Amendments V and VI

Document 31

Respublica v. Gibbs

Besides, it has been objected, that the questions propounded to the electors, contravene an established principle of law. The maxim is, neme tenetur seipsum accusare, (seu prodere.) It is founded on the best policy, and runs throughout our whole system of jurisprudence. It is the uniform practice of courts of justice as to witnesses and jurors. It is considered cruel and unjust to propose questions which may tend to criminate the party. And so jealous have the legislature of this commonwealth been, of this mode of discovery of facts, that they refused their assent to a bill brought in, to compel persons to disclose on oath, papers as well as facts, relating to questions of mere property. And may we not justly suppose, that they would not be less jealous of securing our citizens against this mode of self accusation. The words accusare or prodere are general terms, and their sense is not confined to cases, where the answers to the questions proposed would induce to the punishment of the party; if they would involve him in shame or reproach, he is under no obligation to answer them. The avowed object of putting them, is to shew, that the party is under a legal disability to elect or be elected; and they might create an incapacity to take either by purchase or descent, to be a witness or juror, &c. We are all clear on this point, that the inspectors were not justified in proposing the questions objected to, though it is probable they did not wrong intentionally. Nevertheless, if by exacting an illegal oath, the election was obstructed or interrupted, it seems most reasonable to attribute it to them.

The Founders' Constitution
Volume 5, Amendments V and VI, Document 31
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs31.html
The University of Chicago Press