to a correction of a cherished fable.

While the Revolution was raging, on March 3, 1781, George III wrote to Lord North requesting him to let Silas Deane have 3000 pounds in goods for America in return for Deane's services in seeking to bring about discord among the confederated states of America and restoring their allegiance to him. "Divide and conquer" was the plan then, as in all ages and Deane was the tool. On July 19, 1781, George III wrote to Lord North expressing fear that Deane was showing his hand and giving "too much appearance of being connected with this country." In another letter George III stated to Lord North that Deane's letters, which were being published in the American newspapers, were "too strong in our favor to bear the appearance of his spontaneous opinions". George III then outlined the kind of letter he thought Deane should write for publication in America.

The only way for Deane apologists to deal with the letters of George III is to ignore them. That is what they do.(23)

Now let us go back to the floor of the First Congress under the new Constitution, on the seventeenth day of August, 1789. Many members of that Congress were members of the Continental Congress before whom Silent Silas appeared in 1778. Richard Henry Lee and Oliver Ellsworth, for example, were in the Senate. Elbridge Gerry was in the House with a copy of George Mason's original draft of the Bill of Rights in his pocket. So were many others who remembered full well the treachery of Silas Deane -- because they felt it. The one who felt it most, perhaps, was George Washington. He could never think of Valley Forge without thinking of Silas Deane.

Is it any wonder that when Congressman Lawrence, of New York, proposed that the privilege against self-incrimination should be limited to criminal cases no one arose to suggest or urge language that would enable another traitor to claim the privilege against self-incrimination at some other congressional investigation in some other age?(24)

It was not until 1695 that the English Parliament extended the privilege to prisoners charged with treason in England. Torture was being used on spies in England as late as 1673. A distinction between the grant of the privilege in such cases and in ordinary crimes was made in Massachusetts as early as 1642.(25)

Neither before nor since 1789 has the English Parliament permitted persons to claim the privilege against self-incrimination in parliamentary inquiries. Parliament recognized then and recognizes now the principle upon which witnesses are excused from incriminating themselves. The rule of Parliament was then and is now that incriminating evidence given in the Parliament may not be used out-of-doors except with the permission of the Parliament, which is never granted.(26)

What has happened to the Fifth Amendment, so deliberately limited by the Founding Fathers to "criminal cases"? A Supreme Court, writing and deciding without restraint or research, has usurped and exercised the power to amend the Constitution by striking the amendment adopted in Congress on August 17, 1789, and approved by the representatives of the people on December 15, 1791. The Court now holds that under the Fifth Amendment, as amended by the Court,

The Supreme Court committed the major aberration in Counselman v. Hitchcock(28) (grand jury investigation under the Interstate Commerce Act), where the Court by way of dictum used the broad language just quoted above from the 1952 annotations of the Constitution and specifically rejected any difference between constitutional provisions that "no person shall be compelled to accuse or furnish evidence against himself," and that "no person shall be compelled in any criminal case to be a witness against himself" (page 562 et seq., and particularly 585). The Court was of the opinion that the substantial differences in language should not bring about any difference in meaning. Next came McCarthy v. Arndstein(29) (hearing in bankruptcy), where the Court broadly held that the privilege was available in civil cases. Then came the further 1955 stretch to cover hearings in congressional investigations. Quinn v. United States, Emspak v. United States, and Bart v. United States.(30) Intermediate cases of interest are McGrain v. Daughertys(31) and Sinclair v. United States.(32)

On January 24, 1857, Congress passed a statute(33) which provided in substance that any person appearing as a witness before a congressional committee should be punished for willful refusal to answer, and, second, that no person testifying before a committee should be held to answer criminally in any court of justice, for any fact or act touching which he gives testimony, and that no statement made or paper produced by any witness before any committee should be competent testimony in any criminal proceeding against such witness, in any court of justice. The act of January 24, 1857, became Revised Statutes, Sections 102 and 859, currently 2 U.S.C. 192 and 18 U.S.C. 3486 (formerly 28 U.S.C. 634; see United States v. Bryan(34)) until revised in 1954 by an enlarged immunity act. The act of January 24, 1857, at least as then framed, would appear to have prevented the use of testimony obtained in a congressional investigation in either the federal or state courts (Brown v. Walker(35), Adams v. Maryland(36)), because an act of Congress is the supreme law of the land binding on both state and federal courts; hence, in the pursuit of an appropriate constitutional objective (wholly aside from the historically correct meaning of the Fifth Amendment) Congress has it in its power to adopt the practice of the English Parliament, namely excusing no witness from giving self-incriminating testimony, but, as a matter of grace, not consenting that the incriminating testimony shall ever be used against the witness in any court, state or federal.(37)

The Lawrence Amendment to the Fifth Amendment translated an old English Privilege of Parliament into an American Privilege of Congress. That "privilege," approved in the manner provided by the Constitution, has been destroyed in a manner forbidden by the Constitution.

13. On June 12, 1788, Robert Morris wrote to Horatio Gates from Richmond, Virginia (the original signed letter is in the New York Public Library), that he was short of funds and commented on "the depredations on my purse" there in Richmond. Biographers of Robert Morris do not attempt to explain the depredations on the purse of the richest man in America while he was in attendance as an interested observer at the Virginia Ratifying Convention. They "play 'possum" on that one.