Selected Works of
R. Carter Pittman
Originally published as 42 ABA J. 509 (June 1956).
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Yesterday, Today, and Tomorrow
By R. Carter Pittman
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:
This sympathetic attitude toward the clause should not lead us to intrude our ideas of propriety into the conduct of congressional hearings. The rule laid down by the Court today merely adds another means for interference and delay in investigations and trials, without adding to the protection of the constitutional right of freedom from self-incrimination.
"Interference"? "Effrontery" is a better word!
Our forefathers, when they wrote this provision [meaning the privilege against self-incrimination] into the 5th Amendment of the Constitution, had in mind a lot of history which has been largely forgotten today.
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)
This privilege against self-incrimination came up through our colonial history as a privilege against physical compulsion and against the moral compulsion that an oath to a revengeful God commands of a pious soul. It was insisted upon as a defensive weapon of society and society's patriots against laws and proceedings that did not have the sanction of public opinion. In all the cases that have made the formative history of this privilege and have lent to it its color, all that the accused asked for was a fair trial before a fair and impartial jury of his peers, to whom he should not be forced by the state or sovereignty to confess his guilt of the fact charged. Once before a jury, the person accused needed not to concern himself with the inferences that the jury might draw from his silence, as the jurors themselves were only too eager to render verdicts of not guilty in the cases alluded to.
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:
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation . . . nor can he be compelled to give evidence against himself. . . .
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)
different from the usual mode, it being regular that an examining court on criminals be held, either in the county where the fact was committed, or the arrest made.
The resolution then proceeded:
The duty we owe our constituents obliges us to be as attentive to the safety of the innocent as we are desirous of punishing the guilty; and we apprehend that a doubtful construction and various execution of criminal law does greatly endanger the safety of innocent men.
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:
A Declaration of Rights made by the Representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to us and our posterity, as the basis and foundation of government.
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:
The following declaration was reported to the Convention by the committee appointed to prepare the same, and referred to the consideration of a committee of the whole convention; and in the meantime, is ordered to be printed for the perusal of the members.
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:
That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council . . . nor can he be compelled to give evidence against himself . . . .
Maryland came next and put it this way in paragraph 20:
That no man ought to be compelled to give evidence against himself, in a court of common law, or in any other court, but in such cases as have been usually practiced in this state, or may hereafter be directed by the legislature.
Delaware followed, stating the privilege in paragraph 15 of her Bill of Rights like this:
That no man in the courts of common law ought to be compelled to give evidence against himself.
North Carolina came next in December, 1776. In Section 11 it was stated:
That in all criminal prosecutions every man hath a right to be informed of the accusation against him, . . . and shall not be compelled to give evidence against himself.
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:
That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council . . . nor can he be compelled to give evidence against himself. . . .
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:
COL. MASON perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down, on this and some other points, would be sufficient. He wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose. It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.
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:
Col. Mason left Philada. in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.
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)
Your letter of the 9th inst. directed to John Lamb, Esquire at New York, Chairman of the federal Republican Committee in that City enclosing your proposed Amendments to the new Constitution, has been by him transmitted to such of the Members of Our Convention, who are in sentiment with him. In consequence of this Communication a Committee has been appointed by the members in Opposition to the New System (of which they have appointed me their Chairman) with a special view to continue our correspondence on this necessary and important Subject.
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:
8. That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation . . . nor can he be compelled to give evidence against himself . . . .
Virginia's Convention rephrased the privilege to make it read like this:
8. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation . . . nor can he be compelled to give evidence against himself. . . .
(A marked similarity!)
New York did do some rephrasing and came up with this proposal:
That . . . [in] . . . the trial of all crimes cognizable by the judiciary of the United States . . . [etc.] . . . and, that in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation . . . and should not be compelled to give evidence against himself.
(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:
8. That, in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation . . . nor can he be compelled to give evidence against himself . . . .
(Notice how North Carolina contributed two commas!)
VIII. That, in all capital and criminal prosecutions a man hath a right to demand the cause and nature of his accusation . . . nor can he be compelled to give evidence against himself . . . .
(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.
Mr. Lawrence said this clause (meaning the one containing the privilege against self-incrimination) contained a general declaration, in some degree contrary to laws passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee, who then proceeded to the sixth clause . . . .
Mr. Lawrence made it doubly clear that the purpose of his amendment was to confine the privilege against self-incrimination to "criminal cases." The amendment, thus confining the privilege to "criminal cases" was "unanimously agreed to by the committee", Is there any question about that? If so, what is it? What words could he have used more suitable to his purpose?
The amendment, as agreed to by the House of Representatives, went to the Senate with the privilege against self-incrimination couched in paragraph 8 as follows (Paragraph "8" is becoming ridiculous): "No person . . . shall be compelled in any criminal case to be a witness against himself."
The Senate made substantial changes in many of the House proposals but made no change in the privilege and on September 24, 1789, it was adopted for proposal by the President to the states. Virginia became the eleventh state to ratify, resulting in adoption, on December 15, 1791, and Mason's restless mind was partially composed a few short months before he was buried at Gunston Hall. "With two or three further Amendments . . . I could cheerfully put my Hand and Heart to the New Government," were his last words about it.
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.
8. That you would have freed all men from being examined against themselves, and from being questioned or punished for doing that against which no law hath been provided.
(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)
These things were offered to be inserted in the Agreement, but adjudged fit, as the most imminent grievances, to be redressed by the next Representatives:
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:
When Mr. Deane had his two audiences with Congress in August last, he objected, or his friends for him, against his answering to questions that might be asked him, and the ground upon which the objection was made, was, because a man could not legally be compelled to answer questions that might tend to criminate himself -- yet this is the same Mr. Deane whose address you saw in the Pennsylvania Packet of Dec. 5, signed Silas Deane.
Two of those who rushed into the fray to defend "Silent Silas" were Robert Morris and M. Clarkson. Clarkson was aide-de-camp to General Benedict Arnold, who later became the model and celebrated American traitor and the bosom friend of Deane in London.
The Journals of the Continental Congress reveal nothing except the dry bones of the mighty controversy, known as the "Deane Affair." The meat, muscle and blood is in newspaper accounts. It raged in the papers and was known all over America when it was happening during the Revolution, and thereafter. Immediate effects therefrom were the resignation of Henry Laurens as President of the Continental Congress and the dismissal of Tom Paine as Secretary of Foreign Affairs.
Gouverneur Morris, a powerful member of the Congress from New York, and general counsel for Robert Morris, was in the middle of the wrangle on the side of Deane and Robert Morris. In the spring of 1781, it became known that Gouverneur Morris was about to leave Philadelphia with a pass from the Continental Congress and, strange to say, a pass from the British military forces, entitling him to go into New York for the stated purpose of seeing his mother. "A Citizen" writing in the Freeman's Journal of June 6, 1781, questioned the propriety of such a trip by a member of Congress, particularly Morris, and directed several queries "to the people of New York". The first and second queries were as follows:
1st Whether any and which of their Delegates did urge in Congress, that Mr. Deane should give a verbal narrative of his transactions in Europe, instead of a written one, notwithstanding it was represented in opposition thereto that a verbal narrative, in case he was guilty of the abuses he was suspected of, would leave him at liberty to say and unsay to explain away and evade matters, just as it might best suit the purpose of eluding public justice?
Those queries stung Gouverneur Morris and kept him on the American side of the battle line. They also brought forth from him a reply in the June 14, 1781, issue of Freeman's Journal in part as follows:
To the first and second queries of the Citizen I make this reply. I urged and voted that Mr. Deane should be examined viva voce, and not be permitted to send deliberate written answers from his closet, to written questions proposed by the House; and when he prayed that he might not be bound to answer questions tending to accuse himself, I voted for granting his request. If it were to be done over I would do the same thing even if I believed him to be a villain, which I certainly did not.
Silas Deane was allowed to go back to Europe in 1779 for the asserted purpose of collecting documentary proofs of his innocence. Once there he could never find it convenient to come back home. While in Europe certain of his private letters were intercepted and published that left little doubt to patriots of that day that Deane was playing the part of a loyal subject to his king and a traitor to his country. Old Tom Paine took his revenge in Freeman's Journal of March 13, 1782.
On March 20, 1782, the Freeman's Journal published "A Modern Glossary for use of strangers in the capitol of Pennsylvania." That Glossary might be useful to a stranger in the capital of the United States today; we therefore quote a portion:
Deane, Arnold:--Unfortunate men with good intentions, drove to despair by American ingratitude.
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:
The complaint against the family of Lees is a very extraordinary thing indeed. I am no idolater of that family or any other; but I believe their greatest fault is having more men of merit in it than any other family; and if that family fails the American cause or grows unpopular among their fellow citizens, I know not what family or what person will stand the test.
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:
I was told by more than one, on whose information I thought I could rely, that you received visits from, and was on terms of familiarity with, General Arnold. Every American who gives his hand to that man, in my opinion, pollutes it.
"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:
It appears certain that Deane was more or less in the pay of the government [meaning England] during the war.
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.
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.
In May, 1935, the VIRGINIA LAW REVIEW
(Vol. 21, page 763) published
The Colonial and
Constitutional History of the Privilege Against Self-incrimination in America, by the writer.
During the twenty intervening years, that article has been used and cited and misused and not
cited many times.
12. Adams recorded in his diary that the Virginia Declaration of Rights was published in the newspapers while he, Jefferson and Franklin were a committee trying to write the Declaration of Independence in Philadelphia. He failed to admit or deny that they used the first three paragraphs to make a preamble for their Declaration. Jefferson carefully and repeatedly declined to deny it. All he would ever say was that "I turned to neither book nor pamphlet while writing it." That was true -- so Locke, Otis and Paine were excluded. But what about newspapers and circulars? Adams knew exactly what he was talking about as he made the forgotten entry in his diary.
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.
14. ALS New York Public Library. NOTE: Rowland lamented the loss of this letter to history. 2 Rowland, LIFE OF GEORGE MASON 280. If she had found and recognized Mason's draft of a Declaration of Rights and this letter Gunston Hall wouldn't be a sight unseen by so many today and George Mason would not be so well unknown.
14a. The first draft of the Declaration of Independence is well guarded. No one may touch it. The Declaration served a noble and temporary purpose but never became living law in America. It was designed to bring France into the war and to memorialize an event. The first draft of our Bill of Rights, which became living law, is unguarded. It may be fondled by patriots or niched by thieves.
18. The peculiar language of the First Amendment was copied from paragraph 11 of the amendments proposed by the New Hampshire Ratifying Convention on June 21, 1788, which was: "Congress shall make no law touching religion, or to infringe the rights of conscience."
20. Woodhouse, supra, 363. This proposal, persistently urged, accounts for the name "Levellers," applied by the "liberal" advocates of power for the purpose of making Lilburne and his associates odious. See THE LEVELLERS by Thomas Brewster (1659), in COMPLAINT AND REFORM IN ENGLAND (1938) 679. See also page 640. Mason was familiar with these writings -- so was John Locke, but Locke lacked the ability to work their truths into a system of government. See his pathetic effort in THE FUNDAMENTAL CONSTITUTIONS AND CAROLINA 1669. 5 Thorpe, CONSTITUTIONS AND CHARTERS 2772. Mason went to original sources. There is no evidence that Mason read Locke. Mason's writings identify many political writers, but never Locke.
23. See, Hendrick, THE LEES OF VIRGINIA, pages 314, 315. The dated quotations from the Writings of John Adams and George Washington may be found in their published writings. The undated quotations from Jefferson and John Jay were taken from Hendrick, THE LEES OF VIRGINIA, Chapters 11 and 12. The letters of George III are from the same source. The quotations from newspapers are extracts from microfilms of such newspapers owned by the Library of the University of Georgia, which now has the best collection of microfilms of eighteenth century newspapers in America.
24. The Sixth Amendment guarantees that In all criminal prosecutions the accused shall enjoy a speedy and public trial, by an impartial jury." To entitle one to a jury trial it must be in a "criminal prosecution." To entitle one to the privilege against self-incrimination it must be in a "criminal case". If "criminal prosecution" is as broad in meaning as "criminal case," as everyone must concede, then how may the privilege against self-incrimination be validly claimed except in criminal cases triable before juries?
After the foregoing was written, the Immunity Act of 1954 was sustained by the United States
Supreme Court, seven to two, on March 26, 1956, in the
the majority adhering to
Brown v. Walker, supra, the minority building on the historically incorrect views of the
minority in Brown v. Walker. Of course, there can be no question of the correctness of the
majority decision, even though predicated on the erroneous historical background of Counselman
v. Hitchcock. Under the correct historical view, the Fifth Amendment never did apply to
congressional hearings; and so there could be no serious constitutional question concerning the
power of Congress under the "necessary and proper" clause, as a matter of grace, to adopt the
English practice of granting immunity whenever Congress is pursuing an appropriate
In my article in the ABA Journal of June 1956 entitled The Fifth Amendment: Yesterday, Today and Tomorrow, I undertook to give an explanation as to why the First Congress of the United States broke new ground and confined the privilege against self-incrimination to "criminal cases" by the Lawrence Amendment adopted on August 17, 1789. On page 589 I quoted from the Annals of Congress, Vol. 1, pp. 451-452, which is part of the proceedings of August 17, 1789, as follows:
Mr. Lawrence said this clause contained a general declaration, in some degree contrary to law passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee, who then proceeded to the sixth clause . . .
In the next column I stated:
The reports of debates in the First Congress left much to be desired.
One of the details that I would have used in my article had I known about it would have expanded and documented that statement. Recently I ran across it in the Virginia Gazette & Weekly Advertiser (Richmond) of October 15, 1789:
From the New York Journal of Thursday last.
You will observe that this item appeared in the New York Journal approximately six weeks after these reporters garbled the debate on the Bill of Rights. The resolution speaks for itself. Perhaps it may be better understood if we know that Thomas Lloyd was the same reporter who preserved, edited and polished the speeches of Wilson and others favoring the Constitution in the Pennsylvania Ratifying Convention and who, after promising to report the better speeches of the opposition, was bribed to burn his notes. He was the same Thomas Lloyd employed to report the Maryland Ratifying Convention Debates and who "made away" with the notes containing the speeches of those who opposed ratification in Maryland. It was these examples that caused George Mason to oppose the employment of a reporter in the Virginia Convention and that accounts for Van Doren's naive statement in the Great Rehersal, that George Mason "suffered from the printed page" in the reports of the Virginia Ratifying Convention.
It is significant also that the debate on the Bill of Rights in the First Congress occurred in New York where treason and toryism in the Revolution had left its greatest legacy of hate. Long after the end of the Revolution bitterness engendered by disloyalties and suspected disloyalties, augmented by the British occupation of New York for so long during the Revolution was evidence in the political life of the city and of the state. A suspect who claimed the privilege against self-incrimination would hardly be expected to receive courteous treatment at that time in New York.
While there may still be some question as to exactly what Congressman Lawrence may have said with regard to reasons for confining the Fifth Amendment to criminal cases in courts of law, there can be no question as to the meaning of the amendment itself because there it is in the Fifth Amendment "confined to criminal cases" exactly like the reporter recorded it on August 17, 1789. It should not be necessary for me to call your attention to the fact that Article III of the Constitution vests no judicial power whatsoever on the government of the United States. Article III vests the judicial power of the United States in "courts". A "criminal case" could only arise then and can only arise now in a "court". Certainly a congressional investigation is not a criminal case.
On page 591 of my article I quote Tom Paines's reference to Silas Deane who claimed as a matter of grace -- not of right -- the privilege against self-incrimination before the Continental Congress in 1778, who was granted that privilege on the insistence of Gouverneur Morris, as well as John Jay. Great enmity between Tom Paine and Gouverneur Morris grew out of the "Deane Affair". A fact that I did not know when I wrote my article, is embodied in a letter by Tom Paine which appears in The National Intelligencer of December 2, 1802. The significant paragraph is as follows:
I despise expedients, they are the gutter-hole of politics, and the sink where reputation dies. In the present case, as in every other, I cannot be accused of using any; and I have no doubt but thousands will hereafter be ready to say, as Gouverneur Morris said to me, after having abused me pretty handsomely in Congress for the opposition I gave the fraudulent demand of Silas Deane of two thousand pounds sterling: "Well, we were all duped, and I among the rest!"
This letter is reprinted in the Life and Works of Thomas Paine (1925) Vol. 10, p. 128. (Recently acquired by me).
On page 592 of my article I quote from a letter from John Jay to Silas Deane and cited a secondary source. Since writing the article I acquired The Correspondence and Public Papers of John Jay (1891). That letter from Jay to Deane contained materials of greater significance than that indicated in my Article. It may be found in Volume 3, page 114.