Origins of the Fifth Amendment: The Right Against Self-Incrimination [Paperback]

Leonard W. Levy (Author)

Book Description

ISBN-10: 1566632706 | ISBN-13: 978-1566632706 | Publication Date: August 24, 1999 | Edition: 1

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.

Editorial Reviews

Review

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 work of meticulous scholarship which makes the experience of centuries past relevant to the legal process of today. (Paul A. Freund )

Vastly learned...everywhere critical and reflective...written with a style at once lucid and vigorous. (Henry Steele Commager )

A work of monumental scholarshipóbroad in scope, thorough, carefully annotated, accurate, and imaginative. (Political Science Quarterly )

A masterful job. (Oscar Handlin )

About the Author

Leonard W. Levy is formerly Earl Warren Professor of Constitutional History at Brandeis University and Andrew W. Mellon All-Claremont Professor of Humanities and History at the Claremont Graduate School. His other writings, many of which have also won awards, include The Palladium of Justice, Blasphemy, The Establishment Clause, Freedom of the Press from Zenger to Jefferson, Original Intent and the Framers' Constitution, and Jefferson and Civil Liberties. He lives in Ashland, Oregon.

Product Details

• Paperback: 576 pages
• Publisher: Ivan R Dee; 1 edition (August 24, 1999)
• Language: English
• ISBN-10: 1566632706
• ISBN-13: 978-1566632706
• Product Dimensions: 8.7 x 5.8 x 1.3 inches
• Shipping Weight: 1.7 pounds (View shipping rates and policies)
• Average Customer Review: 4.4 out of 5 stars  See all reviews (5 customer reviews)
• Amazon Best Sellers Rank: #1,002,287 in Books (See Top 100 in Books)

Customer Reviews

Most Helpful Customer Reviews

7 of 7 people found the following review helpful:

5.0 out of 5 stars A Good Historical Account and a Warning, November 6, 2007

By 

James E. Egolf "James E. Egolf, MA" (Florida) - See all my reviews
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This review is from: Origins of the Fifth Amendment: The Right Against Self-Incrimination (Paperback)

Leonard Levy' book title THE ORIGINS OF THE FIFTH AMENDMENT is a valuable study of the Fifth Amendment to the U.S. Constutition. As one reviewer noted the rights which are included in the Fifth Amendment have a long history which gradually became law and an important part of due process. In fact, readers should note that due process are part of the Fifth Amendment.

Levy gives readers a solid, well written background of the Fifth Amendment. His treatment of a 500 year plus history of the Fifth Amendment gives a clear understanding that the Fifth Amendment did not suddenly appear in the U.S Bill of Rights, and the "Founding Fathers" were well aware of this. The Fifth Amendment protection against double jeopardy was included as the "Founding Fathers" knew that British monarchs would continue to have dissenters repeatedly tried after an aquittal until a guilty verdict was rendered.

Another important right established by the Fifth Amendment is the protection against self incrimination. The English jurists of the Court of the Star Chamber used the concepts of "ex officio" and "ex confessio" in hearings. A witness was supposedly to summoned the Court of the Star Chamber and had to answer questions based on the office of the court and jurists. If a witness refused to answer questions, this was taken as confession or a "yes answer." Witnessed did not know the nature of the case and were not informed of charges. They unknowingly incriminated friends, family members, or themselves. Some courageous defendents challenged the process. One of those who vigorously challenged self incrimination was William Penn who proved to be a tough witness.

While included in Fifth Amendment, Habeas Corpus is implied. Habeas Corpus means to have the body (the person of the defendent) in court. During court hearings when defendants are charged with crimes, Habeus Corpus procedures specifically inform criminal defendants what the charges are which gives them a basis of preparing a legal defense aginst these charges. This is why no self incrimination is important. A defendant who does not what the criminal charges are could jeopardize his legal defense by comments that could be used against such a defendant.

Readers should know that Habeas Corpus was included in The Petition of Right which King Charles I agreed to in 1628. However, this protection did not apply to areas outside of England. Dissenters could not be held in jail upon a hearing without being charged with specific crimes. To circumvent Charles I and later Oliver Cromwell incarcerated dissents in Islands off the coast of Scotland which were not part of England. Levy informs readers that this abuse was overcome with the Habeas Corpus Act of 1679 which King Charles acknowleged. The Habeas Corpus Act of 1679 stated that the protection of Habeas Corpus applied anywhere the English (later the British) had control. Since the Stuart English kings were also the monarchs of Scotland, the circumvention was unlawful. One should note that English colonists in North America were included in this protection.

An intereting and amsuing anecdote of this book is the case of John Lilburne (1614-1657). He joined the opposition against Charles I in part because of Lilburne's opposition of perceived abuse of power and rights by Charles I. Yet, Lilburne clearly saw that Cromwell's arbitrary rule was more oppressive than Charles I's. Liburne was repeatedly arrested and put on trial for his life. Levy describes Lilburne as impossible. Lilburne made sure his rights, especially due process, were honored. He demanded public trials because he knew he was popular. To say the Lilburne had the courage of his convictions is an understatement. Lilburne was flogged in public, and he took full advantage his martyrdom. He made impassioned speeches after such floggins in spite of being in terrible pain. Readers would appreciate Levy's description of Lilburne.

Levy brings his study to date re The United States Constitution and The Bill of Rights. He gives specific current judidial rulings regarding Fifth Amendment Rights. One minor criticism is that Levy could have included the Medieval Catholic Canon Law with its precise concern for Par Legum (By Law or Due Process).

Levy' book titled THE ORIGINS OF THE FIFTH AMENDMENT is a valuable history study. This book is also important in that it is a warning about the recent efforts to deny criminal defendants any information about charges against them or access to legal counsel (due process). Readers may think this only applies to someone else. The fact is police state do not suddenly emerge. They develop by incriments. This book should serve as a warning, but too many Americans do not know nor care about their rights until it may be too late. The fact that a few dissenters take a stand may be a good sign. Levy dedicated this book to Mr. Gitlow who was was involved in the important Supreme Court Case titled GITLOW VS NEW YORK (1925). This reviewer urges readers to read and absorb this book.

7 of 7 people found the following review helpful:

5.0 out of 5 stars More timely than ever, April 30, 2003

By 

Robert D. Harmon "bobnbob3" (Mill Valley, CA) - See all my reviews
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This review is from: Origins of the Fifth Amendment: The Right Against Self-Incrimination (Paperback)

I read this in summer 2002 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, to not be compelled to testify against yourself, 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 in fall 2002 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.

4.0 out of 5 stars Valuable resource for understanding the Fifth Amendment, September 6, 2010

By 

Steven A. Peterson (Hershey, PA (Born in Kewanee, IL)) - See all my reviews
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This review is from: Origins of the Fifth Amendment: The Right Against Self-Incrimination (Paperback)

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.