Ireland, Robert M.

English

University of Kentucky

Kentucky Law JournalVolume 57 | Issue 3 Article 201969Origins of the Fifth Amendment: The RightAgainst Self-Incrimination by Leonard LevyRobert M. IrelandUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Book Review is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationIreland, Robert M. (1969) "Origins of the Fifth Amendment: The Right Against Self-Incrimination by Leonard Levy," Kentucky LawJournal: Vol. 57 : Iss. 3 , Article 20.Available at: https://uknowledge.uky.edu/klj/vol57/iss3/20BOOK REVIEWSexpense, justified by the "punishment principle". Dr. Menninger doesnot attempt to prescribe penalties for specific crimes, but urges thateffective, reasonable and humane penalties could be set if publicvengeance could be ignored.The author hopes that his reader will become concerned enoughto investigate for himself. He says the criminal justice system "is acreaking, groaning monster through whose heartless jaws hundreds ofAmerican citizens grind daily, to be maimed and embittered so thatthey emerge implacable enemies of the social order and confirmed intheir 'criminality'." The high rate of recidivism among criminal of-fenders has emphasized this point.In closing, the author reviews the remarkable strides of the lasttwenty years in the care and treatment of the mentally ill, all of whichis a direct result of the public's concern. He predicts that,[s]omeday, somewhere, the same thing will happen with respect totransgressors and offenders. It will be harder to bring about, for reasonswe have given: the public has a fascination for violence, and clingstenaciously to its yen for vengeance, blind and deaf to the expense,futility, and dangerousness of the resulting penal system. But we arebound to hope that this will yield in time to the persistent, penetratinglight of intelligence and accumulating scientific knowledge. The publicwill grow increasingly ashamed of its cry for retaliation, its persistentdemand to punish. This is its crime, our crime against criminals-andincidentally our crime against ourselves. For before we can diminishour sufferings from the ill controlled aggressive assaults of fellowcitizens, we must renounce the philosophy of punishment, the obsolete,vengeful penal attitude. In its place we would seek a comprehensive,constructive social attitude-therapeutic in some instances, restrainingin some instances, but preventive in its total social impact.1This book should be read by the public as well as by thoseconcerned with the administration of criminal justice, for it is societywhich ultimately is harmed by the failure of the system to correct andreform those who pass through our correctional system.Harold E. BlackDeputy CommissionerKentucky Department of CorrectionsOIGINs OF THE FIFTH AMENDMEN: THE RIGHT AGAINST SELF-IN-anmATIoN. By Leonard Levy. New York: Oxford University Press,1968. Pp. 561. $12.50.Leonard Levy has once again proved that historians can write legalhistory and write it well. With this book he has established himself asI K. MErNNIGER, THE CRnME OF PuNisEa~mNT 280 (1968).KE-TucKY LAw JoRN V5one of the foremost scholars of Anglo-American law. Furthermore,he has filled one of the multitude of gaps in the history of constitutionaldevelopment. Finally, he has found something in the American legaltradition for which the more zealous civil libertarians can be thankful.As the title of his book suggests, Levy has endeavored to give us adefinitive history of the origins of the right against self-incriminationembodied in the fifth amendment. Of course he cannot do so withoutprobing into the mysteries of English law, and probe he does. Whenhe is finished with the task of translating English customs into Ameri-can practice, he posits the thesis that American legalists truly believedin a right against self-incrimination as an adjunct of due process. Heemphasizes that the fifth amendment was intended to incorporate aright, not a privilege, and in so doing endorses the view of the mostardent libertarians of the Warren Court. In short, this historian whowhen he explored the colonial and early national attitude to-ward freedom of speech and the press, found a legacy of suppression,and who, when he examined Thomas Jefferson and civil liberties, founda persistent, profound and comprehensive darker side, has, in hislatest venture into the archives, discovered a more positive traditionof American civil liberties.Much of Levy's book concerns the rather oppressive procedures ofEnglish ecclesiastical tribunals and the efforts of their victims tocircumvent them. Not surprisingly, many of the theories underlyingthe right against self-incrimination came from the mouths of martyrsfacing fanatical inquisitors. The Church had invented an oath ex-officio whereby a party brought before an ecclesiastical court wouldhave to swear to answer truthfully all questions, no matter how in-criminating. Such a device was obviously useful to heretic hunterssince, in effect, errant clergy could be forced to condemn themselveswithout independent investigation and establishment of guilt. Themost enterprising of the accused inevitably groped for ways to foiltheir accusers, and many of them came up with an untested maxim,nemo tenetur prodere seipsum, which meant that no man is bound tobetray himself. Thus, if the Church was to locate a fresh heretic shewould have to do so on her own. Judges were seldom amenable tosuch arguments, but sometimes alleged recusants did delay or avoidpunishment because of their legal ingenuity and their silence.One of the most assiduous prosecutors of theological seditionistswas John Whitgift, Archbishop of Canterbury under Queen Elizabeth.Whitgift helped found the High Commission as a tool to establishreligious conformity and used it with great effect on the increasingnumber of English clerics who embraced some form of Puritanism.[ ol. 57,BOOK REVIEWSDespite his successes, Whitgift did encounter some opposition fromParliament and a great deal from such astute Puritan lawyers andthinkers as Thomas Cartvright, James Morice and Nicholas Fuller.It was only through the personal intervention of Queen Elizabeth her-self that Whitgift and his High Commission were able to withstandthese assaults which were based, inter alia, upon an alleged rightagainst self-incrimination. Even though they usually lost the battles,the learned lawyers of left-wing Protestantism made enormous contri-butions to the theory of the right of silence, especially when theycleverly, though fallaciously, began to ground their attacks upon theMagna Carta.The Puritans pursued the battle against self-incrimination andthe High Commission with more zeal and profit under the earlyStuarts. Increasingly they called upon the common law courts, con-trolled in large part by their supporters, to enjoin the proceedings ofthe King's prerogative courts which specialized in the doctrines ofcompulsory testimony. The fall of the monarchy during the EnglishCivil War removed one obstacle to the sought-after civil liberty, andeventually Englishmen acquiesced in the right to silence, but onlyafter the Puritans enjoyed a period of their own brand of judicialoppression. Levy assigns a good share of the heroics of his study toJohn Lilburne, a professional dissident of the times, whose repeatedappearances before both Stuart and Cromwellian tribunals smackedwith such brilliance that it was almost inevitable that the right againstself-incrimination would attach itself permanently to the growingbody of English civil liberties.Having established the existence of the right in England by themiddle of the seventeenth century, Levy next pursues his quest in theAmerican colonies. There he finds the search more formidable, forcolonial legal sources are thinly scattered and often uninformative.From the skimpy evidence which does exist, he concludes that theright of silence was only sporadically observed by seventeenth centuryAmerican jurists. This is probably because there were too few lawyersand law books in America and thus much of the English law was inan undiscovered state. Sophistication came in the eighteenth centurywith the rise of a plentiful and educated American bar and the ap-pearance in colonial libraries of an adequate stock of legal treatisesand reports. Levy argues that by the middle of this century the rightagainst self-incrimination was firmly fixed in many colonies.Although the Revolution put strains on civil liberties in general,the specific right of criminal defendants to refuse to bear witnessagainst themselves was expressly embodied into some of the new1969]KENTucKY LAw JouRNALstate constitutions. After the war with Great Britain, many state tri-bunals recognized the liberty, some to the extent of applying it towitnesses and to parties in civil disputes. By 1789 there was a viablecorpus of state law and custom endorsing the right, and it wastherefore somewhat natural for James Madison to include it in hisdraft of the fifth amendment. Although Levy admits that there isvirtually no evidence concerning legislative intent, he does speculatefrom the language itself that the amendment was designed to be broadin scope and mandatory in application.Levy's book, although excellent, is not without its weaknesses. Theauthor devotes too much space to the procedural controversies ofecclesiastical tribunals and too little to the status of the common lawon the subject of involuntary testimony. Indeed, he hardly broachesthe latter topic until midway in his book, although it would seem tobe more central to his thesis. In addition, he writes excessively aboutthe religious controversies themselves although they serve only asbackground to the legal questions involved. In contrast, Levy conveysan impression of hastiness in his treatment of the colonial response toEnglish precedent. Granted the sources are thin, but so, sometimes, isLevy's discussion of them. Finally, the author seems unduly Whiggishin his summary remarks on the supposed dedication of the foundingfathers to the right against self-incrimination. That the revolutionaryand constitutional patriarchs were so devoted does not seem to followfrom Levy's preceding discussion; indeed the early legalists ofAmerica seem to have been somewhat uncommitted to many of thefundatmental elements of what modernists would call "due process.Despite these errors of emphasis and exaggeration, Levy has givenus a brilliant piece of scholarship on a much-neglected subject.Robert M. IrelandAssistant Professor of HistoryUniversity of KentuckyA ComMnENTARY ON THm CONSTT=uTON OF THE UNrIED STATES; PnAT III:RiGHTs OF THE PERsON. 2 vols. By Bernard Schwartz. New York:Macmillan, 1968. Pp. 1018. $25.00.Rights of the Person comprises, in two volumes, the third andconcluding part of a comprehensive commentary on the United StatesConstitution.1 Part I (two volumes) dealt with the powers of govern-1 Its publisher styles it "the most comprehensive commentary on the Con-stitution yet to appear."[Vol. 57,

Origins of the Fifth Amendment: The Right Against Self-Incrimination by Leonard Levy

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2824&amp;context=klj

Origins of the Fifth Amendment: The Right Against Self-Incrimination by Leonard Levy

Abstract

Similar works

Full text

Available Versions

University of Kentucky