Origins of the Fifth Amendment

289 Pages·1999·28.92 MB·English

by  Leonard Levy

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ORIGINS OF THE FIFTH AMENDMENT
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THE RIGHT AGAINST SELF-INCRIMINATION
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LEONARD W. LEVY 0-
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ORIGINS OF THE FIFTH AMENDMENT. Copyright© 1968 by Clio En
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terprises, Inc. This book was first published in 1968 and is here reprinted by
arrangement with the author. Firsc Ivan R. Dee paperback edition published
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1999. For information, address: Ivan R. Dee, Publisher, 1332 North Halsted
Street, Chicago 6o622. Manufactured in the United States of America and
( printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data:
(_
Levy, Leonard Williams, 1923-
Origins of the Fifth Amendment : dte right against self-incrimination /
(_ Leonard W. Levy. - 1st Ivan R. Dee paperback ed.
p. cm.
(_ Originally published: New York: Oxford University Press, 1968.
Includes bibliographical references and index.
( ISBN 1-56663-27o-6 (alk. paper)
1. Self-incrimination-United States-History. L Tide.
KF(J668.L48 1999
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345.73'056--dc21 99-34149
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PREFA C E
THE Bill of Rights epitomizes one of our history's most noble and
enduringly important themes, the triumph of individual liberty,
/
yet it has been one of the neglected subjects of scholarship. Al
though constitutional guarantees of personal liberty go to the heart )
of American political philosophy, there is no satisfactory study of
the origins of the first state bills of rights and there are few studies )
of particular righcs. The courts have assured us, again and again,
·!
that our understanding of the right against compulsory self-incrim
ination is dependent upon history. Chief Justice Warren, for ex
ample, noting that the right "was hard-earned by our forefathers,"
stated that the "reasons for ics inclusion in che Constitution-and
the necessities for its preservation-are to be found in the lessons
of hiscory." Hiscorians have scarcely depicted that history despite
the reliance of jurists upon chem. This is the first book on the
origins of the right. ')
Although the legal profession customa~..re · · o the right
against self-incrimination as a "privilege," f'call it a "righc'' cause
it is one. Privileges are concessions granre· 1c government co )
ics subjects and may be revoked. "In the United States," however,
as James Madison observed, "the people, not the government, pos
sess the: absolute sovereignty. ... Hence the great and essential
rights of the people are secured ... not by laws paramount to
prerogative, but by constitutions paramount to laws." Although
the right against self-incrimination originated in England as a
~I
common-law privilege, the Fifth Amendment made it a constitu >
tional right, clothing it with the same status as other rights, like
lreedom of religion, that we would never denigrate by describing
them as mere privileges.
VII
Preface Preface
Vlll IX
The Supreme Court of the United States once held that the right by far, the right against self-accusation. The familiar phrase of
against self-incrimination is simply a rule of evidence rather than a contemporary usage seems to be of twentieth-century vintage.
fundamental principle of liberty and justice. Belatedly the Court Nevertheless, l use it, even if anachronistically, as a convenient
has returned to its still earlier and more historically accurate view term that readers will recognize.
that the right is indeed such a principle. Those who fought to es Another anachronism in chis book is the frequent modernization
tablish it certainly regarded it as such. They associated it, however of spelling and punctuation of very old language. When using
inaccurately, with Magna Carta. Today the Court calls it "one of our manuscript sources I reproduce the material as in the original. But
Nation's most cherished principles," yet still carelessly refers to it it was impossible to discover the original manuscript of every word
as a "privilege." quoted; hence when using printed versions of primary sources, I
As far as precedence is concerned, history exalts the right against am dependent upon the practice of earlier historians and editors.
self-incrimination. It won acceptance earlier than the freedoms of Some reproduced verbatim; others modernized. Consequently,
speech, press, and religion. It preceded a cluster of procedural readers may find me quoting a sixteenth-century document in all
rights such as benefit of counsel. It is older, too, than immunities its antique flavor, only to discover in the next paragraph a fifteenth
against bills of attainder, ex post facto laws, and unreasonable cenrury line rendered in today's English. I did not wish tO tamper
searches and seizures. History also exalts the origins of the right with the original materials by consistently modernizing everything.
against self-incrimination. Its origins arc related to the development The results are sometimes jarring but represent the best possible
of the accusatorial system of criminal justice and the concept of fidelity to the printed sources. However, I have not followed the
r
fair trial; to the principle that fundamental law limits government originals when dating documents. Unti! the mid-eighteenth century,
-the very foundation of constitutionalism; and co the heroic the first day of the new year under the Julian calendar was March
[
struggles for the freedoms of conscience and press. 25. To avoid confusion, to show temporal relationships more ac
My subject is the history of the right against self-incrimination curately, and for the sake of consistency, I have rendered all dates
[
from its origins to the ratification of the Fifth Amendment in 1791. in accordance with the modern Gregorian calendar. Thus, an
Accordingly, nothing in this book is intended to prove or disprove event which occured on r,..farch 24, 1590 (old style), becomes
any position relating to the contemporary controversy about the March 24, 1591 (new style).
right against self-incrimination. I care only for an explanation Most of this book is English history, because the origins of the
of its background. Chief Judge Calvert ~fagruder once said, "Our right against self-incrimination arc English. Excepting the First
forefathers, when they wrote this provision into the Fifth Amend Amendment, our Bill of Rights is primarily English in origin.
ment of the Constitution, had in mind a lot of history which has Most of its provisions deal with procedure for the very good rea
been largely forgotten today." I have tried co tell that story, fully son that the history of both liberty and constitutional government
and objectively. is in large part the history of procedure. The story begins even
The right or "privilege" against self-incrimination was not a before Magna Carta, because the English legal system-and there
phrase known to the framers of the Fifth Amendment. They spoke fore the American-owes so much to Henry II, who ruled England
more broadly of the right of a person not to be a witness against in the last half of the twelfth century. Magna Carta itself first be
himself. The first state bills of rights spoke of one's right not to came the talismanic symbol and source of individual freedom in
be compelled to give evidence against himself. Earlier it was called connection with the struggle against compulsory self-accusation.
a right of silence, a right against self-infamy, and, most commonly Given the fact that English history bulks largest in the history of
X Preface Preface XI
~e ri_g~r not to be a witness against oneself, the task of depicting chat the Bill of Rights, which prorects mainly the rights of the crim
tts ongms would have been better performed by a scholar whose inally accused, was added to the Constitution as a result of an over
qualifications ~re n_1ore suitable than mine. By training and experi
whelming popular demand chat Washington, Hamilton, and others
e~ce I am a h1stor'.an of the United States. Yee I enjoyed writing in the first administration could not possibly ignore. Unable to find
this book because it gave me the opportunity ro learn more about a good book on the history of the origins of chis clause of the Con
a time and place that make American history seem like a mere stitution, I resolved co teach myself abouc the subject and to write
postscript. But I have few illusions about making much of a con
my own book about it.
tribu~ion_ to English history- medieval, Tudor, or Stuart; legal or The publicarion of The Fifth Amendment Today, a little book by
constttut10nal. 1 am addressing myself to those who, knowing L:Y<.:n Erwin N. Griswold in 1956, reinforced my ambition. If che conser
less about English history than I, arc nevertheless interested in the vative dean of the Law School at Harvard University could write an
origins of an important clause in the United States Constiwcjon. essay in defense of the contemporary use of the amendment, I fig
. The Fifth Amendment is almost synonymous with the ured that its origins and adoption as part of the Constitution in I 791
nght against compulsory self-incrimination. One who "pleads che merited a story worth celling.
Fifth" i.s not insisting on grand jury indictment' freedom from After the publication of this book in 1968, 1 goc che impression
.
double Jeopardy, or JUSt compensation for property taken by the char a surprising number of reviewers reacted co it not on the basis
government-all safeguarded by the Fifth. He is saying that he will of its merits or what it caught about the history of the origins of the
not reply to an official inquiry because his truthful answer miglu right; they reacted, rather, on the basis of cheir predisposition to
expose him to criminal jeopardy. He seems co be saying that he has ward the right. Avowed opponents unfavorably reviewed the book,
something ro hide, making the Fifth appear to he a protection of and vice versa. My repucacion presented an in vicing target. In 1 ()82
the guilty and raising the question why the framers of the Bill of two distinguished constitutional historians included my name
Rights should have wanred to protect the guilty. Without doubt the among the "giants" of constitutional history, and I was the sole sur
right against self-incrimination is the most misunderstood, unrc vivor of a list of fifteen. Moreover the fact char the book won a
specced, and concroversial of all rights.
major prize also enhanced its qualities as a target.
Over a half-century ago, during rhe era of McCarthyism, when I am pleased and honored char the book, a generation after pub
t~e United States underwent one of its periodic red scares, politi lication, is still read and provokes criticism. Five of the six contrib
cians and newspapers collaborated in giving the utmost publicity to utors to a 1997 University of Chicago Press hook on the Fifth
~he ~um_bcr o~ ti~es some so-called "hostile" wirness before a leg- Amendment made my book the target of their essays, and each had
1slat1ve mvesugacing committee invoked the fifth Amendment. previously published a law review article lambasting it. I enjoyed
Dozens of individuals were censured before the bar of public opin responding. I have rarely had so much pleasure in destroying my
ion as "Fifth Amendment Communists," a term then infamous. critics, all of whom were flac wrong in their criticisms. I published
Demagoguery is fairly easy to comprehend, bur not a nationwide an article in which I exposed their errors and mischaracterizations,
c~ncempt for a constitutional right. T wondered why the Bill of and I concluded the forty-page article in che Cardozo La7Q.• Review
Rights contained a provision that beneficed criminals and enemies (December 1997) with the remark chat if I were rewriting the book
of the United States. I knew enough about those who framed and I would not need co change it. I sent a copy of the article to each
ratified the Bill of Rights to understand that they could not be dis of my critics, inviting their replies, privately or in print. None re
missed as fools, starry-eyed idealists, or mushy liberals. I knew too sponded.
t
XII Preface
In doing this book I had the assistance of a John Simon Guggen
heim Memorial Foundation fellowship to aid my research and a fel
lowship from the Center for the Study of the History of Liberty at
Harvard University, where Oscar Handlin gave me his encourage
CONTENTS
ment and my writing _the benefit of his scrutiny_ My daughters,
Wendy Ellen Harris and Leslie Levy, gave me no assistance and
don't care whether I mention them in acknowledgments, but I do.
My wife, Elyse, to whom this book is dedicated, could not have
rewritten it without my assistance. Her aversion to excessive ad I Rival Systems of Criminal Procedure, 3
jectives and complicated sentences forces her, out of a sense of pro
II The Oath Ex Officio, 43
fessional pride, to disclaim any part of the authorship.
The Elizabethan Persecution of Catholics, 83
III
w.
l L. L. IV Whitgift and the High Commission, 109
Ashland, Oregon
[ June 1999 y Puritanism Versus the High Commission, I 36
VI Canwright, Barrow, and Morice, 173
I
VII James I, Bancroft, and Prohibitions, 205
(
Vlll Fuller and Coke, 229
I IX Lilburne and the Abolition of the Oath, 266
I X The Right Secured, 30 1
XI The American Colonies in the Seventeenth Century. 333
I
XII Establishment of the Right in America, 368
l
Xlll The Fifth Amendment, 405
l
APPENDIX: Talmudic Law, 433
NoTEs,443
BrnuooMPHY, 52 0
INDEX, 545
ORIGINS OF THE FIFTH AMENDMENT
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CHAPTER l
"Surely, in popular parlance and even in legal lirerarure, che term 'Fifth
Amendment' in che concext of our time is commonly regarded as be
ing synonymous wich the priv'i.lege against self-incrimination." Chief
Justice Earl Warren in Quinn v. U.S., 349 U.S. 155, at 163 (1955).
Rival Systems of Criminal Procedure
"Ours is the accusatorial as opposed to tbe inquisitorial system. Such
has been the characteristic of Anglo-American criminal justice since ic
freed itself from p.cactices borrowed 6y the Star Chamber from the
Continent ... Under our system society carries the burden of proY
ing it charges against the accused not out of his own month." Justice
Felix Frank-funer in Watts v. lndiann, 338 U.S. 49, at H (1949).
" ... the American system of criminal prosecution is accusatoriaJ, not In 153 John Lambert was chained to a stake in S_mithficl?, Eng
7
inquisitorial. and ... che Fifth Amendment privilege is its essential land, and roasted in the flames as an obdurate herettc. A pnest and
mainstay." Justice William J. Brennan in Malloy v. Hogan, 378 U.S.
fellow of Queen's College, Cambridge, he had had a long record
1, ac 7 (1964).
of trouble with the authorities. Five years before his death the
"The privilege against self-incrimination is a right that was hard Archbishop of Canterbury, instigated l>y Sir Thomas More, sum
earned by our forefathers. The reasons for its inclusion in the Con moned Lambert to Lambeth Palace for an inquisition into his reli
scirocion-and the necessities for its preservation-are to be found in gious beliefs. Suspected of having become ~ convert to P~~te~
the lessons of history." Chief Jusrice Earl Warren in Quinn v. U.S., tantisrn, he had to answer by sworn affidavit to forty-five arti
349 U.S. 155, at 161 (1955). cles," or charges. Framed as questions, the articles were calculated
"The privilege against self-incriminarion is a specific prov1s1on of to expose Lambert's doctrinal convictions. He responded with all
which it is peculiarly true that 'a page of history is wonh a volume of the candor of a zealot destined for martyrdom, but refused to
logic.'" Justice Feli.-c Frankfurter in D/lma,m v. U.S., 350 U.S. 422, answer the first article demanding whether he had ever before
at 438 ( 1956). been suspected of heresy. His memory was uncertain, he clai~ed,
but "though I did remember . . . yet were I more than nv1ce a
THE FIFTH Ai\-1ENDMENT fool to show you thereof; for it is written in your own law, 'No
"No person shall be held to answer for a capital, or otherwise in man is bound to bewray [accuse] himself' "-to which he ap
famous crime, unless on a presentment or indictment of a Grand Jury, pended the Latin expression of that maxim, "Nemo tenetur pro
e.xcept in cases arising in the land or naval forces, or in the Militia, dere seipsum." 1
when in acmaJ service in time of War or public danger; nor shall any
The suspicion that Lambert was a hereti~ wa~ founded partl!
person be subject for the same offence to be twice put in jeopardy of
on his alleged belief-one of the charges agamst him-that eccl_es1-
life or limb; nor shall be compelled in any Criminal Case to be a wit
ness against himself, nor be deprived of life, liberty, or property, with ascical judges had no right to compel suspects to swear on the Bible
out due pro~ess of law; nor shall private property be taken for public an oath to tell the truth. Lambert replied that he was not opposed
use, without jusc compensation." ( lralics added.) to oaths when they were "lawful." What grieved him was the
3
4 Origins of the Fifth Amendment Rival Systems of Criminal Procedure 5
habitual practice by the ecclesiastical judges of forcing a man to <lures. The latter half of the tv,,clftb century and first half of the
swear
thirteenth was a period of transition that witnessed profound
transformations of procedure. Old forms of trial, once universal,
to make true relation of all that they shall demand him, he not
broke down and newer ones emerged. In England, the new forms,
knowing what they will demand, neither whether it be lawful to
presencmem and trial by jury, preserved the accusatorial character
show them the truth of their demands, or no: for such things
there be that are not Jawful to be showed ... Y ca, moreover, of the old; on the Continent and in the ecclesiastical courts, inquis
if such judges sometimes, not knowing by any due proof that itorial procedures were triumphant. By no coincidence the liber
such as have to do before them are culpable, will enforce them, ties of the subject were to thrive in England and be throttled on
by an oath, to detect themselves, in openinv before them their the Co1nu·a.eE~----
hearts; in this so doing, I cannot see that ~en need to conde 1commuoiry · uStice re ·1ed in England
scend to their requests. For it is in the law (but I wot not cer at t 1e orman onqucst. The legal system was .ciwal
tainly_ the place) thus: 'No man is bound to bewray himself.' iscic, dependent upon oaths at most stages of litigation, and p~
Also m another place of the law it is written, 'Cogitationis
nieated by both religious and superstitions notions. Legal concepts
poenam nemo patiatur,' 'No man should suffer punishment of
were so primitive that there was no distmccion between dvilana
r
men for his thought.' To this agreeth the common proverb, that
criminal cases or between secular and ecclesiastical cases. The pro
is thus: 'Thoughts be free, and need pay no toll.' So that, to
ceedings were oral, very personal, and highly confromative. Juries
conclude, I think it lawful, at the commandment of a judge, to
were unknown. One party publicly "appealed," or accused, the
make an oath to say the truth, especially if the judge requireth
an _oath duly, and in lawful wise . . . and that also for purgation other before the community meeting at ·which the presence of
of infamy, when any infamy is lawfully laid against him.2 both was obligatory. To be absent meant risking fines and out
lawry. After the preliminary statements of the parties, the court
Thus Lambert C\.vice claimed a right not to disclose to ecclesias renderecfJudgment, not on the merits of t1ie issue nor ~uestion
tical judges information that would place him in criminal jeop orgu1lt or mnocence-; but on the m}lftn~y which it should be
ardy. He would take no oath that would force him to incriminate resolved, [email protected]~nr in ocher word receded ial because it was a
cl . . -- !w
himself, because he had not been duly accused. The right against t It might be e
self-incrimination even after due accusation was still more than a ':'.Purgation.,...b I orde r, after the Norman Conquest. b · battle.
century away, but it originated as a defensive claim by the Lam Excep6ng c · y battle, only one party was tried or, more ac
berts who were denied freedom of thought and were victims of curately, was put to his "proof." Proof being regarded as an ad
the canon law's inquisitorial system. vantage, it was usually awarded to the accused party; in effect he J.
Several centuries of English experience with an accusatorial sys had the privilege of proving his own case.3
tem of criminal justice explain Lambert's defiance of his inq~is Trial by exculeacory oath and cQmEurgation, also called canon-
itors. He echoed protests that had been leveled against canon law ical purgation, constsred of a sworn statement to tlie truth of one's
procedures ever since the Church introduced them into England. claim or denial, supported by tht_?aths of a certain number o~
His argument on illegality of the proceedings against him was low swearers PrnSttmably they, no more than the claimant, would
fo~nded on a system of trial that was antithetical to the inquisi endanger their immonal souls by the sacrilege of false swearing.
tonal system and older than Magna Carta. Indeed, accusatorial Originally the oath-helpers swore from their own knowledge to
procedure antedated the Norman Conquest. From the early Mid the truth of the party's claim. Later they became little more than
dle Ages, civil and ecclesiastical authorities throughout western character witnesses, swearing only to their belief that his oath was
Europe had employed substantially similar accusatorial proce- trustworthy. If he rounded up the requisite number of compur-