Cite as: 526 U. S. 314 (1999)
Scalia, J., dissenting
tenetur seipsum prodere, was thought to ban only testimony forced by compulsory oath or physical torture, not voluntary, unsworn testimony. See T. Barlow, The Justice of Peace: A Treatise Containing the Power and Duty of That Magistrate 189-190 (1745).
Pretrial procedure in colonial America was governed (as it had been for centuries in England) by the Marian Committal Statute, which provided:
"[S]uch Justices or Justice [of the peace] before whom any person shall be brought for Manslaughter or Felony, or for suspicion thereof, before he or they shall commit or send such Prisoner to Ward, shall take the examination of such Prisoner, and information of those that bring him, of the fact and circumstance thereof, and the same or as much thereof as shall be material to prove the Felony shall put in writing, within two days after the said examination. . . ." 2 & 3 Philip & Mary, ch. 10 (1555).
The justice of the peace testified at trial as to the content of the defendant's statement; if the defendant refused to speak, this would also have been reported to the jury. Langbein, The Privilege and Common Law Criminal Procedure, in The Privilege Against Self-Incrimination 82, 92 (R. Helmholz et al. eds. 1997).
At trial, defendants were expected to speak directly to the jury. Sir James Stephen described 17th- and 18th-century English trials as follows:
"[T]he prisoner in cases of felony could not be defended by counsel, and had therefore to speak for himself. He was thus unable to say . . . that his mouth was closed. On the contrary his mouth was not only open, but the evidence given against him operated as so much indirect questioning, and if he omitted to answer the questions it suggested he was very likely to be convicted." J. Ste-
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