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Origins of the Fifth Amendment: The Right Against Self-Incrimination
Winner of the Pulitzer Prize in history and a landmark in the study of constitutional origins, Leonard Levy's now-classic study appears for the first time in paperback. Origins probes the intentions of the framers of the Fifth Amendment and emphasizes their belief that in a society based upon respect for the individual, it is more important that the accused not unwillingly contribute to his conviction than that the guilty be punished. "A work of monumental scholarship―broad in scope, thorough, carefully annotated, accurate, and imaginative."― Political Science Quarterly . "Vastly learned...everywhere critical and reflective...written in a style at once lucid and vigorous. All in all, it is quite clearly one of the important contributions to historical literature."―Henry Steele Commager. "A matchless contribution to our understanding of the historical background underlying the adoption of a major provision of the Bill of Rights."― American Political Science Review . "A masterful job."―Oscar Handlin.
576 pages, Paperback
First published January 1, 1971
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About the author
Leonard W. Levy
56 books7 followersLeonard Williams Levy was the Andrew W. Mellon All-Claremont Professor of Humanities and Chairman of the Graduate Faculty of History at Claremont Graduate School, California. He was educated at Columbia University, where his mentor for the Ph.D. degree was Henry Steele Commager.
Levy's most honored book was his 1968 study Origins of the Fifth Amendment, focusing on the history of the privilege against self-incrimination. This book was awarded the 1969 Pulitzer Prize for History. He wrote almost forty other books.
In 1990, Levy was appointed a Distinguished Scholar in Residence; Adjunct Professor of History and Political Science at Southern Oregon State College in Ashland, Oregon.
Levy's most honored book was his 1968 study Origins of the Fifth Amendment, focusing on the history of the privilege against self-incrimination. This book was awarded the 1969 Pulitzer Prize for History. He wrote almost forty other books.
In 1990, Levy was appointed a Distinguished Scholar in Residence; Adjunct Professor of History and Political Science at Southern Oregon State College in Ashland, Oregon.
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Displaying 1 - 4 of 4 reviews
December 5, 2014
I read this in its original 1969 hardcover (remaindered by a public library) and I am glad it's still available. Mr. Levy's book covers the period from Magna Carta to the drafting of the U.S. Constitution, and reveals that all the criminal rights, which we take too much for granted, didn't spring full-grown from the Founding Fathers' heads but evolved through 500 years of common law. (The Founding Fathers did capture it in written, not just traditional common law, however). The right against self-incrimination, the right not to be compelled to testify against yourself, the right to be informed of the nature and cause of accusations against you, the rule of law over government itself -- all developed long before our Revolution and were well-rooted in England by the 16th Century.
Mr. Levy tells a vivid story, peopled with mighty figures like John Lilburne, the Puritan who faced down the Court of Star Chamber, and Sir Edward Coke, a jurist of that time who could declare to an arbitrary king that "Magna Charta is such a fellow that he will have no sovereign."
Mr. Levy also gives us a sense of how unique the Anglo-American common law -- the evolution of law built on cases, not just statutes -- is compared to its Roman and Napoleonic counterparts on the European continent. I read this before beginning law school and this book was considerably helpful in Crim. Law and Crim. Procedure, where the Fourth, Fifth and Sixth Amendments suffuse police and criminal process in the U.S.
Ordinary people, not just lawyers, will find this book timely given the current trend to shrug off this longstanding heritage in the name of temporary wartime security. It's good to read of the deep roots of our law, and of its barrier between the individual and arbitrary official power.
Mr. Levy tells a vivid story, peopled with mighty figures like John Lilburne, the Puritan who faced down the Court of Star Chamber, and Sir Edward Coke, a jurist of that time who could declare to an arbitrary king that "Magna Charta is such a fellow that he will have no sovereign."
Mr. Levy also gives us a sense of how unique the Anglo-American common law -- the evolution of law built on cases, not just statutes -- is compared to its Roman and Napoleonic counterparts on the European continent. I read this before beginning law school and this book was considerably helpful in Crim. Law and Crim. Procedure, where the Fourth, Fifth and Sixth Amendments suffuse police and criminal process in the U.S.
Ordinary people, not just lawyers, will find this book timely given the current trend to shrug off this longstanding heritage in the name of temporary wartime security. It's good to read of the deep roots of our law, and of its barrier between the individual and arbitrary official power.
September 6, 2010
The Fifth Amendment is one of the central parts of the Bill of Rights. It reads: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Thus, the need for an indictment, no double jeopardy, no testifying against oneself, and the importance of due process. Hardly seems controversial, does it? Yet these protections often ignite political controversy.
This book takes a look at the background for the Fifth Amendment to the United States Constitution. The picture begins in England centuries ago, when people were sometimes tortured to give evidence against themselves. Levy does a superb job of tracing the concerns that eventuated in the Fifth Amendment. This includes an analysis of legal doctrine as it developed in the colonies before the Revolutionary War. It is not a simple tale; there are gaps in the record.
Nonetheless, this book is a terrific resource in getting a sense of the origins of the Fifth Amendment as well as its importance in the legal fabric of the United States.
Thus, the need for an indictment, no double jeopardy, no testifying against oneself, and the importance of due process. Hardly seems controversial, does it? Yet these protections often ignite political controversy.
This book takes a look at the background for the Fifth Amendment to the United States Constitution. The picture begins in England centuries ago, when people were sometimes tortured to give evidence against themselves. Levy does a superb job of tracing the concerns that eventuated in the Fifth Amendment. This includes an analysis of legal doctrine as it developed in the colonies before the Revolutionary War. It is not a simple tale; there are gaps in the record.
Nonetheless, this book is a terrific resource in getting a sense of the origins of the Fifth Amendment as well as its importance in the legal fabric of the United States.
October 13, 2015
It is easy to forget the the fifth amendment of the U.S. constitution also contains a clause mandating grand juries, and one prohibiting "double jeopardy," and one prohibiting taking private property without just compensation, and the catch-all due process clause. Yet if you ask anyone what the amendment does, they know one thing, "Taking the Fifth." The bane of prosecutors and congressional committees alike, the fifth amendment right against self incrimination has long been a bulwark of civil liberties. In this book Leonard Levy demonstrates why the right had such an outsized influence on constitutional development in England and America.
In most common law trials in early England, such a right made little sense, because a criminal defendant had to argue his own case and was refused counsel and was not even allowed to take an oath, so he could no more refuse to describe his version of events than he could refuse to defend himself. The right became important, however, in ecclesiastical trials, where, beginning with Pope Innocent III in 1215, the church began conducting inquisitions into heresy through its ministers. These church courts acted as prosecutor, judge, and jury, and their chiefs would often demand witnesses and defendants give an oath "ex officio," or a general promise to tell the truth in all matters, even before knowing what they were being interrogated about. By using much legal and religious sophistry, these courts succeeded in tripping many oblivious civilians and churchman in their own confusion, and convicting them of crimes they did not even know they were accused of.
In England, the Parliament and common law courts tried to limit the inquisitorial procedure and the jurisdiction of ecclesiastical courts generally, but their use both exploded at the time of the Reformation. With Henry VIII's union of church and state, his royal courts began investigating heresy as a type of treason, requiring "ex officio" oaths, and this procedure was carried further during "Bloody Mary's" time against Protestants, and then again in Elizabeth's time against Catholics and obstreperous Puritans. The Puritans, however, especially objected to being asked to "foreswear" their consciences. Lawyers like Nicholas Fuller and Lord Coke helped dream up a sort-of mythical version of the Magna Carta, which forbid requiring personal oaths and interrogations into events even by royal and ecclesiastical courts, and even after a case had gone to trial. Their work payed off when Parliament ended the Court of the Star Chamber and the Court of the High Commission in 1640, the most consistent abusers of the oath. These Puritan ideas became so entrenched that they helped the radical John Lilburne beat back the Puritans' own attempts to convict him through extracted oaths after they they had won power in the English Civil War. Finally their ideas about Magna Carta and English rights against self-incrimination made it across the Atlantic and became sacrosanct during American opposition to the English admiralty courts, which employed similar procedures.
There's therefore a great history and story in this book, but it's almost impossible to ferret it out amidst the avalanche of extraneous facts and cases. I have no idea why the John Udall, Henry Barrow, John Whittington, or dozens of other religious cases have to be described in excruciating detail, and Levy doesn't seem to offer any clue. Every Parliamentary debate, every Privy Council memo, every secondary case, every stray pamphlet is blended in an impossible mix, and the gradual evolution of the ideas can only be gleaned from deep inside weighty paragraphs. Why this book won the Pulitzer back in 1968 is a mystery to me, except that the committee must have liked the message in the post-McCarthy era. In any case, those looking for a modern take on this old liberty should try and look elsewhere.
In most common law trials in early England, such a right made little sense, because a criminal defendant had to argue his own case and was refused counsel and was not even allowed to take an oath, so he could no more refuse to describe his version of events than he could refuse to defend himself. The right became important, however, in ecclesiastical trials, where, beginning with Pope Innocent III in 1215, the church began conducting inquisitions into heresy through its ministers. These church courts acted as prosecutor, judge, and jury, and their chiefs would often demand witnesses and defendants give an oath "ex officio," or a general promise to tell the truth in all matters, even before knowing what they were being interrogated about. By using much legal and religious sophistry, these courts succeeded in tripping many oblivious civilians and churchman in their own confusion, and convicting them of crimes they did not even know they were accused of.
In England, the Parliament and common law courts tried to limit the inquisitorial procedure and the jurisdiction of ecclesiastical courts generally, but their use both exploded at the time of the Reformation. With Henry VIII's union of church and state, his royal courts began investigating heresy as a type of treason, requiring "ex officio" oaths, and this procedure was carried further during "Bloody Mary's" time against Protestants, and then again in Elizabeth's time against Catholics and obstreperous Puritans. The Puritans, however, especially objected to being asked to "foreswear" their consciences. Lawyers like Nicholas Fuller and Lord Coke helped dream up a sort-of mythical version of the Magna Carta, which forbid requiring personal oaths and interrogations into events even by royal and ecclesiastical courts, and even after a case had gone to trial. Their work payed off when Parliament ended the Court of the Star Chamber and the Court of the High Commission in 1640, the most consistent abusers of the oath. These Puritan ideas became so entrenched that they helped the radical John Lilburne beat back the Puritans' own attempts to convict him through extracted oaths after they they had won power in the English Civil War. Finally their ideas about Magna Carta and English rights against self-incrimination made it across the Atlantic and became sacrosanct during American opposition to the English admiralty courts, which employed similar procedures.
There's therefore a great history and story in this book, but it's almost impossible to ferret it out amidst the avalanche of extraneous facts and cases. I have no idea why the John Udall, Henry Barrow, John Whittington, or dozens of other religious cases have to be described in excruciating detail, and Levy doesn't seem to offer any clue. Every Parliamentary debate, every Privy Council memo, every secondary case, every stray pamphlet is blended in an impossible mix, and the gradual evolution of the ideas can only be gleaned from deep inside weighty paragraphs. Why this book won the Pulitzer back in 1968 is a mystery to me, except that the committee must have liked the message in the post-McCarthy era. In any case, those looking for a modern take on this old liberty should try and look elsewhere.
February 21, 2016
While the book was a very interesting history lesson worth knowing I found it a difficult read due to the author's use of old english in describing 15-18 century law.
Displaying 1 - 4 of 4 reviews