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.
on February 1, 2016
This is one of the first works of constitutional history that I ever read, and it remains by far one of the best. Leonard Levy over the course of forty years published numerous works analyzing figures and works in American and English law, and this one analyzes the rights guaranteed in the Fiften Amendment. Specifically, our guarantees of a right to a grand jury, the prohibition on double jeopardy, but most importantly, the right to refuse to bear witness against oneself and a trial under due process of law. The Takings Clause is not discussed at all.
The U.S. Constitution is fundamentally an English document in both language and its legal conceptions, so it is no surprise that is where Levy focuses his attention. Although Magna Carta has received the greatest amount of attention, Levy shows that it organic process, most of it coming afterwards, that created our fundamental rights. One thing he emphasizes is the brutality present in earlier interrogation and incarceration. Although the Catholic Church had banned the use of torture under the Fourth Lateran Council in 1215, interrogators were wont to follow these guidelines closely and much that now would qualify as torture was then viewed as de rigeur. In later centuries, figures like John Lilburne and the Levellers insisted on the right to have the charges against them put in writing and to see the evidence to be used against. Eventually, these efforts made headway and secret courts like the Star Chamber were eventually abolished and courtroom procedure formalized.
Also interesting was the history of oaths. Although we now think of the oath itself as a pro forma even at trial, with the real threat being a charge if perjury if one lies, in the Middle Ages, the oath was key. If one failed to correctly say every syllable, often the entire process would have to be redone. If one lied, it was believed the individual was putting their immortal soul in peril. Obviously, worldly matters and the prospect of financial gain still made people lie, so the legal fiction of absolute truth of statements made in court made for a few centuries of awkward transition.
On the whole, this is a fantastic book. Levy succeeds in modernizing the spelling of modern medieval documents without making the transition noxious. He also dug into the original source material and his footnotes show it. He writes in a lively manner that made this thick tome's reading pass quickly, and I had that rare feeling of being more knowledgeable after I had finished. For those with an appreciation of our constitutional rights and history, this book by Levy is a must.
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.
on July 30, 2013
I would strongly recommend this book for any student of criminal justice. This book contains the very essence of how our most important right came to be. It is informative and enlightening to say the least. I enjoyed reading ever page and then went backing for a second read to insure I did not miss any fine detail. I am a retired LEO with 32 years with the department and hold a masters degree in criminal justice. I would love to been able to teach a course based on this book, it offers that much.
on April 27, 2013
From Kenneth Ellman, Newton, New Jersey 07860, email:email@example.com
April 27, 2013. I have owned `Origins of the 5th Amendment' for over twenty years. It is time to write a note. It is both difficult and invigorating to write about the 5th Amendment to the United States Constitution. When one contemplates the significance of this accomplishment of human beings, that being the creation of the 5th Amendment protecting the people of the United States from harm, you should ask yourself how and why, why did the human mind part with such a long history and behavior of abuse and assault, to create such ideas. The answer to that I suspect confronts the question itself. Perhaps there indeed was a long quest by human beings for the safety and protection of the 5th Amendment type idea, and in the past their reach was just not long enough. The time was not yet on hand. Another fact is that the 5th Amendment is more well known for the clause:
`...nor shall be compelled in any criminal case to be a witness against himself...'.
Yet, the 5th Amendment is more than `the right against self-incrimination', but for the purposes of this review that is what author Leonard W. Levy discusses. So we have the excellent work by Professor Levy which details the relationship of the 5th Amendment in the United States Constitution to the history and precedents that came on before its existence. The author, Prof. Leonard W. Levy, died at the age of 83 in 2006. He was a distinguished constitutional historian and not an attorney. He won the Pulitzer Prize for History in 1969 and taught at Brandeis University and the Claremont Graduate School.
Lest you forget the entire 5th Amendment I repeat it here:
"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 offense 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"
This book by Levy spans the entire English History and Common Law development of the right against self incrimination. It includes the 12th and 13th centuries, the period of the Norman conquest, times when trial by jury were unknown and trial by Ordeals were still practiced.
It discusses the Magna Carta, the religious use and compulsion to testify against yourself put forth by Sir Thomas Moore, Bishop William Smith and Bishop John Longland; the attacks upon John Lilburne and John Wilkes are covered and the wonderful Court decision of Lord Camden in the case of Entick v. Carrington. His book carries you right into the creation of the 5th Amendment and includes excerpts from the Founding Fathers to modern jurists such as Abe Fortas and Felix Frankfurter. In closing Levy attaches an extraordinary appendix of commentary from ancient Jewish Law Texts from the time of Moses and Talmudic writings. The Ancient Trial Law of Israel was highly developed with the duties of Judges and criminal procedure well established. What we consider today to be `right against self incrimination' and our 5th Amendment was discussed in stunning and eerie detail by the ancient laws and Courts of the Jewish nation.
Keep in mind that this Levy book of 561 pages only discusses a small part of the 5th Amendment.
We have a vast legal heritage as Americans and how much of that we impart to our children will significantly determine our future. Kenneth Ellman, email:firstname.lastname@example.org, Box 18, Newton, NJ 07860.
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.
on March 23, 2006
If you take a survey of Americans of what their most important right is, some would say the freedom of religion, others might say the freedom of speech, but how many would say the right to not incriminate oneself in a criminal trial. Few rights are so clearly illuminated by its definition as this one, yet it is so rarely appreciated. This book provides the history of this concept; the right against self-incrimination, from its roots in the late Middle Ages thru the its incorporation in the US Constitution, and the spread of its practice throughout the growing US nation. As such the book is required reading for those going into law enforcement, criminal justice, and law. As a general text and history book, it is quite boring and not for the easily bored.
on August 7, 2010
Origins of the Bill of Rights by Levy is a classic every politician, policeman, and law student should read.