October 4, 2022

Origin of legal maxim Nemo tenetur sciepsum tenetur- No one can incriminate himself

Latin Maxim ‘nemo tenetur sciepsum tenetur’ literally translated means, a man cannot represent himself as guilty. This rule prevailed in the Rabbinic courts and found a place in the Talmud (no one can incriminate himself). Later came the Star Chamber history and Anglo-American revulsion.

Imperial Britain transplanted part of it into India in the Cr. P.C. Our Constitution was inspired by the high-minded inhibition against self-incrimination from Anglo-American sources.

The maxim nemo tenetur sceipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which (have) long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, (were) not uncommon even in England.

While the admissions or confessions of the prisoner when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painful evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan Minister, made the system so odious as to give rise to a demand for its total abolition.

The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand.

But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.