Publication Date

1990

Publication Title

New York University Law Review

Abstract

Current orthodoxy holds that the fifth amendment's privilege against self-incrimination has its roots in the seventeenth-century triumph of enlightened English common law over the older tradition of continental common law and the English ecclesiastical courts which used this tradition to limit religious freedom. In this Article, Professor Helmholz presents and analyzes documentary evidence demonstrating the inaccuracy of this account. These documents reveal that the continental blend of Roman and canon law known as the ius commune had long recognized the privilege against selfincrimination, and that English ecclesiastical courts first considered arguments for the privilege based on this body of law. Thus, far from being the enemy of the privilege, the continental tradition paved the way for the efforts of the English common lawyers now credited with championing it In reaching this conclusion, Professor Helmholz details the rich texture of various arguments and counter-arguments within the ius commune concerning the application of the privilege in specific cases.

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