84 HARVARD LAW REVIEW. now stands for. Prodere was used in the sense of " to disclose for the first time," " to reveal what was before unknown." The whole maxim, far from establishing a privilege of refusing to answer, expressly declares that answers must be given, under certain conditions (which are always fulfilled at trials in our courts of justice). It is certainly a satisfaction to learn that, after all, no such maxim as " no one ought to be obliged to say whether he is guilty," was ever formulated by the European jurists. We have in later years accepted it, with its Latin dress, as a supposed bequest from earlier thought, but our present rule never possessed any such sanction. It must stand, if at all, upon its merits alone. So far as I have been able to discover, the first person to use the four words nemo, etc., apart from their context was Coke himself, in the case of Collier v. Collier. Coke's integrity hardly appears to advantage in the history of this controversy. He gave forth an erroneous interpretation of Otho's statement, which a sincere man can hardly be imagined as making; he misquoted Hinde's Case to his own advantage, where no opportunity for error seems to offer itself; and now he is found employing in his argument a partial and misleading statement of this rule of ecclesiastical practice. However this may be, it is certain, on the one hand, that the maxim as it is in use to-day was, in its origin, the broken half of a rule of quite the contrary import; and, on the other, that its currency was gained and its present sense acquired in the course of the controversy of the seventeenth century. This maxim, or rather the abuse of it in the ecclesiastical courts, helps in part to explain the shape which the general privi- lege now has taken. The exact circumstances of the transition are somewhat obscure, perhaps necessarily so. But we notice that most of the church's religious investigations, the cause of all the trouble, were conducted by means of commissions or imquisitions, not by ordinary trials upon proper presentment; and thus the very rule of the canon law itself was continually broken, and persons unsuspected and unbetrayed "per famam" were com- pelled, " seipsum prodere" to become their own accusers. This, for a time, was the burden of the complaint. In 1589, for example, we read, in a protest by "divers of these persons required to make answer upon their oaths," that "they are not bound to accuse themselves; that in accusing others they should violate
