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The Privilege against Self-Incrimination

Its Origins and Development

Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.

Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege—the right to remain silent—is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality.

This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law.

320 pages | 6 x 9 | © 1997

Law and Legal Studies: Legal History

Table of Contents

Preface
Abbreviations
1: Introduction
R. H. Helmholz
2: The Privilege and the Ius Commune: The Middle Ages to the Seventeenth Century
R. H. Helmholz
3: Self-Incrimination in Interjurisdictional Law: The Sixteenth and Seventeenth Centuries
Charles M. Gray
4: The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries
John H. Langbein
5: The Privilege in British North America: The Colonial Period to the Fifth Amendment
Eben Moglen
6: The Modern Privilege: Its Nineteenth-Century Origins
Henry E. Smith
7: A Peculiar Privilege in Historical Perspective
Albert W. Alschuler
Notes
Table of Statutes
Index

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