Unlike the first four amendments, the Fifth and Sixth Amendment is constructed of numerous parts. The First Amendment also contained several aspects, but is centered on protecting freedom of expression, and government interference in the right of conscience. Both the Fifth and Sixth Amendments are designed to protect the rights of a person accused of committing a crime, however the Fifth Amendment includes a clause concerning eminent domain.Many of the aspects of both Fifth and Sixth Amendments have direct ties to tyrannical practices of the British during Colonial rule, just as the other amendments in the Bill of Rights. The lack of due process in Colonial times has a long history and affects more than just the Fifth and Sixth Amendments. The lack of due process also is apparent in the Fourth Amendment as a result of the Writ of Assistance to broad unspecific search warrants (The Origins of the Bill of Rights (Part 3: British Tyranny, the Fourth Amendment)).
Fifth Amendment
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.
CLAUSE 1 and 3
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 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
The concept of preventing self incrimination can be seen in a limited aspect in the Magna Carta of 1215.
38. In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
Though this is not nearly as prohibitive as we now know "the right to remain silent" to be, it can be seen that the concept of using supporting evidence or witnesses to convict the accused. This clause does not directly prohibit self incrimination but it does require supporting witness testimony to support a statement the accused may have made.
The roots of these two clause can be traced more directly to the Courts of Star Chamber and High Commission used from 1487-1641, though the Star Chamber was operating many years before 1487. The Court of Star Chamber would become a powerful court under King Henry VIII, and in 1478 became a separate judicial body from the King's Council with the mandate to hear petitions of redress. The initial concept of the Star Chamber was to act as a type of appellate court, to oversee the operations of the Lower Courts. During the Tudor Dynasty (1485-1603, King Henry VIII was the first Tudor monarch) the mandate of the Court was changed and expanded to include instances of "public disorder".
Initially with the Court of Star Chamber, the court would review petitions of equity in property, corruption of public officials and land disputes, as an appeal from a lower court. However King Henry VIII and his councilors encouraged the plaintiffs to bypass lower courts and proceed directly to the Court of Star Chamber. Under the Tudor Dynasty court proceedings where open to the public. It would be in the Stuart period (1603-1714) that the power of the court would become truly oppressive. Under the Stuarts reign the power of the court grew substantially, from a court of appeals mainly of equity, to including cases of sedition. What this resulted in was the court was used to suppress opposition to Royal Policies. This policy led the trials of Nobles too powerful to be tried in Lower Courts.
The conduct of these trials was harsh and provided the accused little if any protection. Courts sessions were held in private so no public record or knowledge or the proceedings was known. The Court required the accused to answer any question asked of them, The accused was not given advanced notice of his trial, the charges against them, nor what evidence would be used preventing a legal challenge and confronting witnesses against them. Those found guilty had no recourse in appeal, and punishment was severe and swift to any perceived enemy of the crown.
King Charles I used the Star Chamber as a kind of Parliamentary substitute, to be able to try with out Parliament participation, since traditional English Courts for appeals for peers was the House of Lords. It was not until 1641 that Parliament finally abolished the Court of Star Chamber, but the name survived as being synonymous for arbitrary and secret proceedings against individual Liberty.
Along with the abolition of Star Chamber in 1641, the doctrine of nemo tenetur (seipsum accusare) was incorporated into the British Court System. Nemo tenetur translates from Latin to mean, "that no man should be bound to accuse self", in other words, no person shall be compelled to bear witness against themselves. Thus the doctrine of a person being able to remain silent and not be forced to answer any questions which may incriminate themselves was adopted into English Law, and would find its way into the American Constitution.
Another aspect of the Court of Star Chamber also found its way into the Fifth Amendment, that being no person shall be "held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury". This was a common occurrence during the most tyrannical times of Star Chamber, where the accused was to face crimes threatening Life or Liberty without ever having knowledge of the facts, not any independent group determining sufficient fact exists to charge a person. Routinely the first the accused would know of an accused crime would be on arrival to Star Chamber. The Fifth Amendment requires an indictment of a crime or a Grand Jury Present (Grand Jury determination a "Public" Crime had been committed by a public official). When combined with the Sixth Amendment requirement of being informed of the nature of the charges, this will prevent instances such as Star Chamber from occurring. Clause 2
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb
Unlike many of the parts in all the Amendments of the Bill of Rights, the clause prohibiting Double Jeopardy has a strong root in English Common Law and earlier precedent. But even the English Law precedent did not go nearly far enough for the Americans, and would be expanded in the Fifth Amendment.
The idea of preventing double jeopardy is not new and can be found in 355 B.C. Athens. An Athenian statesman Demosthenes said, "law forbids the same man to be tried twice on the same issue". Later the Romans would do the same and codify this ideal in the Digest of Justinian in 533 A.D. The principle of double jeopardy would survive the Dark Ages following the lead of the Greeks and Romans, through Canon Law and other early Christian writings.
In England the prohibition of double jeopardy was considered a universal maxim of English Common Law. This maxim was embraced by many jurists in England including Henry de Bracton, Sir Edward Coke, Sir Matthew Hale and Sir William Blackstone. However even though the idea of prohibiting double jeopardy existed, the use or doctrine of it was not nearly as broad as we are familiar with. Under English Common Law double jeopardy was prohibited only for capital crimes, and then only after a judgment of guilty or not guilty had been rendered. Double jeopardy protections did not apply in all lesser cases, nor in capital cases that were dismissed before judgment, and these would at times be used abusively by the Crown to retry criminals.
The writings of Henry de Bracton, Sir Edward Coke, Sir Matthew Hale, were very familiar to many American Colonists. Sir William Blackstone writings on English Common Law were published in England from 1765-1769 and in the American Colonies they became readily available in 1771, quickly selling out. Not all viewed is writings in positive light though including Thomas Jefferson, who said, "have done more towards the suppression of the liberties of man, than all the millions of men in arms of Bonaparte".However Blackstone's commentaries had an effect on the Colonists regardless of how some disapproved of his support for the British system. Blackstone was often quoted by Colonists to support claims that the Crown and Parliament were exceeding its lawful authority, including double jeopardy.
The narrowness of the scope of double jeopardy protections in English Common Law would influence how the Americans would make their own protections. The lack of protection against double jeopardy in anything less than a capital crime but allowing it in all others, and the ability of the state to dismiss a case it saw it was bound to lose being of concern. Though the direct abuse and tyranny by the British of double jeopardy is not nearly as influential in the adoption of this particular clause as others, the ability for it to take place and the historical legal precedent of double jeopardy would shape the Fifth Amendment.
nor shall private property be taken for public use, without just compensation.
The protection of private property from arbitrary, unjustified, unneeded and uncompensated seizure from government, is the purpose of this clause of the Fifth Amendment. Much like the double jeopardy clause, this one has roots in history as well, but would be expanded in the Fifth Amendment.
The takings clause as it is also known as, has its historical precedents in the Magna Carta in a few different parts, but as can be seen compensation or due process is not always required.
4. The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property.28. No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.
30. No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.
39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
The Magna Carta only offered limited protections in the taking of property. Land taken by a guardian (care taker or overseer of the land) could only take it from an underage heir for reasonable revenues, dues and feudal services. Compensation was not required to be given, but it could not be arbitrarily taken. Also other officials were prohibited from the taken of goods such as corn without immediate compensation, and horses could not be taken without consent. Finally free man could not have his property seized or imprisoned or his status removed, except by the judgment of his equals or other laws of the land, given an example of due process in the taking of property, however not through a formal court but by consent of peers.
This concept and limited scope would be followed by many of the Colonial Charters in North America for the British Colonies. In 1641 the Massachusetts Body of Liberties made the following provision regarding takings.
8. No man's cattle or goods of what kind soever shall be pressed or taken for any public use or service, unless it be by warrant grounded upon some act of the General Court, nor without such reasonable prices and hire as the ordinary rates of the country do afford. And if his cattle or goods shall perish or suffer damage in such service, the owner shall be sufficiently recompensed.
The Massachusetts provision only applied to goods or other goods and not to land. Compensation was required to be given for the goods, unless seized by a warrant. No other colony had such a provision, though it was not uncommon in any colony for compensation to be given if property or land was taken regardless of the fact it was not required. Compensation was not paid when roads were built on undeveloped land, except for Massachusetts.
No Colonial Charter prohibited regulations that diminished the value of property or land, and numerous colonial governments adopted regulations that restricted land use resulting in its devalue. Land use regulations among the colonies placed limitations on where certain businesses, such as bakeries, slaughterhouses, and stills could be located and restricted or mandated what crops farmers could grow. Other colonial laws also regulated the permitted density of development area. For example, a Connecticut building requirement limited the distribution of development within a given community. A New Jersey law prohibited the subdivision of home lots in certain areas to prevent overcrowding. The colonies of New Amsterdam and Virginia, regulated the aesthetic features of certain developments to a specific standard. Also in Massachusetts Bay Colony and early ordinance required the construction of a dwelling units no more than half a mile from the town's meeting house.
Numerous other examples exist of other colonies ordinances or regulations in which property could be taken. One Plymouth colony required those with rights in valuable minerals to exploit their rights to use or mine the minerals or forfeit them. Also a Maryland law required owners of good mill sites to develop the sites or have the risk of losing their property and have it given to someone else who would develop the site and use it for the mill.
But also at heart of the takings clause is the influence John Locke had on many of the Colonists, including but certainly not limited to James Madison and Thomas Jefferson. John Locke was a strong advocate of property rights, that one's property was their sole belonging, and no others had any right to it without consent. Samuel Adams in correspondence written in 1771 as British retribution against colonial dissenters became heavier, is instructive wrote the following:
“Mr. [John] Locke has often been quoted in the present dispute…and very much to our purpose. His reasoning is so forcible, that no one has ever attempted to confute it. He holds that ‘the preservation of property is the end of government, and that for which men enter into society. ........ Hence, says he, it is a mistake to think that the supreme power of any commonwealth can dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. The prince or the senate can never have a power to take to themselves the whole or any part of the subject’s property without their own consent: for this would be in effect to have no property at all.’ — This is the reasoning of that great and good man. And is not our own case exactly described by him?” sic
This view of Samuel Adams was far from being a lone voice in the crowd. The idea of property rights was deeply rooted in the Colonial hearts of many. In 1749 Benjamin Franklin wrote the following:
History will also give Occasion to expatiate on the Advantage of Civil Orders and Constitutions, how Men and their Properties are protected by joining in Societies and establishing Government [Benjamin Franklin, Proposals Relating to the Education of Youth in Pennsylvania, 1749]
By the time of the American Revolution fighting began in 1775, the Colonist opposed to British Rule were firmly in the belief that government's role was to protect property, not to seize it, as John Locke suggested in his Second Treatises on Civil Government:
Sect. 3. Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good. [Book II Chapter I, sic]
Sect. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others. [Book II Chapter V, sic, emphasis added]
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Not only did nemo tenetur find its way into the Bill of Rights, but other methods used by the Star Chamber would also be specifically protected against occurring to an individual or any accused are found in the Sixth Amendment.
As mentioned under the Fifth Amendment, the Star Chamber had significant influence due to its abusive and tyrannical nature against the accused. Each of the clauses in the Sixth Amendment can also be directly tied to Star Chamber.Under King Henry VII, session in Star Chamber were closed to the public, and members of the Kings privy Council would sit with the Judges on the Court. This would result in a Court partial to the King, in a court used to try sedition or others 'offenses' against the crown, or of nobles who did not have the desired loyalty. Regardless of where the crime was accused to have taken place, the accused would be tried in Star Chamber in London, away from the location of the crime, and often the accused would not be informed on the nature of the crime. The influences of this can be seen in the first portion of the Sixth Amendment, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation.
In addition to Star Chamber King George III had the practices of having judges dependent on himself, abolishing trial by jury and taking the accused from the colonies and have them tried in Courts in England, as reflected by the Declaration of Independence.
He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.
For depriving us, in many cases, of the benefits of trial by jury;
For transporting us beyond seas, to be tried for pretended offenses
All of these actions were reminiscent of some actions of Star Chamber and would be addressed directly by the Sixth Amendment.
Finally, another action from the Court of Star Chamber was in addition to the accused not having an impartial court or being informed on the nature of his charges, was the inability to confront his accusers or call witnesses for their behalf. These actions would be directly addressed in the last portions of the Sixth Amendment, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Ironically however, it was also Star Chamber that seemed to set the precedent of counsel for the accused. Not only was counsel an option for the accused in Star Chamber, it was a requirement and would be noted by the Supreme Court in 1975 in Faretta v California.
Many people today probably have never heard of Star Chamber, but the actions of it were well known to nearly every Englishmen and Colonists during that time. The Court of Star Chamber is now synonymous with Judicial tyranny, and has been for centuries.
In 1975 The United States Supreme Court in Faretta v California stated, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v. California, 422 U.S. 806, 821-22 (1975).
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