Lost and Found: The Forgotten Origins of the “Cruel and Unusual Punishments” Prohibition
Online veröffentlicht: 19. Juni 2025
DOI: https://doi.org/10.2478/bjals-2025-0013
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© 2025 John D. Bessler, published by Sciendo
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In
American jurists and scholars, however, have long mistakenly traced the first usage of the “cruel and unusual punishments” terminology to the English Declaration of Rights (7) and its statutory counterpart. (8) That is so despite a clear awareness of consequential efforts to bar cruel punishments and torture in England and colonial America pre-dating (9) England’s so-called “Glorious Revolution” of 1688–1689, (10) the English revolution that produced the English Bill of Rights (1689). (11) That revolution deposed King James II, England’s last Catholic monarch, and—in February 1689—brought Protestants William and Mary to the throne. (12) “Conditions in the 17th century shifted the balance of power toward Parliament,” the U.S. Supreme Court has written, emphasizing that the “power struggle” between the monarchy and Parliament “culminated in the Glorious Revolution, in which Parliament stripped away the remnants of the King’s hereditary revenues and thereby secured supremacy in fiscal matters.” (13)
The American Revolution took place against the backdrop of English history, including England’s Revolution of 1688–1689 that had led to the codification of common-law protections in the English Bill of Rights. America’s founders had studied English law, and they were determined to safeguard their own legal rights. For example, the “liberty-loving” framers of the U.S. Bill of Rights and their ancestors, U.S. Supreme Court Justice Hugo Black once emphasized, “detested” the compulsion of “self-incriminatory testimony by court oaths and by the less refined methods of torture,” and they “still remembered the hated practices of the Court of Star Chamber, the Court of High Commission, and other inquisitorial agencies which had brought religious and political nonconformists within the penalties of the law by means of their own testimony.” (14) Revolutionary era state constitutions and the U.S. Bill of Rights clearly reflected such concerns. “[T]he Framers drafted the Bill of Rights in part in reaction against the old tribunals—the Star Chamber, the High Commission, the Inquisition—of England and continental Europe,” one scholar notes, adding that—in those prerogative courts or continental European tribunals—“[i]ndividuals had been called to appear, often in secret, and ordered to abjure heretical beliefs or face torture and other punishment.” (15) The Star Chamber—just one of the prerogative courts that became notorious because of its abuses (16)—has been described as “the most prominent . . . prerogative court of general jurisdiction that sat within the King’s Privy Council.” (17)
Unlike continental European civil law systems, (18) England’s common law approach—though once permitting it—renounced torture. (19) Still, English monarchs, through the Privy Council and using their prerogative powers, (20) nonetheless directed that a number of people be tortured, (21) imprisoned in the Tower of London, (22) or harshly punished in certain cases. (23) While England retained horrific methods of executions such as hanging and drawing and quartering, prerogative courts controlled by England’s Privy Council (24) or Church of England bishops also subjected individuals to painful and humiliating corporal punishments. (25) Between 1540 and 1640, England’s Privy Council issued at least eighty-one torture warrants to investigate crimes. (26)
England’s “Glorious Revolution” and the American Revolution are separated by a century of time, yet they both produced written guarantees against excessive governmental action and cruel and unusual punishments. Just as the Star Chamber (1487–1641), (27) the High Commission, (28) and the Inquisition (29) were reviled by early 1640s English parliamentarians (30) and late-eighteenth-century American revolutionaries alike, (31) the English and American prohibitions against excessive bail, excessive fines, and cruel and unusual punishments—though put in place in separate centuries and in different historical circumstances—arose out of serious concerns about abuses of power. Most relevant here, Article 10 of the English Bill of Rights (1689), forbidding “cruel and unusual punishments” (sometimes spelled “cruell and unusuall punishments”), and section 9 of Virginia’s Declaration of Rights (1776) and the third and final clause of the U.S. Constitution’s Eighth Amendment, ratified in 1791 and containing the same prohibition, are plainly linked from a textual standpoint.
There has, however, been a failure to fully understand how the English prohibition against “cruel and unusual punishments”—the American predecessor—came about in the first place. In fact, for generations, jurists and legal historians have failed to uncover and identify the earliest usages of the cruel and unusual punishments terminology—long-forgotten usages that appear in seventeenth-century poetry, books, and remonstrances (a form of protest).
(32) Those earlier usages—first appearing more than 400 years ago—date back to the reign of King James I, and they show up again in King Charles I’s reign in the 1642 Ulster Remonstrances before materializing yet again in the English Declaration of Rights. Context is important, and a better understanding of prerogative courts such as England’s Star Chamber and Ireland’s Court of Castle Chamber (both discussed in this Article) is revealing. “By the late 1620s and 1630s,” one scholar, John Lassiter, writes of that long ago era and England’s once popular
This Article demonstrates that the conventional account of the history and origins of the “cruel and unusual punishments” concept—put in place in the English Bill of Rights after King Charles II’s younger brother, James II, was removed from power after inheriting the throne—is woefully incomplete. More specifically, the Article shows that the concept did not in fact originate with the English Declaration of Rights and its statutory counterpart, the English Bill of Rights (1689), as long assumed by the U.S. Supreme Court, lower federal and state courts, and scores of Eighth Amendment scholars. (37) It turns out that Supreme Court justices, other jurists, and legal scholars have totally missed the actual historical contexts and usage milestones of the cruel and unusual punishments phraseology that showed up long before the 1680s—to wit, in a Venetian history’s index and marginalia and in an English poet’s popular satire, both first published in the 1610s, and in Irish-Catholic remonstrances from Ulster (38) that followed an Irish rising that began in 1641, not long after England’s abolition of the Star Chamber and the High Commission that predated the English Civil War that broke out in 1642. (39)
This Article shows that, contrary to the long-accepted conventional wisdom, the ancient right to be free from cruel and unusual punishments
(40) has far earlier literary and historical roots than the English Declaration of Rights. In particular, the cruel and unusual punishments concept appears in (1) the printed marginalia and index of an early seventeenth-century Venetian history,
The Article discusses this long-forgotten history and its implications for the U.S. Supreme Court’s existing Eighth Amendment jurisprudence, building on my prior scholarship on the U.S. Constitution’s Eighth and Fourteenth Amendments (46) and capital punishment as a torturous, (47) arbitrary and discriminatory, and cruel and unusual punishment. (48) Plainly, the text of the Eighth Amendment, ratified in 1791, was adapted from provisions in the English Bill of Rights (1689) (49) and the Virginia Declaration of Rights (1776), (50) though James Madison chose the stronger “shall not” instead of the hortatory “ought not” for the lead-in to the Eighth Amendment’s “cruel and unusual punishments” prohibition. (51) But there is—as this Article reveals—far more than that to the origin story of the Eighth Amendment’s Cruel and Unusual Punishments Clause that broadly prohibits “cruel and unusual punishments” without identifying any specific exceptions.
Part of the story of the “cruel and unusual punishments” prohibition is well-known, but part of it has long been hiding in plain sight, in long-neglected, somewhat obscure sources jurists and scholars have previously failed to dig up. Each usage of words obviously has its own historical context, though how words in constitutions or statutes are to be interpreted must be decided by living, breathing judges. Whereas the English Bill of Rights was the product of the Revolution of 1688–1689, (52) Virginians adopted their Declaration of Rights in the midst of the American Revolution and the Enlightenment. (53) The latter declaration was drafted by plantation owner George Mason, (54) who, like Thomas Jefferson, (55) had carefully studied English history and believed in natural rights (56) but never freed his own slaves. (57) The story of the “cruel and unusual punishments” concept, though, has a much more nuanced and complicated story—one long predating England’s Revolution of 1688–1689—than the version repeatedly told and presented by jurists and leading historians (i.e., that the “cruel and unusual punishments” language first sprang to life in the 1680s).
This Article—following a deep dive into historical sources—sheds important new light on the true seventeenth-century origins of the cruel and unusual punishments concept. Among other things, this Article demonstrates that the cruel and unusual punishments phraseology, as originally used in the English language sources identified above, referred to
In fact, the U.S. Supreme Court’s existing Eighth Amendment jurisprudence is totally unprincipled, in part because of the lack of diligence and logic in discerning the meaning of, and in then applying, the “cruel and unusual punishments” prohibition. Instead of interpreting the meaning of “cruel” and “unusual,” the cruel and unusual punishments concept has been treated as an accident or fluke of history.
(59) In 1969, one highly influential Eighth Amendment scholar, the late Anthony Granucci (1944–2005),
(60) went so far as to describe the “final phraseology” of the English Declaration of Rights as the product of nothing more than “chance and sloppy draftsmanship,”
(61) with Justice Thurgood Marshall—discussing English history, citing Granucci’s scholarship, and unaware of the material omissions in Granucci’s scholarship—declaring in his concurrence in
This Article shows that the choice of the “cruel and unusual punishments” language in the English Bill of Rights was neither inadvertent nor the product of chance or sloppy drafting. Instead, the “cruel and unusual punishments” language had long been used by English speakers in a variety of contexts to describe both barbarous executions and corporal punishments. That language was first used to refer to barbaric methods of executions such as live burials and the ancient “brazen bull” (a hollow metal bull capable of holding a person, with the metal bull then heated by fire to kill that person at the hands of a tyrant). The language—as explained below—was also used in the 1642 Ulster Remonstrances as a catch-all phrase following, and in clear association with, a listing of excessive penalties and painful corporal punishments (i.e., “heavy fines,” “mulcts,” “censures of pillory,” “stigmatizings”). (65) To this day, the “cruel and unusual” and “cruel or unusual” language is found in state and federal statutes (e.g., Article 55 of the Uniform Code of Military Justice) (66) to similarly refer to various non-lethal corporal punishments. (67)
In approving the constitutionality of capital punishment since
A few points must be recalled as one delves into the history of the “cruel and unusual punishments” prohibition. First, the Tudor and Stuart periods were—as a general matter—full of harsh and extreme punishments, intense conflict between Catholics and Protestants, and heated disputes between Parliament and monarchs. (72) King Henry VIII famously had two of his own wives executed, (73) and nearly three hundred people were burned at the stake during the reign of Henry VIII’s daughter, Queen Mary I, who sought to return the Church of England to Catholicism, infamously becoming known as “Bloody Mary” because of her deadly persecution of Protestants. (74) With respect to the Irish, it was Mary Tudor (1516–1558), Henry VIII’s daughter, who “introduced the idea of a ‘plantation’ in Ireland.” (75) “The Londonderry plantation in Ulster presents a particularly striking example of English exploitation of the Irish,” one account of the extended conflicts between English Protestants and Irish-Catholics points out, adding: “James (Stuart) of Scotland, who became James I of England (ruled 1603–1625) upon the [d]eath of Elizabeth I in 1603, undertook this endeavor. Under James I, the English were to settle 2 million Irish acres. The entire county of Derry was given to the English, and its name subsequently changed to Londonderry.” (76)
Second, the English Declaration of Rights came into existence against the backdrop of centuries of English poetry, literature and history, including the Magna Carta (1215),
(77) with an explosion of literary works published in English in the sixteenth and seventeenth centuries. The Tudor and Stuart periods saw the publication of a wide array of books, plays, literature, and poetry,
(78) with lexicographers such as Robert Cawdrey, John Bullokar, and Henry Cockeram producing early English dictionaries
(79) long before the first printing of Samuel Johnson’s
Third, King Charles I’s enormously unpopular period of “personal rule” (1629-1640),
(85) English-Scottish conflicts known as the Bishops’ Wars (1639–1640),
(86) the 1641 abolition of the Court of Star Chamber and the Court of High Commission,
(87) and the outbreak of an Irish rising (1641–1642)
(88) all preceded the English Civil War (1642–1651)
(89) that led to Charles I’s execution in 1649,
(90) the Interregnum (1649–1660) and the rise of Oliver Cromwell’s Commonwealth of England, Scotland, and Ireland and his protectorate.
(91) The “Long Parliament,” which first met in 1640,
(92) it has been noted, “erupted in unprecedented fury against two decades of belligerent royal policies that had left the nation in disarray,” including with respect to Charles I’s religious policies.
(93) Only in time did the Restoration of 1660 put Charles I’s son, Charles II, on the throne,
(94) though England’s Parliament continued to resist abuses from prerogative courts.
(95) “The 1637 Star Chamber prosecution of Prynne, Burton and Bastwick,” one source observes of the period of Charles I’s personal rule, describing the grotesque corporal punishments inflicted upon William Prynne, Henry Burton and John Bastwick, “is one of the
Fourth, in the late 1670s (a decade before the “Glorious Revolution”), Titus Oates alleged the existence of a conspiracy to kill King Charles II—fabricated charges that implicated many Catholics and Jesuits and that became known as the “Popish Plot.” (97) In 1678, Oates, the clergyman with a checkered past, gave a deposition and swore before a well-known magistrate, Sir Edmund Berry Godfrey, that he had overheard Jesuits hatching a plan to kill Charles II. (98) The magistrate’s body was later found in a ditch with a sword through his body. (99) “To his contemporaries,” one modern commentator notes, “the death of Edmund Godfrey was naturally attributed to Roman Catholics; the ‘villainous papists’ had murdered the Protestant magistrate as part of a wider Popish Plot and were intent upon other malicious actions if they were given the chance.” (100) Although Oates’s story was latter called “a tissue of monstrous lies,” a panic ensued after the magistrate’s murder, (101) and the fabricated “plot” horrifyingly led to fifteen innocent people being convicted and executed, including by the gruesome method of hanging and drawing and quartering. (102)
As described below, the severe punishment of Titus Oates and many others during the Stuart dynasty provided a clear impetus for codifying the bar on “cruel and unusual punishments” in the English Declaration of Rights. The concept of cruel and unusual punishments, though, had far older roots—and the codification of the English legal prohibition was the culmination of a series of historic events and circumstances, many of which long preceded England’s Revolution of 1688–1689. Samuel Johnson’s
Fifth, the “Glorious Revolution”—guaranteeing that no Catholic would ever sit on the throne—came after a long but unsuccessful battle in England’s Parliament, known as the Exclusion Crisis (1679–1681), (104) that sought to exclude King Charles II’s brother, James, from the line of succession. (105) The Exclusion Crisis pitted the Earl of Shaftesbury, “an anti-Catholic ‘country’ politician and the leader of the nascent Whig Party,” against King Charles II and his brother James, the Catholic Duke of York. (106) “The major political aim of the early Whigs,” one academic explains, “was legislation excluding James—whom they saw as embodying absolutism—from the line of succession.” (107) As that academic, William Ortman, writes of Whigs and the pitched political battle that ensued in England: “Their power base was the House of Commons, where they won majorities in three elections held between 1679 and 1681. Charles and James’s supporters, who became known as Tories during this period, fended off exclusionary legislation from their stronghold in the House of Lords.” (108)
Finally, the Revolution of 1688–1689 that produced the English Bill of Rights followed on the heels of much royal intrigue and societal upheaval. That public intrigue and unrest included what became known as the Rye House Plot (1683), (109) the Duke of Monmouth’s ill-fated rebellion (1685) (110) shortly after James became king, and a number of draconian punishments imposed throughout Stuart reign, including in the “Bloody Assizes” and against Titus Oates. (111) The “Glorious Revolution”—as the U.S. Supreme Court has observed—“deposed” King James II in 1688; “cut back on the power of the Crown” as Parliament asserted itself; and “stripped away” the king’s hereditary powers, leading to Parliament adopting the English Declaration of Rights and its statutory equivalent, the English Bill of Rights (1689). (112)
Among other things, the English Bill of Rights rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and “the pretended Power of Dispensing with Laws or the Execution of Laws by Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of late.”
(113) It was a contest of wills with origins dating back as far as the Magna Carta (1215), or Great Charter, when rebellious English barons forced King John to agree to limits on his power in a muddy field at Runnymede.
(114) Among the chapters of the Magna Carta: provisions barring excessive fines.
(115) When James II was overthrown in the Glorious Revolution,” the U.S. Supreme Court emphasized in
Also, linguistic predecessors related to bail, fines, and punishments—the three components addressed in article 10 of the English Bill of Rights (1689) and the U.S. Constitution’s Eighth Amendment (1791)—are found in specific provisions of the Massachusetts Body of Liberties (1641). (119) The first legal code in New England, (120) the Massachusetts Body of Liberties—setting forth the colonists’ “liberties” (121)—was principally drafted for the Massachusetts Bay Colony by the Rev. Nathaniel Ward, a Puritan exile (122) who, in England, had studied and practiced law. (123) As Professor John Witte, Jr. writes of the Massachusetts Bay Colony: “Massachusetts Bay issued its Body of Liberties in 1641, just over a decade after the arrival of the first colonists. The document was drafted by Nathaniel Ward, a distinguished Cambridge-trained lawyer and Heidelberg-trained Calvinist minister.” (124) In explaining Ward’s background, Professor Witte notes: “Ward had come to New England in 1634, with ten years of legal experience as a barrister in England. He had also been a preacher in England but had been removed from his pulpit in 1631 because of his dissenting Calvinist views.” (125)
The Massachusetts Body of Liberties—the product of a request of the General Court of Massachusetts for a draft of laws “agreeable to the word of God” (126)—set forth various legal rights, although it also made many acts punishable by death and referenced corporal punishments. (127) “No mans person,” article 18 of the Massachusetts Body of Liberties provided, “shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” Regarding fines, article 22 of the Body of Liberties read: “No man in any suit or action against an other shall falsely pretend great debts or damages to vex his Adversary, if it shall appeare any doth so, The Court shall have power to set a reasonable fine on his head.” Similarly, article 37 of the Body of Liberties—reflecting the importance of the concept of proportionality—referred to the court’s power to impose “a proportionable fine.” “No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unless his crime be very shamefull, and his course of life vitious and profligate,” article 43—another of nearly one hundred separate articles in the Body of Liberties—reads, with the Body of Liberties citing biblical verses authorizing the punishment of death. (128) “No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty,” article 45 of the Body of Liberties began, with the very next provision—article 46—reading: “For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruell.” (129)
Nathaniel Ward, the drafter of the Massachusetts Body of Liberties, had been admitted to Lincoln’s Inn in 1607. (130) The relevant provisions of the Body of Liberties, as one academic, Celia Rumann, observes, “can be traced back to the writings of Englishman Robert Beale.’” (131) “Sir Robert Beale,” Rumann notes, “had been a member of the High Commission which had been turned into an ecclesiastical court and had used ‘torture to extract confessions.’” (132) The High Commission had been set up “to try certain types of ecclesiastical offenses,” and Beale had resigned “because of its inquisitorial methods and because of his Puritan beliefs.” (133) As Rumann emphasizes: “Beale objected to the use of torture ‘when authorized by the royal prerogative’ and other inquisitorial methods. Later Beale published a manuscript in which, among other things, he condemned the use of torture by the High Commission.” (134)
John Whitgift, the Archbishop of Canterbury from 1583 to 1604 and described by Rumann as “the architect of the High Commission,” did not react well to Beale’s actions, with Whitgift having a “Schedule of Misdemeanors” drawn up against Beale “for condemning such things as the use of the rack as ‘cruel, barbarous, [and] contrary to law.” (135) “Given the influence Beale had on Ward,” Rumann explains, “it appears that Ward’s language, used in the Massachusetts Body of Liberties, was motivated by concerns about torture that was used to extract confessions in the absence of a conviction and bodily punishments that were ‘inhumane Barbarous or cruel.’” (136)
In the late sixteenth century, Sir Robert Beale had invoked the Magna Carta to question the monarchy’s power to inflict cruel punishments.
(137) Beale, an Oxford-educated member of Parliament and a lawyer who opposed torture, had written a manuscript in 1583 that attacked the English crown’s right to punish persons for ecclesiastical offenses. The Clerk of the Privy Council, Beale represented Puritan ministers deprived of their benefices, argued in vain that the use of torture to extract confessions violated the Magna Carta, and in 1592 was banished from the Royal Court. The powerful Archbishop of Canterbury, John Whitgift, explicitly admonished Beale that had he “condemneth (without exception of any cause) the racking of grievous offenders as being cruel, barbarous, contrary to law, and unto the liberty of English subjects.”
(138) A Puritan, Robert Beale—as one academic wrote in the
In the constellation of punishments imposed upon Titus Oates in 1685 by the Court of King’s Bench for perjury, (140) Oates—to the horror of many English Protestants, especially those concerned about absolute royal power and Stuart tyranny—was infamously stripped of his clerical garb and ordered to be imprisoned for life, to be whipped, fined, and to ignominiously stand in the pillory multiple times a year for the rest of his life. (141) “The judges, as they believed, sentenced Oates to be scourged to death,” one leading English historian, Lord Macaulay, once observed, though Oates did not die as some—including, most likely, the Court of King’s Bench judges sentencing him (142)—may have expected. (143) While fines, imprisonment, whipping, and the pillory were, individually, common punishments in seventeenth-century England, the specific punishment (or, more accurately, the defrocking and combination of punishments) imposed upon Oates in the mid-1680s was later seen by members of Parliament as “cruel, barbarous and illegal.” (144)
It is, frankly, not hard to see why, especially when one reads the actual punishments he endured over the course of just one week—and what he was sentenced to suffer in the future. “On Monday,” one history notes in describing the first day of the 1685 punishment inflicted upon Oates, “he had to walk through the Courts of Justice in Westminster Hall wearing a notice describing his offence, before standing in the pillory for an hour, where an estimated crowd of 10,000 people pelted him with rotten eggs.” Oates also reportedly had dead cats thrown at him. (145) “On Tuesday,” that historian’s description continues, “he went through the same treatment but this time at the Royal Exchange.” While, on Wednesday, Oates was then “whipped the mile and a half from Aldgate to Newgate,” just two days later—on Friday—he was similarly “whipped the two miles from Newgate to Tyburn,” ultimately falling unconscious and—at one point—being “dragged on a sled.” Along with being fined 2,000 marks (146) and ordered to be imprisoned for life, “on four occasions each and every year,” historian David Hanrahan summarizes of the public and annual recurring pillorying to be suffered, Oates “was forced to stand for an hour in the pillory at various locations around London.” (147)
When, centuries ago, Americans debated the provisions of the U.S. Constitution and the U.S. Bill of Rights before ratifying them, (148) at least some lawmakers opposed including the “cruel and unusual punishments” prohibition because of its assertedly indefinite meaning, (149) with considerable uncertainty—truth be told—about what exactly “nor cruel and unusual punishments inflicted” meant (150) or might be interpreted to mean in the future. (151) That language in the Eighth Amendment was, plainly, borrowed from the English Bill of Rights (1689) (152) and the Virginia Declaration of Rights (1776). (153) But the language chosen for the Eighth Amendment and revolutionary era state constitutions, whether America’s founders knew all the particular details or not about the origins of the “cruel and unusual punishments” language, had a pedigree stretching back much further than the 1680s. At the very least, America’s founders would have known that the bar on “cruel and unusual punishments” had “ancient” roots, because they were very familiar with the English Bill of Rights and that is what the English Bill of Rights itself recites. (154)
In fact, the legal protections found in the English Bill of Rights had roots predating that act of Parliament. The English common law
(155)—as incorporated into the English Declaration of Rights and then codified in the English Bill of Rights—had long prohibited cruel and unusual punishments as evidenced by that prohibition’s classification by the English as an “ancient” right
(156) in the late 1680s.
(157) It took considerable time for a common law right to be recognized by an English court, although the common law—the very foundation of English law—was tied to custom and meant to be flexible and adaptable. As Theodore F. T. Plucknett, a Professor of Legal History at the University of London, has explained of the history of the common law in a section titled “T
A common law right is a right based on general or local customs rather than written law. These common law rights were rooted in custom or usage, enforced or “discovered” by common law courts, and revealed in reported judicial decisions. According to one nineteenth century treatise on the laws of England, common law rights “receive[d] their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” The custom giving rise to the common law right must be ancient; “[T]he goodness of a custom depends upon its having been used time out of mind . . . time whereof the memory of man runneth not to the contrary.” (159)
Taking stock of the “cruel and unusual punishments” prohibition, American revolutionary Patrick Henry and others—at a distance of many decades from the language’s appearance in the English Bill of Rights as a byproduct of the Revolution of 1688–1689 (160)—forcefully expressed the view, from an eighteenth-century vantage point, that it prohibited barbarous punishments and torture. (161) “The very use of the phrase ‘bill of rights’ in popular parlance to describe the new documents that the Revolutionary American states adopted was an allusion to the English Bill of Rights,” Eighth Amendment scholar Laurence Claus explains of early American history and the founders’ familiarity with the English Bill of Rights. (162)
It is impossible to say what exactly was in the minds of every American framer of revolutionary era state constitutions or the U.S. Bill of Rights. It can be safely asserted, however, that early American lawmakers—without prying too deeply into how the “cruel and unusual punishments” prohibition first arose,
(163) at least beyond their shared understanding from studying English history and reading Sir William Blackstone’s treatise
(164) indicating that the English prohibition arose in response to King James II’s abuses
(165)—mainly wanted the same basic rights as Englishmen.
(166) The legal protection against cruel and unusual punishments was, certainly, one of those rights, as the U.S. Supreme Court itself later confirmed.
(167) “Blackstone’s impact on American jurisprudence cannot be understated,” one scholar writes, observing that—among others—Chief Justice John Marshall, James Wilson, John Jay, Nathaniel Greene, James Kent, and John Adams “subscribed” to Blackstone’s
The prohibition against “cruel and unusual punishments” was first
Some of the history pertaining to how the prohibition against cruel and unusual punishments first came to be codified in England is relatively well-known. That history includes the factual background relating to the “Popish Plot” and Titus Oates, his acts of perjury, and the punishments then inflicted upon him that drew so much criticism in Parliament. (176) In 1685, the Court of King’s Bench infamously ordered that Titus Oates, the disgraced clergyman convicted of perjury, be defrocked, fined 2,000 marks, be “whipped from Aldgate to Newgate” the following Wednesday, be similarly whipped “from Newgate to Tyburn” the following Friday, be pilloried four times annually, and be imprisoned for the remainder of his life. (177) Four years after that court—led by Lord Chief Justice George Jeffreys—ordered those draconian punishments, Oates petitioned Parliament for relief in the wake of the promulgation of the English Declaration of Rights and members of Parliament engaged in an extended debated about his case. (178)
One leading Eighth Amendment scholar, Meghan Ryan, emphasizes that “[t]he more commonly accepted view among scholars today” is that Article 10 of the English Bill of Rights was “drafted to prevent courts from doling out cruel and illegal punishments or severe punishments that are ‘unauthorized by statute and not within the jurisdiction of the court to impose,’” such as occurred during Stuart reign. “Titus Oates,” she writes, “falsely proclaimed under oath that there was a plot to assassinate King Charles II,” further emphasizing that Oates’s lies “caused fifteen innocent people to be convicted and executed.” “[A]fter it was discovered that these undeserved executions were the result of Oates’s perjury,” Professor Ryan explains, summarizing what happened, “Oates was sentenced to a 2,000-mark fine, life imprisonment, whippings, quarterly pillorying, and defrocking.” (179)
The punishment of Titus Oates was—and naturally would have been—front of mind when Parliament drafted the English Declaration of Rights. “Some Whig believers never conceded the falsity of the Popish Plot,” legal historian John Langbein observes, noting that, in England’s Revolution of 1688–1689, “complaints about the severity of Oates’ punishments were among the grievances that led to Article 10 of the Declaration of Rights, proscribing excessive fines and cruel and unusual punishments.” (180) When Oates petitioned Parliament for relief from his sentence, Meghan Ryan points out, “the House of Lords rejected the petition” but “[a] minority of the Lords dissented,” concluding: “the said judgments are barbarous, inhuman, and unchristian”; “there is no precedent to warrant the punishments of whipping and committing to prison for life, for the crime of perjury”; allowing the sentence to stand would “be an encouragement and allowance for giving the like cruel, barbarous, and illegal judgments hereafter”; the “judgments were contrary to law and ancient practice, and therefore erroneous, and ought to be reversed.” (181)
In volume four of his
After noting that other punishments are “merely pecuniary, by stated or discretionary fines,” Blackstone stressed that, “lastly, there are others which consist principally in their ignominy, though most of them are mixed with some degree of corporal pain, and these are inflicted chiefly for such crimes as either arise from indigence or render even opulence disgraceful, such as whipping, hard labor in the house of correction or otherwise, the pillory, the stocks, and the ducking stool.”
(184) Blackstone also discussed the punishment for forgery,
(185) perjury,
(186) affrays,
(187) and other offenses.
(188) In another part of his treatise, Blackstone added: “By the antient law of England, he that maimed any man, whereby he lost any part of his body, was sentenced to lose the like part;
Blackstone, the Oxford scholar, felt strongly that English law—though harsh—was still enlightened compared to the laws of other countries.
(193) “Disgusting as this catalogue may seem,” Blackstone wrote of punishments authorized by English law, “it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe.”
(194) “[I]t is moreover,” Blackstone explained, “one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is
It was after this discussion that Blackstone cited the “cruel and unusual punishments” clause of the English Bill of Rights. “The discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose,” Blackstone first explained, “may seem an exception to this rule.”
(197) “But,” he noted, “the general nature of the punishment,
Prominent constitutional law scholars have long taken note of some of the English history undergirding the Eighth Amendment’s Cruel and Unusual Punishments Clause. “[I]n the late eighteenth century,” Yale Law School professor Akhil Amar writes, “every schoolboy in America knew that the English Bill of Rights’ 1689 ban on excessive bail, excessive fines, and cruel and unusual punishments—a ban repeated virtually verbatim in the Eighth Amendment—arose as a response to the gross misbehavior of the infamous Judge Jeffreys.” (201) “The Founders,” Amar has written, “borrowed the phrase ‘cruel and unusual’ from the celebrated English Bill of Rights of 1689.” “In England,” he explains, “the phrase aimed chiefly to prevent bloodthirsty judges from inflicting savage penalties that were legislatively unauthorized—that is, ‘unusual.’” “If Parliament had previously approved a given punishment for a given crime,” he adds, “that punishment, even if unspeakably inhumane, was not ‘unusual’ within the meaning of the 1689 declaration.” (202)
Article 10 of the English Bill of Rights was plainly designed to prevent a reoccurrence of abuses associated with seventeenth-century Stuart reign. (203) The Stuart era was a period of history in which England’s monarchs frequently abused their power and the judicial system, often using common law and prerogative courts to kill, dismember or maim, oppressively fine, or degrade and humiliate their political and religious opponents through the use of the pillory, branding, and ear cropping. (204) The Stuart kings regularly sparred with Parliament and attempted to rule or raise revenue without it. (205) Some were forced to stand in the pillory with signs over their heads declaring their crimes. One such high-profile figure seen by members of England’s Parliament to have been cruelly and unlawfully punished during Stuart rule: Titus Oates, the English clergyman. (206)
For his acts of perjury in providing false testimony in treason trials of Catholics wrongfully convicted and condemned to death in connection with the concocted “Popish Plot,” Oates was harshly sentenced in 1685 by the Court of King’s Bench, (207) then led by the notoriously cruel and highly volatile Lord Chief Justice George Jeffreys. (208) “By common law,” one historical account notes of that time frame, “felonies were punishable by death, but perjury was a misdemeanor, and the punishment for a misdemeanor could be any punishment short of death ordered by the judges.” (209) With the death penalty off the table for perjury and a discretionary sentence left in the hands of the Court of King’s Bench judges, Oates was—as legal historians have recalled again and again—infamously ordered to be defrocked, fined, imprisoned for life, flogged, and set in the pillory multiple times a year for the rest of his natural life. (210)
Titus Oates’s ordered punishment and the adoption of the English Declaration of Rights occurred in close proximity—and their connection to one another is clear. “Because these events shortly preceded the adoption of the English Declaration of Rights in 1689,” one legal commentator explains of Oates’s sentence and a U.S. Supreme Court opinion authored by Justice Antonin Scalia, “the
Driven by parliamentary and Protestant conflicts with King James II, England’s unpopular Catholic monarch, the Revolution of 1688–1689 was a seminal moment in English history. “In 1688–1689, these conflicts culminated in the Glorious Revolution,” Professor John Stinneford sums up a portion of the relevant English history, making this observation of what preceded the Glorious Revolution (215) that produced the English Declaration of Rights and its cruel and unusual punishments prohibition: “Members of the English aristocracy invited William and Mary to invade England and depose King James II on the ground that the king had violated the rights of English subjects in a variety of ways—including through the imposition of ‘excessive Bayle,’ ‘excessive fynes,’ and ‘illegal and cruell punishments.’” After England’s Parliament offered to recognize William and Mary as king and queen “on the condition that they accept a declaration of rights designed to limit the arbitrary exercise of the monarch’s power,” Stinneford recalls, the landmark English declaration was drafted and later codified by Parliament as the English Bill of Rights (1689) and thus “entrenched the constitutional settlement that followed the overthrow of James II.” (216)
In the wake of the Glorious Revolution, England’s new monarchs, William and Mary, were also crowned in Scotland, with the Scottish Claim of Right (1689) legitimatizing their coronation there.
(217) The Scottish Claim of Right
(218) and the Scottish Parliament’s 1701 “Act for preventing wrongous Imprisonments and undue delayes in Tryals” also addressed the issue of torture
(219) and other abuses of the criminal law by James II (known as James VII in Scotland).
(220) Scotland’s Claim of Right, agreed to by a convention on April 11, 1689, with William and Mary, not being consulted, declared king and queen of Scotland the following day. Thirteen Articles of Grievances, agreed to on April 13, 1689, were also produced by the Scottish convention.
(221) Among the grievances: “That most of the Laws Enacted in the Parliament
When American jurists and scholars recite that the “cruel and unusual punishments” prohibition first originated in the English Declaration of Rights, they have gotten the history wrong by missing consequential prior references. (223) Those references to the cruel and unusual punishments concept can be traced to the reigns of King James I and his son, King Charles I—two key figures in royal English history. James I (1567–1625), known in Scotland as King James VI, was the first Stuart king of England, with his reign in England beginning in 1603 after Queen Elizabeth’s death and ending with his own death in 1625. (224) On April 10, 1606, near the beginning of his reign, James I chartered the Virginia Company of London, granting its proprietors “license to make habitation, plantation, and to deduce a colony of sundry of our people into that part of America, commonly called Virginia . . . not now actually possessed by any Christian prince or people.” (225) After Queen Elizabeth I’s death, (226) the crowns of Scotland, England and Ireland were worn by the same monarch, (227) with King James I (James VI in Scotland) ushering in a new era when he became England’s king. (228)
James I’s son, King Charles I, fought bitterly with Parliament, which sought to curb his royal prerogative, and was ultimately executed in 1649 after his unpopular period of personal rule (1629–1640), (229) violent conflicts in Scotland and Ireland and years of civil war in England, (230) and being put on trial for treason. (231) His own public execution by beheading followed on the heels of the impeachment, attainder, and execution of his two chief advisors, Thomas Wentworth (the 1st Earl of Strafford) (232) and William Laud (the Archbishop of Canterbury). (233) They, like the king himself, had accumulated many enemies over time. (234) Wentworth was executed in 1641 as a result of Parliament’s passage of a bill of attainder, (235) while Laud—the “high church” archbishop—was executed in 1645, (236) also as a result of a bill of attainder. (237)
The trial and execution of Charles I set the stage for the rise of Oliver Cromwell as the Lord Protector of England, Scotland and Ireland—an office he held from 1654 to 1658. After that military dictatorship collapsed after Cromwell’s death, with Oliver Cromwell’s son, Richard, lacking his father’s political skills and lasting less than a year in that high office, the Stuart monarch was restored in 1660, with Charles II assuming the throne. (238) Although Charles I had been executed following his trial, his sons, Charles II and James II, nevertheless thumbed their noses at Parliament and the concept of popular sovereignty. Upon assuming the throne, Charles II—who had, after his father’s execution, vowed revenge upon those responsible for his father’s death (239)—ordered that the bodies of Oliver Cromwell and two of his compatriots be dug up, hanged, and decapitated, and their heads were impaled on spikes and carried through London. (240)
Charles II and James II believed, like their father, in the “divine right of kings,” desiring to exercise absolute power. (241) This ultimately led the English people—through the Revolution of 1688–1689—to seek written legal protections against further monarchical abuses. (242) Among the provisions of the English Bill of Rights as capitalized and spelled in some early English sources: “excessive Baile ought not to be required, nor excessive Fines imposed; nor cruell and unusuall Punishments inflicted.” (243) As one history notes of the English Bill of Rights: “Some of its most important provisions reflected the experience of Charles II and James II’s extensions of the prerogative and their use of the law courts as instruments of political manipulation and vengeance.” (244)
In truth, one cannot possibly understand the cruel and unusual punishments prohibition without wading into the morass of English history, so a recitation of at least a sketch of a bit more of that history is warranted to understand how the prohibition came to be codified into English law. After the Restoration of 1660, King Charles II of the House of Stuart reigned until his death in 1685, (245) with “Whigs” such as the Earl of Shaftesbury and his close associate, physician and political theorist John Locke, (246) having previously sought to exclude James—then the Duke of York—as an heir to the throne, fearing that he would rule as a Catholic tyrant. (247) On the other hand, during the Exclusion Crisis, Charles II and his supporters, known as “Tories,” (248) insisted that Charles II’s younger brother, James, a Catholic convert, should inherit the crown—which is exactly what happened after much intrigue in Parliament and among English aristocrats, including multiple treason trials arising out of the Rye House Plot (1683) that provided the Stuarts with an opportunity and an excuse to silence—indeed, to kill—their harshest critics. (249)
The Rye House Plot—as legal historian John Langbein writes—“resulted in the conviction and execution, among others, of two leading Whig figures, Lord William Russell, their leader, and the political theorist Algernon Sidney.” (250) The Rye House Plot, as Langbein explains, “was a supposed conspiracy among Whig extremists determined to prevent James from acceding to the throne” and involved a plot to assassinate the king. (251) As one source summarizes the end result of the Exclusion Crisis and the Rye House Plot: “The Whigs failed, and James Stuart, Duke of York became King James II in 1685. He governed as a tyrant, just as Locke and Shaftesbury had feared.” (252) After James II and his allies ruthlessly crushed a rebellion in 1685 led by a Presbyterian, James Scott, the 1st Duke of Monmouth, often referred to as Charles II’s “bastard” son, (253) the Revolution of 1688-1689 led by Prince William of Orange—a Dutch stadtholder—ultimately deposed James II and brought Protestant rulers, William and Mary, to the throne. (254)
Eighteenth-century Americans embraced natural law (255) and relied heavily on the application of common-law principles to protect their legal rights. (256) Consequently, the prohibition of cruel and unusual punishments—already characterized by England’s Parliament as an “ancient” right in the late seventeenth century (257)—must be seen through those lens, in addition to the prohibition’s written codification in the English Bill of Rights and, later, the Eighth Amendment. (258) When, in Williamsburg, the leading Virginians of the Revolutionary War era gathered for a convention and adopted the Virginia Declaration of Rights (1776) “in the heat of rebellion against British oppression of the American colonies,” they were—as one legal commentator puts it—espousing “the inherent and natural rights of men, including the right to be free from cruel and unusual punishments” that was, itself, seen as grounded in England’s common law. (259)
At a distance of approximately 250 years, it is unknowable what Virginians collectively thought about their own “cruel and unusual punishments” prohibition, let alone what they believed about the parallel English prohibition put in place in 1689. (260) Of course, what twenty-first-century jurists do with their own admittedly incomplete knowledge of seventeenth-century English history and eighteenth-century American society (261)—and of what lawmakers in those eras meant, or might have meant, by using the “cruel and unusual punishments” language (whether for their generations or future ones) (262)—is, by definition, up to those living, breathing judges to decide and adjudicate in legal cases as they arise. (263)
Whether America’s founders, (264) framers (265) and ratifiers, (266) misinterpreted or misunderstood (or simply gave little thought to) the nature of the English bar on “cruel and unusual punishments” (267) when they adopted revolutionary era declarations of rights and state constitutions (268) and ratified the Eighth Amendment in 1791 is itself unknowable at a distance of more than two centuries, to say nothing about what the broader American public (269) may or may not have thought or known about what the lofty sounding prohibition on “cruel and unusual punishments” meant, if they even gave those familiar words a second thought after seeing them in print. (270) By the time Americans drafted their revolutionary era constitutions and the U.S. Constitution’s Bill of Rights, the prohibition against “cruel and unusual punishments”—as one scholar writes—“was considered to be constitutional boilerplate.” (271)
What is clear is that the legal prohibition—still an integral part of state constitutions and the U.S. Constitution, (272) and which many eighteenth-century Americans in the midst of the Revolutionary War (1775–1783) and its heady aftermath no doubt gave little thought to beyond knowing that it derived from English law, arose out of Stuart abuses, and afforded an important and desired protection against future abuses—must be interpreted in real-world cases and controversies involving prisoners whose very lives may be on the line. (273) And that is so whether American jurists embrace originalism, living constitutionalism, or some blended version of those judicial philosophies. (274) Notably, while Justice Antonin Scalia once offered that an originalist reading of the U.S. Constitution would permit branding or flogging (once common punishments), he also—at least at one time—called himself a “faint-hearted originalist” because he could not conceive of upholding the constitutionality of flogging or hand branding as criminal punishments—and doubted whether any federal judge would do so in the face of an Eighth Amendment challenge. (275)
To truly understand the history of the English and American prohibitions on “cruel and unusual punishments,” one must explore—it turns out—many sources and multiple historical events long pre-dating the Revolution of 1688–1689. In particular, one must study poetry written by George Wither, an English courtier who fought on the side of Parliament in the English Civil War and served on a committee for the sale of the late king’s goods after Charles I’s execution; (276) the nature of natural rights, the English common law, and their ancient roots; abuses of prerogative courts (i.e., England’s Court of Star Chamber and Court of High Commission and Ireland’s Court of Castle Chamber), which used inquisitorial methods and resorted to extraordinarily cruel punishments; the use of a variety of non-lethal corporal punishments, especially as painfully inflicted upon Puritan dissenters in the 1630s by those insisting on religious conformity to Church of England practices; how the king’s subjects frequently expressed their displeasure through petitions and remonstrances, or written protests; the everyday use of the English language in the seventeenth century, with references to the cruel and unusual punishments concept appearing as early as Willliam Shakespeare’s lifetime; and the versatility of the “cruel and unusual punishments” moniker. Each of these subjects is addressed below.
In prior cases, the U.S. Supreme Court and other courts have consistently traced the Eighth Amendment’s origins back to the English Declaration of Rights, codified as the English Bill of Rights in 1689.
(277) “The specific incident giving rise to the provision was the perjury trial of Titus Oates in 1685,” Justice William Brennan wrote of England’s prohibition against “cruel and unusual punishments” in his
The English Bill of Rights codified a number of legal rights, with its “cruel and unusual punishments” prohibition rooted, it turns out, in long-forgotten prior literary sources and England’s common law tradition. Perhaps not surprisingly given its inclusion in that historic document, that legal prohibition has drawn extensive commentary from many quarters over time, especially because of its codification into English and then American law. Along with being debated in both houses of England’s Parliament, the legal prohibition was destined to draw the attention of multiple figures of considerable prominence in legal circles. For instance, the now-little-remembered Irish legal writer Sollom Emlyn (1697-1754) wrote a preface to
For Sollom Emlyn, judges exercising their discretionary sentencing authority had a common-law duty to set reasonable not excessive penalties. “[W]here a court has a power of setting Fines,” Emlyn made clear in his preface, “that must be understood of setting reasonable Fines: ‘an excessive Fine,’ says lord Coke, ‘is against law,’ and so it is declared to be by the Act ‘for declaring the Rights and Liberties of the Subject.’”
(284) In his
There is, certainly, considerable evidence to show that Titus Oates’s ordered punishment helped to inspire the
The U.S. Supreme Court’s reinforcement of the traditional narrative of the history of the cruel and unusual punishments concept has stymied a full understanding of that concept’s origins, even though an understanding of the Titus Oates case is absolutely critical to understanding that concept’s codification in the English Bill of Rights. Although the House of Lords affirmed the judgment against Titus Oates following his conviction for perjury, a minority of peers dissented and “their statement”—as Justice Scalia observed in
The meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause has been especially contentious in American law, (296) with multiple jurists (297) and scholars searching for, and writing about, the “original meaning” of its language. (298) For example, Professor John Stinneford has written that, although “the term ‘unusual’” in the seventeenth and eighteenth centuries “had many of the meanings we currently associate with the term” (i.e., “rare,” “uncommon,” “out of the ordinary”), that word “also had a more specific meaning . . . as a legal term of art: ‘contrary to long usage’ or ‘immemorial usage.’” (299) I have, myself, written extensively about the Eighth Amendment in a prior book (300) and in multiple book chapters (301) and law review articles. (302) For instance, I have studied the concepts of “usual” versus “unusual punishments” in Anglo-American law. (303) Of course, the varied prohibitions against “cruel and unusual punishments,” “cruel or unusual punishments,” or simply “cruel punishments” were included in revolutionary era state constitutions (304) even before the Eighth Amendment’s ratification in 1791. (305)
While the U.S. Supreme Court and modern Eighth Amendment scholars have conventionally traced the Eighth Amendment’s “cruel and unusual punishments” prohibition back no further than the 1680s, (306) those writings have missed the actual first usages of the cruel and unusual punishments language. One scholar, University of San Diego law professor Donald Dripps, has written that “[t]he full story” of the legal prohibition “begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.” (307) In his 2023 article, Professor Dripps ties England’s 1680s “cruel and unusual punishments” prohibition to a concern about not allowing a resurrection of England’s prerogative Court of Star Chamber, which Parliament had abolished in 1641 along with the ecclesiastical Court of High Commission. “[A]lthough the methods of punishments inflicted on Oates—two days of horrific flogging, recurring stands in the pillory, and life imprisonment—were horrific,” Dripps explains, “they were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First U.S. Congress in 1790.” (308) “Sentencing Oates,” Dripps writes of the Court of King’s Bench and its one-time leader, Lord Chief Justice George Jeffreys, “claimed for the King’s Bench all the Star Chamber’s lawless power to determine punishments less than capital.” (309)
Article 10 of the English Bill of Rights, restricting such discretionary authority, “repudiated this attempt to resurrect the Star Chamber,” Dripps concludes, stressing that the First Congress, “responding to Anti-Federalists fears about Congress adopting European-style executions by torture, freighted the ‘cruel and unusual’ language with two additional meanings.” (310) As Dripps, comparing the English and American provisions, explains: “The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion.” (311) “Synthesizing the English original and the later concerns of the American founders,” Dripps writes, “the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.” (312) The U.S. Supreme Court, in what Justice William Brennan once described as the “obvious unconstitutionality of such ancient practices as disembowelling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking on the wheel,” emphasizes that the Eighth Amendment forbids “inhuman and barbarous” methods of execution that inflict “torture or a lingering death.” (313)
At the First Congress, there was only limited debate over the language that became the U.S. Constitution’s Eighth Amendment. (314) At one point Representative William Loughton Smith of South Carolina “objected to the words ‘nor cruel and unusual punishments’” because of his view that “the import” of those words was “too indefinite.” In another instance, Representative Samuel Livermore of New Hampshire offered this perspective of the Eighth Amendment’s text: “The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.” (315) In particular, Representative Livermore offered these public musings on the import of the proposed language:
What is meant by the terms excessive bail? Who are to be judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind. (316)
In spite of these objections, when “[t]he question was put” on the Eighth Amendment’s text in the First Congress, the historical record shows “it was agreed to by a considerable majority.” (317)
In his 1986 Oliver Wendell Holmes, Jr. Lecture, Justice Brennan—examining the Eighth Amendment’s text and discussing the possible intent of its framers—argued that capital punishment is unconstitutional. “The assertion that the Constitution shows that the Framers
Of course, Justice Brennan and Professor Dripps are not alone in having diligently searched for, or intellectually explored, what originalists would consider the Holy Grail: the Eighth Amendment’s original public meaning or purpose. In fact, the Eighth Amendment’s prohibition against “cruel and unusual punishments”—in part because of its unique, centuries-old wording—has been described as “a constitutional enigma.”
(322) Jurists and scholars have long sought to ascertain the meaning of that prohibition,
(323) with the U.S. Supreme Court itself using multiple tests—from its “evolving standards of decency” test to its “deliberate indifference” and “malicious and sadistic” standards—over time to determine if a punishment is an Eighth Amendment violation and constitutes a “cruel and unusual” punishment.
(324) People may draw different lines in distinguishing between cruel versus non-cruel acts and between unusual versus usual ones, but
Although the U.S. Supreme Court has long interpreted the Eighth Amendment to bar barbarous punishments and torture,
(325) the Court has failed to classify capital punishment as an Eighth Amendment violation since backing away from
The cruel and unusual punishments terminology—as the uncovered historical sources in this Article reveal—actually appears in multiple seventeenth-century sources, and many decades earlier than the 1680s, albeit in non-judicial, non-legislative contexts.
(331) Of particular interest, the terminology shows up as early as the second decade of the seventeenth century, including in an index entry in
In “A Table of the principall matters contained in the first volume” of
The unpaginated index’s reference to “A cruell and unusuall punishment” comes in a section of
The Venetian history notes that Massolerio—found to be providing information to the enemy—was then “imprisoned” and “sent to Venice, where being convicted of the crime he was hanged from the highest place of the Palace with a long rope.”
(340) “The same day his brother and two young Priests,” the history added, “were put alive into the ground betwixt the two Columnes their heads downewards: The which punishment being not as yet usuall, did greatly terrifie all men.”
(341) The name of Massolerio is also found in Pietro Giustiniani’s
The two massive granite columns, which sit in Venice’s Piazzetta, with the Doge’s Palace on the left and the Biblioteca Marciana—a public library—on the right as one faces the water, served as a ceremonial entrance to the city but were also used to support a scaffold for executions. “Near the water’s edge, serving as a ceremonial ‘gateway’, are two huge monolithic granite columns brought back to Venice from the ill-fated expedition to Constantinople by Doge Vitale Michiel II and erected here at the end of the 12th century when they were given their Veneto-Byzantine capitals,” Alta Macadam writes in the
Given the use of “not as yet usuall” in the sentence of the Venetian history prepared by Fougasses and translated by Shute, it appears to be the condemned being buried alive between the two granite columns (known as the “Red Columns”),
(346) their heads pointing downward at the public execution site,
(347) to which the “cruell and unusuall punishment” reference in the book’s index relates.
(348) The large and historic red Egyptian granite columns, said to have arrived in Venice in the twelfth century and erected by Nicolo Barattieri (the designer of the first Rialto Bridge), “mark the spot”—one Venice walking tour guide notes—“where criminals were executed, either by hanging, decapitation or being buried alive.”
(349) Indeed, on page 287 of
One source recounts that those sentenced to die in Venice “were condemned to the most excruciating tortures,”
(351) while other sources record that while “[s]traightforward hanging or decapitation were the customary techniques” for public executions, “refinements were available for certain offenders, such as the three traitors who, in 1405, were buried alive,” “head down,” “between the two granite columns on the Molo, as this stretch of the waterfront is called.”
(352) The other two marginal notes for that paragraph of the Venetian history prepared by Fougasses and translated by Shute—also printed in italics, and summarizing how Massolerio the Venetian and Giovanni of Padau were executed—read, respectively, “
Histories of Venice were popular, with the Fougasses title appearing after the English-language version of Cardinal Gasper Contareno’s
The Republic of Venice—long known as
Those two marble columns on the Doge’s Palace, Mary McCarthy’s history,
Naturally, whether a method of execution or a site of execution is usual or unusual depends upon the frequency of its use.
(364)
Many corporal punishments and methods of executions from ancient, medieval, Renaissance, or Enlightenment times would now be categorized as unusual, but in prior centuries, some societies used bizarre punishments or particular modes of execution that were not used at all in other locales or that were considered barbarous, strange, unjust or unusual by other societies. In parts of Europe, burying alive was variously reported to be “a common form” or “not unknown form” of capital punishment in prior centuries,
(367) at least for certain categories of offenders,
(368) though in certain locales, including Venice, that practice was rarely used in comparison to other methods.
(369) “[B]urying alive as a specific method of execution seems to have been but infrequently practised,” George Ryley Scott writes in
England—along with a host of other obscenely cruel punishments—also made use of the practice in Tudor and ancient times.
(371) “In the time of Bracton,” George Crabb writes in
Various locales have utilized various methods of executions—and varying sites for executions—over the centuries. “[F]or public executions,” a Venetian history notes of the two large columns—popularly known as the Columns of San Marco and San Teodoro, and collectively as the “Red Columns” (376)—that still stand along the bustling waterway in Venice, “the usual site was the pavement between the two granite columns on the Molo, as this stretch of the waterfront is called.” As that source explains of the place so many tourists now gather before touring the Doge’s Palace or boarding gondolas or water taxis: “Straightforward hanging or decapitation were the customary techniques, but refinements were available for certain offenders, such as the three traitors who, in 1405, were buried alive here, head down.” (377) “The Piazetta in front of the Piazza was the site for the city’s public executions,” another modern source states, adding of that much-visited locale: “Between the two columns the executioner hanged wrong-doers, or cut their heads off. Bored with the humdrum slaughter, he buried three traitors alive here in 1405, leaving only their legs visible.” (378)
Live burials as punishments appear in various historical accounts. Jon Bondeson’s
Although the U.S. Supreme Court has never cited
Citing precedents and a work of American history, Justice Neil Gorsuch’s opinion for the Court in
In examining eighteenth-century sources in an attempt to divine what America’s founders meant or understood in the Eighth Amendment by “cruel and unusual punishments,” Justice Gorsuch compared English laws with then-existing American practices. “At the time of the framing,” Gorsuch, quoting Sir William Blackstone’s
Citing the definitions of
Notably, the concept of torture is now understood much differently than in the eighteenth century
(392) and the hortatory prohibition of “cruel and unusual punishments” in the English Bill of Rights did not, in and of itself, quell the use of barbarous methods of execution—as least in law. “As William Blackstone made clear to lawyers in the American Founding era,” one Eighth Amendment scholar, Laurence Claus, observes, “the English Bill of Rights did not condemn
Judges are not Ph.D.-trained legal historians, so it is not entirely surprising that errors get made by American judges in recounting the history. “The language in its English origins,” Professor Claus explains, “did not concern vicious methods at all; the notorious punishments that Parliament called cruel and unusual were targeted, novel combinations of wholly accepted methods.”
(399) “Some of the participants in Bonnie Prince Charlie’s eighteenth-century uprising were later drawn and quartered,” Claus writes,
(400) stressing—with citations to nineteenth-century English statutes—that “[f]ormal elimination of these official methods of punishment in Britain had to await the nineteenth century.”
(401) Of course, lawyers and judges are trained to interpret words and phrases—and
The cruel and unusual punishments concept also appeared in the 1610s in lines of satirical verse written by George Wither, then a young English courtier, satirist, and poet.
(403) His book of satire—for which he was imprisoned for a time in the Marshalsea
(404) during King James I’s reign for referencing the king’s “evil counsellors,”
(405) though his book had been officially licensed
(406)—initially appeared in 1611 as
The first edition of
The fact that a reference to “cruel’st and unusual’st punishment” appears in an early seventeenth-century satire—a book read by many in England—puts the origin story of the cruel and unusual punishments concept in a much different light. In
Such was his humour, who, out of desire
To see how Troy burnt when it was on fire,
Caus’d Rome in many a place at once to flame;
And longing to behold from whence he came
Ripp’d up his mother’s womb. So in the height
Was also his, that took so much delight
In seeing men extremely tortured,
That he out of his bounty promised
A large reward to him that could invent
That cruel’st and unusual’st punishment;
Which Phalaris demanding, was therefore
A prominent Jacobean poet and satirist, George Wither sided with Parliament during the English Civil War and became an officer in Oliver Cromwell’s army, (415) selling a family estate at the commencement of the English Civil War in order to “raise a troop of horse for the Parliament.” (416) After the country’s civil war, he became part of a group of Cromwellian poets (417) and still regularly put pen to paper after the Restoration, (418) with interest in Wither’s poetry and writings continuing after his death in 1667. (419) Oliver Cromwell (1599–1658) and, briefly, his son, Richard, led the Commonwealth of England, Scotland, and Ireland, before Richard renounced power, thus ending the Protectorate and leading to the restoration of the monarchy in 1660, with Charles I’s son, Charles II (1630-1685), assuming the throne. (420)
As a “celebrated poet,”
(421) George Wither was known to members of Parliament and—across the Atlantic—to colonial Americans,
(422) with Wither’s
As one twentieth-century source published in Boston notes, Wither’s
Before the Revolution of 1688–1689, William Penn and William Bradford had collaborated on publicizing English liberties. In 1687, William Bradford—then Pennsylvania’s only colonial printer and who had, himself, spent time training as an attorney, making him well versed in England’s common law—had been entrusted by William Penn with printing a lengthy pamphlet about those English liberties.
(431) The booklet,
In an opening section, titled “To the Reader,” one finds these words in William Penn’s booklet on English liberties: “
Invoking Sir John Fortescue and Henry Bracton, William Penn emphasized that “[t]he King of England cannot alter nor change the laws of his realm at his pleasure.”
(438) Calling Bracton “a learned Judge and Law-Author, in the Reign of King Henry the Third,” Penn quoted that treatise writer as saying, “
Because of his literary fame, George Wither—though deceased since 1667—was clearly still a topic of conversation in the period of England’s Revolution of 1688–1689. In 1688, in London, some of Wither’s poetry from 1652 and 1660 was reprinted as a pamphlet titled
In
George Wither’s father, from Hampshire, was “a gentleman of good connexions,” and he initially had sent his son to Magdalene College, Oxford, at age fifteen, only to call him home three years later. As Wither himself later described his father’s plea in verse:
This was a time of rapid growth in legal publishing in England and of the English legal profession itself. “The number of lawyers in Elizabethan and early Stuart England grew sharply, both in the ‘upper branch’ of the profession (the serjeants, (451) benchers, (452) and utter barristers (453) of the Inns of Court) and the ‘lower branch’ (the court officers, clerks, attorneys, and solicitors),” one historical source notes, giving these telling statistics: “Admissions to the Inns of Court rose from about 100 per year in the 1550s to about 300 per year in the 1620s. Between 1570 and 1640, the four Inns matriculated almost 16,000 students and called about 2800 barristers.” Whereas Lincoln’s Inn recorded “164 bar calls in the five decades between 1520 and 1569,” it recorded “628 calls between 1590 and 1639.” During term time, that study’s author, University of Chicago law professor Richard Ross, explains, residents of the Inns of Chancery “mingled with the ‘upper branch’ of the profession and attended the royal courts, developing a sharper sense of the legal arguments current in the capital and an exposure to popular lawbooks.” The number of attorneys practicing before the courts of King’s Bench and Common Pleas was approximately 200 in 1560, but roughly 1,050 by 1606 and 1,750 by 1640. (454)
The Inns of Chancery—as one American court has explained, quoting a source on English law—“‘were designed as places for elementary studies,’ where students ‘learned the nature of original and judicial writs, which were then considered as the first principles of the law.’”
(455) Of the eight Inns of Chancery, the four Inns of Court, and the two Inns of Sergeants, one English history recalled in describing London’s legal education system: “The Colledges of Municipal, or Common-Law Professors and Students, are 14, called still Inns, the old
In England and Wales, those studying the law, precedents, and legal customs organized themselves into Inns of Court—the original fourteen of which gradually coalesced into four: Lincoln’s Inn, Gray’s Inn, Inner Temple, and Middle Temple. “The Inns originally served as hostels and schools for student lawyers in the thirteenth and fourteenth centuries,” one scholar, Nadia Shamsi, explains. “The legal apprentices,” another scholar, James Hart, writes, “lived, ate, and learned the law together.” “Historically, Lincoln’s Inn has had the strongest links to the Courts of Chancery,” English Lord Justice Scott Baker points out.
(459) The library at Lincoln’s Inn is first mentioned in its records in 1471.
(460) “There are,” Charles William Heckethorn wrote in
Each of England’s Inns of Courts has a storied history. “The early history of Lincoln’s Inn as a legal institution is involved in much obscurity,” Heckethorn observed, pointing out of the Inn’s history: “The man to whom it owed its rising celebrity was Sir John Fortescue (b. 1395, d. 1485), one of the benchers, and one of the fathers of English law, who held the Great Seal under Henry VI. Fortescue wrote a work entitled ‘De Laudibus Legum Angliæ,’ in which occurs the first mention of the four Inns of Court, viz., the Inner and Middle Temple, Lincoln’s Inn and Gray’s Inn.” A fifteenth-century “Black Book” of the Inn itself lists Fortescue as one of its governors. A section of Heckethorn’s book, titled “
England has a complex constitutional history, of which the Magna Carta, the Petition of Right, and the English Bill of Rights are major slices. The Petition of Right (1628)—part of a storied English tradition of Parliament petitioning the monarch (464) that included the Millenary Petition of 1603 (465) and King James I’s 1622 proclamation granting “the Right of his subjects to make their immediate Addresses to him by Petition” (466)—has been described as “the first significant modification of the royal prerogative.” (467) “[I]t was James’s refusal to grant leeway to Puritan preachers that set off a migration of frustrated preachers to New England, which did not stop until 1640,” one source recalls. “As early as 1610,” that source adds, “Parliament was protesting the suppression of speech” and Parliament’s Root and Branch Petition of 1640—concerning itself with the dissemination of religious books and the freedom of ministers to preach (468)—contained this grievance: “The restraint of many godly and able men from the ministry, and thrusting out of many congregations their faithful, diligent and powerful ministers, who lived peaceably with them, and did them good, only because they cannot in conscience submit to and maintain the bishops’ needless devices; nay, sometimes for no other cause but for their zeal in preaching or great auditories.” (469)
The Petition of Right reflected a loss of confidence in the monarchy. (470) As the U.S. Supreme Court once put it, the Petition of Right “drew upon centuries of tradition and Magna Carta as a model for the Parliament to issue a plea, or even a demand, that the Crown refrain from certain actions.” As the Supreme Court emphasized of the petition presented by Parliament in the reign of King Charles I following a series of disputes: “The Petition of Right stated four principal grievances: taxation without consent of Parliament; arbitrary imprisonment; quartering or billeting of soldiers; and the imposition of martial law.” (471) But the Petition of Right did not effectively rein in, let alone put a stop to, Stuart abuses, with Charles I—in the wake of the Petition of Right—choosing to disrespect and disregard his subjects and to rule without the aid of Parliament, leading to what has been called the period of “Personal Rule” and to further abuses of power. (472)
Complaints about cruelty and excessive bail and fines were commonplace in 1630s England. “The problem of excessive bail grew, along with the problem of excessive fines, particularly in the 1630s during Charles I’s reign as religious and political dissidents were repressed,” Wendell Bird explains in
In the tumultuous 1630s, Puritans and pamphleteers—as well as Irishmen who faced consequences and judgments of their own in Dublin, Ireland’s Court of Castle Chamber—risked or endured arbitrary punishments and physical mutilation of the kind that befell Dr. Alexander Leighton (1570-1649), a Scottish medical doctor and Puritan preacher, and William Prynne (1600-1669), an English lawyer and author. “The case against Dr. Alexander Leighton in 1630 provides an apt illustration,” one legal historian notes, pointing out that, in 1629, Leighton had published
William Prynne, the English lawyer, was also a fierce opponent of William Laud’s mandated and highly ritualistic religious practices. As Duke University historian William Thomas Laprade writes of Prynne’s first stint in the pillory: “Prynne, whose extravagant pamphlet,
The Star Chamber garnered a notorious reputation in England. “It was a cruel age,” Thomas Barnes, a Professor of History and Law at the University of California at Berkeley wrote in an introduction to William Hudson’s
The critique of the Court of Star Chamber when it was abolished in 1641: its judges had “undertaken to punish where no Law doth warrant and to make Decrees for things having no such authoritie and to inflict heavier punishments then by any Law is warranted.” Such decrees had “by experience beene found to be an intollerable burthen to the subjects and the meanes to introduce an Arbitrary Power and Government.” “The abrupt legislative destruction of the Court of Star Chamber in the summer of 1641,” Nathaniel Earle writes in his Clemson University graduate thesis focused on the court’s history from 1625 to 1641, “is generally understood as a reaction against the perceived abuses of prerogative government during the decade of Charles I’s personal rule.” “The conception of Star Chamber as an ‘extra-legal’ tribunal (or, alternatively, as a legitimate court that had exceeded its jurisdictional mandate),” Earle explains, “emerged from the constitutional debate about the limits of executive authority that played out over the course of the seventeenth century in Parliament, in the press, in the pulpit, in the courts, and on the battlefield.” For instance, after Dr. Alexander Leighton—the Scottish physician and Puritan preacher and pamphleteer—had called for the abolition of episcopacy in
By today’s standards, the punishments ordered by the Court of Star Chamber were clearly torturous in nature. For example, in the 1630s, on the Star Chamber’s orders, Dr. Alexander Leighton and other gentlemen—most notably, William Prynne, John Bastwick, and Henry Burton—were accused by information of seditious libel, ignominiously sentenced to be whipped, and then had their ears nailed to the pillory and cut off. (480) The administration of their punishments—carried out in public to shame, mutilate, and forever maim them—has been recounted by historian Robert Ross (481) and legal historian Daniel Vande Zande. (482) In that era, subjecting someone to the pillory was a relatively common punishment meted out by the Star Chamber, as records of its judgments make clear. (483)
Reverend George Gerrard—present for the infliction of such punishments in 1637 upon William Prynne, John Bastwick, and Henry Burton—reported of what he saw that day, giving this report: “In the palace-yard two pillories were erected, and there the sentence of the Star Chamber against Burton, Bastwick, and Prynne was executed. They stood two hours in the pillory.” “The place was full of people, who cried and howled terribly, especially when Burton was cropped,” Gerrard observed, adding: “Dr. Bastwick was very merry; his wife, Dr. Poe’s daughter, got on a stool and kissed him. His ears being cut off, she called for them, put them in a clean handkerchief, and carried them away with her.” (484) Prynne himself was branded with the letters “S.L.” (for “seditious libeler”) on both cheeks, (485) though in a reference to his nemesis, Archbishop William Laud, he reportedly “preferred to think of it as ‘stigmata Laudis.’” (486) In the end, the barbarous punishments engendered much sympathy for Prynne, Burton and Bastwick and vehement opposition to the Star Chamber’s abuses. (487)
The Court of Star Chamber had its own unique criminal procedures that differed from those of common-law courts—and there was an intimidation factor, too. “The Star Chamber,” one prominent legal historian, Donald Dripps, notes, “did not permit the accusation to be answered without the signatures of two attorneys, which were not to be had because the answers drafted by the defendants might, if endorsed by counsel, expose counsel to prosecution.” Such procedures had dire consequences for many people and engendered much cruelty. “Stripped of the most contrarian matters,” Dripps writes, “the plea in defense was so sparse that the court judged the defendants guilty by confession.”
(488) The punishments inflicted on Prynne, Bastwick, and Burton—prominent members of the professions of law, medicine, and theology—were described in
The punishments meted out by the Star Chamber shaped public sentiment in England—and, many decades later as they were remembered through the lens of history, in the newly formed United States of America as part of the American Revolution. Although it is impossible to get into the minds of America’s founders or the framers of early American state constitutions and the U.S. Constitution, they had studied English history and knew about the Star Chamber, if only through written sources. That knowledge would have materially shaped their understandings of the Eighth Amendment’s text to the extent Americans had Stuart abuses in mind (as they almost certainly did) during the late eighteenth century—a period when America’s leading thinkers were also reading Enlightenment texts. (490) In or about December 1769, Thomas Pownall attempted to formulate general principles of law applicable to the issues in dispute between Britain and her colonies. One of the corollaries he deduced from them: “[T]hat the rights of the subject as declared in the Petition of Right, the act abolishing Star Chamber, the Habeas Corpus Act, the Bill of Rights, etc., extend to the colonists of common right.” (491) Likewise, in a letter to James Madison dated June 21, 1784, John Blair Smith wrote of “Star-chamber tyranny.” (492)
Even centuries later, the Star Chamber remained an infamous court. For example, in
Many suffered at the hands of England’s prerogative courts. John Lilburne (1615–1657), known as “Freeborn John” in London, was just one of many in the seventeenth century who were imprisoned and subjected to highly coercive practices because of his beliefs.
(494) An apprentice to a cloth merchant in London and a Church of England critic, Lilburne—a Puritan “thwarted from studying law at the Inner Temple”
(495) who later led the Leveller movement
(496)—became politically engaged and a disciple of the “Puritan martyrs” William Prynne, John Bastwick, and Henry Burton. In 1637, Lilburne was first hauled before the Court of Star Chamber on a charge of importing seditious books from Holland. Scholar John Rees, in an anthology titled
For refusing to answer the Star Chamber’s questions, John Lilburne—recognized by constitutional scholars and American jurists as a driving force behind the recognition of the privilege against self-incrimination (499)—paid a hefty price. (500) Along with another publisher, Lilburne was sentenced to pay a fine, to be whipped through the streets and pilloried, (501) and to be imprisoned until conforming to the Star Chamber’s procedure and taking the oath. As Rees explains of Lilburne and his stoicism in the face of horrendous abuse: “When he was punished by being tied to the back of a cart and dragged from the Fleet prison to Westminster Yard, beaten 500 times with a three-pronged, knotted leather whip on the way, he remained defiant, even when he was put in the stocks at the end of the ordeal. He was still throwing copies of Bastwick’s pamphlet from his coat and making speeches until his goalers gagged him.” (502)
The Star Chamber oversaw the licensing of prospective publications, but Lilburne—insisting on a privilege against self-incrimination—refused to take the oath
That English history grounds the U.S. Constitution’s Fifth Amendment’s privilege against self-incrimination—as well as other legal rights—is clear.
(509) “Although no records exist that shed light on James Madison’s reasoning when he drafted the language that eventually became the Fifth Amendment self-incrimination clause,” one scholar has written, “the doctrine of
In fact, John Lilburne called the inquisitorial oath
The oath
Imprisoned for two years and fined, whipped, and placed in a pillory after refusing to take the oath three times, Lilburne paid a heavy—though not the ultimate—price for his refusal to cooperate,
(525) as the Star Chamber had no authority to impose a death sentence.
(526) An ardent Puritan, Lilburne—lashed but still alive—petitioned for his release after the so-called “Long Parliament” convened in 1640.
(527) Itself composed principally of Puritans, the Long Parliament obliged, with both houses finding that the Star Chamber had unlawfully sentenced him.
(528) The House of Commons labelled Lilburne’s sentence “illegal and against the liberty of the subject,” and the House of Lords concurred.
(529) While most of the agitation about the oath
The Grand Remonstrance listed exponentially more grievances than the Petition of Right—and in much greater detail. (532) Among other things, the Grand Remonstrance—voted on one paragraph at a time by members of Parliament led by MP John Pym, (533) who had given a rousing speech in the House of Commons in 1640 about the constitutional necessity of frequent sessions of Parliament for providing the king’s subjects with an opportunity to present their petitions (534)—complained that Charles I had disregarded the Petition of Right by unjustly imprisoning people. “The Petition of Right . . . was granted in full Parliament,” paragraph 11 of the Grand Remonstrance pointed out, adding that the Petition of Right had been “made of no use but to show the bold and presumptuous injustice of such ministers as durst break the laws and suppress the liberties of the kingdom, after they had been so solemnly and evidently declared.” (535)
The Grand Remonstrance’s next grievance, in paragraph 12, wrote of the dissolution of “[a]nother Parliament,” and how “the privilege of Parliament” had been “broken” by the imprisonment of “members of the House, detaining them close prisoners for many months together, without the liberty of using books, pen, ink or paper; denying them all the comforts of life, all means of preservation of health, not permitting their wives to come unto them even in the time of their sickness.” “And for the completing of that cruelty,” paragraph 13 of the Grand Remonstrance lamented, “after years spent in such miserable durance, depriving them of the necessary means of spiritual consolation, not suffering them to go abroad to enjoy God’s ordinances in God’s House, or God’s ministers to come to them to minister comfort to them in their private chambers.” “And,” paragraph 14 read, “to keep them still in this oppressed condition, not admitting them to be bailed according to law, yet vexing them with informations in inferior courts, sentencing and fining some of them for matters done in Parliament; and extorting the payment of those fines from them, enforcing others to put in security of good behavior before they could be released.” (536)
One grievance at a time, the Grand Remonstrance methodically laid out the case against Charles I’s absolute rule. “The imprisonment of the rest, which refused to be bound, still continued, which might have been perpetual if necessity had not the last year brought another Parliament to relieve them, of whom one died by the cruelty and harshness of his imprisonment,” paragraph 15 asserted, adding that the death had occurred “notwithstanding the imminent danger of his life did sufficiently appear by the declaration of his physician, and his release, or at least his refreshment, was sought by many humble petitions.” The man’s “blood,” paragraph 15 stressed, “still cries either for vengeance or repentance of those Ministers of State, who have at once obstructed the course both of His Majesty’s justice and mercy.” (537) It was Sir John Eliot, an MP for the county of Cornwall, who was imprisoned for his conduct in Parliament and died of “consumption” in 1632 in the Tower of London—the castle on the north bank of the River Thames in central London. (538)
Along with complaints about unjust imprisonment, harassment and vexation, breach of parliamentary privilege, and denial of bail or unjust bail amounts, the Grand Remonstrance made excessive fines a major focus almost fifty years before Parliament’s adoption of the English Bill of Rights. Paragraph 17 of the Grand Remonstrance complained about “the great sums exacted through the whole kingdom for default of knighthood” that were seen by the House of Commons “to be against all the rules of justice, both in respect of the persons charged, the proportion of the fines demanded, and the absurd and unreasonable manner of their proceedings.” Likewise, paragraph 34 of the Grand Remonstrance, in response to the king’s various monetary extractions, protested: “Great numbers of His Majesty’s subjects for refusing those unlawful charges, have been vexed with long and expensive suits, some fined and censured, others committed to long and hard imprisonments and confinements, to the loss of health in many, of life in some, and others have had their houses broken up, their goods seized, some have been restrained from their lawful callings.” (539)
Whereas paragraph 44 of the Grand Remonstrance complained about “excessive fines,” paragraph 37 emphasized: “The Court of Star Chamber hath abounded in extravagant censures, not only for the maintenance and improvement of monopolies and other unlawful taxes, but for divers other cause where there hath been no offence, or very small, whereby His Majesty’s subjects have been oppressed by grievous fines, imprisonments, stigmatisings, mutilations, whippings, pillories, gags, confinements, banishments . . . .” Paragraph 159 of the Grand Remonstrance also referred to “great fines” imposed by the prerogative Court of Star Chamber, while the next grievance—in paragraph 160—said this about another royal prerogative court, the ecclesiastical High Commission: “The fines of the High Commissioner were in themselves unjust . . . .” (540)
Prior to the Grand Remonstrance, King Charles I had ruled without Parliament for more than ten years, angering his subjects. (541) In 1640, following intense religious discord (542) between the Church of England and Puritans and Scots, (543) Scottish forces invaded England, compelling Charles I to call Parliament into session to raise needed revenue. (544) “On 3 April 1640,” one account summarizes, “Parliament met and immediately made known that it considered the ‘Scottish invasion . . . less important than the invasion of English liberties in the name of Prerogative.’” (545) As that account emphasizes: “Parliament saw the Scottish war and Charles’ need for money as an opportunity to rectify grievances building during the past eleven years of extra-parliamentary rule.” (546)
In a speech to the House of Commons on April 17, 1640, in what became known as the “Short Parliament,” John Pym, the House’s leader, outlined Parliament’s long list of grievances. (547) Among them: “Extrajudicial Judgments and Impositions of the Judges without any cause before them, whereby they have anticipated the judgment which is legal and publik and circumvented one of the parties of just remedies, in that no writ of Error lyes, but only upon the Judicial proceedings.” (548) After Charles I dissolved that Parliament only three weeks after it convened, (549) his effort to fight Scotland without parliamentary sources of revenue “proved disastrous” and “Charles had no choice but to call Parliament again,” resulting in the convening of what became known as the “Long Parliament.” (550) “The Long Parliament,” as one source notes, “was convened in November 1640, under the leadership of John Pym.” “The purpose of Parliament in those days,” that source observes, “was advisory, summoned on an ad hoc basis principally to raise funds, which Charles I needed to fund various wars.” (551)
During its first session (1640–1641), the Long Parliament—now acting with purpose and leverage over the king—took many actions. It impeached the king’s most trusted advisor, Thomas Wentworth, and he was put to death;
(552) enacted the Triennial Act, requiring that Parliament be summoned at least once every three years and restricting the king’s authority to prorogue or dissolve Parliament without the consent of both houses; prohibited certain prerogative powers to raise revenue without the consent of Parliament; and abolished the Court of Star Chamber and the Court of High Commission for Ecclesiastical Causes—prerogative courts known for their many abuses, including horrific corporal punishments and the dreaded and inquisitorial oath
The individual Star Chamber cases drew considerable public attention, and those cases fueled the drive to abolish the prerogative courts. In 1639, the Court of Star Chamber had examined John Lilburne, an opponent of absolute Stuart rule whose last name was also spelled Lilburn but who was popularly known as “Freeborn John.” It had done so on a charge of printing or importing heretical and seditious books, with Lilburne refusing to answer questions “concerning other men, to [e]nsnare me, and to get further matter against me.” The Star Chamber had then ordered that he be whipped and pilloried for refusing to take the oath
John Pym, a leader of Parliament, is said to have “literally risked his life to defend the powers of Parliament and guard against the dangerous enlargement of the King’s power.” (555) With Pym at the apex of his power in the House of Commons, Parliament had a stern reaction to what it viewed as tyrannical and arbitrary rule, though Archbishop Laud—one subject of Parliament’s ire—lived a little longer than the Earl of Strafford. In the seventeenth century, the use of impeachments by Parliament came back into vogue—and like the Earl of Strafford, Archbishop Laud became a target. “In Great Britain,” University of Missouri law professor Frank Bowman writes, “impeachment reemerged from its long dormancy during the reigns of the Stuart kings—King James I (1603-1625), his son Charles I (1625-1649), and his grandson Charles II (1649-1651, 1660-1685).” (556) The end result of many impeachments, sometimes converted into bills of attainder to avoid the need to actually prove the charges: death, imprisonment or a hefty fine. (557)
The mechanism of impeachment had first emerged in England during the Parliament of 1376 when it was put to use as a means of initiating criminal proceedings. Although a set of impeachment procedures had been established by 1399 during Henry IV’s reign, impeachment fell out of use after the mid-fifteenth century, only to be revived and used repeatedly by Parliament in the seventeenth century to an effort to rein in the king’s power. “From 1621 to 1679, Parliament wielded impeachment against numerous high level ministers to the Crown,” one legal commentator writes, noting that those facing impeachment proceedings included the 1st Duke of Buckingham, the Earl of Strafford, Archbishop William Laud, the Earl of Clarendon, and Thomas Osborne, Earl of Danby. (558) “It was Pym also who carried up to the Lords the articles of impeachment against archbishop Laud, a mischievous and cruel prelate,” one mid-nineteenth-century account observes, noting that Pym died before Archbishop Laud was brought to trial. (559) Ultimately, both the Earl of Strafford and Archbishop Laud got beheaded; Strafford in 1641 and Laud in 1645. (560)
After Parliament, in the Earl of Strafford’s case, had resorted to the expedient of a bill of attainder, the king—Charles I—had at first refused to give his assent. When informed of the royal assent later given to that bill, which sealed the earl’s fate, a dejected Thomas Wentworth exclaimed in words drawn from scripture: “Put not your trust in princes, nor in the sons of men!” “In three days he was brought to block, passing to which he stopped under the window of Laud’s prison to receive his blessing,” one history notes, recording of what transpired thereafter: “The prelate raised his hand to pronounce it; but grief choked his utterance, and he fell senseless on the floor. Strafford acted on the scaffold with great dignity and composure. His execution took place in the presence of a vast multitude, who subsequently expressed their joy by illuminations and bonfires (May 12th, 1641).” (561)
Before his own execution took place on January 10, 1645, at age seventy-one, Archbishop William Laud was accused by the House of Commons of having “
In a later printed defense of his conduct as regards the Court of Star Chamber’s June 1637 censure and punishment of Henry Burton, John Bastwick, and William Prynne “for notorious
In attempting to justify the men’s corporal punishments, Laud—accused of orchestrating the cruel treatment at the hands of the Star Chamber
(562)—stressed: “And most certain it is, that howsoever the Times went then, or go now, yet in Queen
As the Archbishop of Canterbury, William Laud was subordinate only to King Charles I in the Church of England’s hierarchy. Laud shared the Earl of Strafford’s unpopular brand of authoritarianism, and he—like the Earl of Strafford—had regularly made use of cruel practices in an effort to get his way. Before Parliament abolished the Courts of Star Chamber and High Commission in 1641, Laud—most infamously—had made use of royal prerogative power to prosecute and punish Willian Prynne, John Bastwick, and Henry Burton for libeling the Church of England’s bishops. (564) “Friday last,” London writer Edward Rossingham wrote of the horrific series of punishments inflicted on June 30, 1637, “Dr. Bastwick, Mr. Burton, and Mr. Prynne stood in the pillory in the palace of Westminster.” As Rossingham’s account recorded, noting the compassion and openly expressed public support for the punished men in the face of Archbishop Laud’s wicked determination to make examples of religious dissenters: “As Dr. Bastwick came from the gate-house towards the palace the light common people strewed herbs and flowers before him, Prynne and he stood upon one scaffold and Mr. Burton upon another by himself. They all three talked to the people.” “After two hours,” that account notes, “the hangman began to cut off their ears.” (565)
The infliction of these corporal punishments—the result of the Star Chamber’s June 14, 1637, joint prosecution of Bastwick, Burton, and Prynne—proved to be highly consequential and a seminal event in English history that would be studied for centuries to come, including by Americans who familiarized themselves with the history.
(566) “Reactions,” historian David Cressy explains in
In the seventeenth century, issues of class played a central role in the way in which the punishments of William Prynne (a lawyer), Henry Burton (a clergyman), and John Bastwick (a physician) were perceived. (570) “The resentment which the Star Chamber sentences on Prynne, Burton, and Bastwick aroused,” historian Christopher Hill points out, “sprang not so much from their savagery as because this savagery was employed against gentlemen, members of the three learned professions.” “Any Justice of the Peace,” Hill notes, “daily imposed sentences of flogging and branding on the lower orders, and tried to get confessions from them by means which he abhorred when used by the prerogative courts against his own class.” Of the common law tradition, Hill emphasizes: “The common law was the law of free men. ‘He that hath no property in his goods,’ said a member of Parliament in 1624, ‘is not free.’” “The gentry were exempted from the servile punishment of flogging,” Hill notes of their customary exemption from such severe and humiliating corporal punishments. “No goods: to be whipped,” Hill stresses by way of contrast of the judgment often imposed upon poor defendants, “was a frequent decision by Justices of the Peace in quarter sessions. (571)
The historian George Macauley Trevelyan gave a very similar explanation of what so upset seventeenth-century English society. As Trevelyan wrote in
Prynne a lawyer, Burton a clergyman, and Bastwick a doctor, had composed and secretly put into circulation violent attacks on the bishops. They were condemned by the Star Chamber to be pilloried, to lose their ears, and to suffer solitary confinement for life. The cruel mangling and branding, which idle crowds watched with cheerful interest when inflicted on cheating tradesmen or sturdy beggars, were on this occasion resented as an indecent outrage on the three liberal professions to which the victims belonged. . . . When the hangman sawed off Prynne’s ears a yell arose to which Charles should have listened at Whitehall . . . The State, too . . . met its Prynne in the more attractive personality of John Lilburne. . . . Six months after Prynne’s sentence, he refused, as a prisoner before the Star Chamber, to take the oath to answer all questions put to him by the court. For this offense, though he was a gentleman born, Lilburn[e] was whipped at the cart’s tail from the Fleet to Palace Yard, pilloried, gagged, and deliberately starved almost to death in prison. Again, men observed with indignation that classes hitherto exempt from corporal punishment were being degraded by a jealous absolutism. (572)
The British and the Irish have long had a fraught and contentious relationship—one that has, on multiple occasions, descended into violence and brutality. British settlements and English confiscations of land in Ireland during the Tudor and Stuart reigns led to bitter disputes and, ultimately, to an Irish rising in 1641. (573) The Tudor kings had expelled Irish natives from their freeholds, and in the reign of Elizabeth I—the last monarch of the House of Tudor—there was overt discrimination against Irish-Catholics and “renewed efforts were made to extirpate the native populations, from the four large counties of Munster included in the Desmond forfeitures, and to plant those counties with English tenants.” (574) “The Tudor effort to Anglicize Ireland was intensified during the long reign of Elizabeth I,” one history notes, adding that “efforts were made to transform Ireland in religion, culture, and politics.” (575) As yet another source observes: “Elizabeth, in an attempt to force the Irish to convert, instituted recusant fees, which were fines, for those not attending Sunday service at the Church of Ireland. These fees were not well received by Irish Catholics.” (576)
In the Stuart dynasty, the oppression of the Irish continued. During James I’s reign, one history recounts, “a more methodical system was pursued, for confiscating the six counties of Ulster included in the O’Neill forfeitures, called the Ulster Plantation, and for planting the greater portion of those counties with British tenants.” (577) “The merciless manner in which these Ulster confiscations were carried out, and subsequent efforts to confiscate other districts of Ireland,” that history notes in discussing the reign of James I and his son and successor, Charles I, “were the proximate causes of the general rebellion in 1641, which afforded a foundation for creating further forfeitures, under the English statute called the ‘Adventurers Act.’” (578)
Although the British presence in Ireland “dates from the era following the Norman Invasion of 1066,” a large number of English Protestants settled in what became known as Northern Ireland as part of what became known as “the Plantation of Ulster.” (579) “For historians,” one account emphasizes, “the defeat of Hugh O’Neill, the Earl of Tyrone, in 1603, and the Flight of the Earls in 1607 mark the end of the native Irish system and the beginning of Ireland’s complete domination by England.” (580) “The famed Flight of the Earls in 1607,” another account observes, “robbed Ulster of its natural aristocracy when Hugh O’Neill, Earl of Tyrone, and Rory O’Donnell, Earl of Tyrconnell, fled to the continent to avoid arrest, cherishing, perhaps, the hope of returning to Ireland with a Spanish army.” (581) As yet another account notes of the Irish response to English settlement: “This colonization was not welcomed by the Irish Catholic community that had previously controlled Northern Ireland or by their fellow Irish further south. In 1641, the Irish revolted under the leadership of Sir Phelim O’Neill and his followers.” (582) As that latter account notes of Irish Catholics: “They were angered by their subjection to English rule, the intolerance of the Protestant Establishment toward Catholicism, and, particularly in Ulster, immigrants’ domination of Irish lands.” (583)
The Irish rising in October 1641 was a product of the times. While King Charles I battled Parliament, with the increasingly unpopular king always desperate for new funds to finance his troops and policies, (584) Irish Catholics—fearing an emboldened Protestant Parliament in England (585)—rebelled, with Catholics killing Protestants and vice versa over the course of the months’ long, bloody rising. In conjunction with the Irish Rebellion of 1641-42, which lasted a relatively short period of time in comparison to the protracted English Civil War, (586) the “cruel and unusual punishments” concept was used in two separate documents: “The heads of the causes which moved the northern Irish, and catholicks of Ireland, to take arms” and “The humble remonstrance of the northern catholicks of Ireland, now in arms.” The first document—which includes the 18-point “heads of the causes”—ends with a reference to “cruel and unusual punishments.” As that document, described and reprinted elsewhere as the 1642 “Remonstrance of Irish of Ulster,” (587) read in paragraph 18:
18. H
In fact, many “infamous punishments,” lengthy imprisonments, and exorbitant fines
(590) were threatened or put to use in Ireland during the Stuart dynasty. Jurors were intimidated,
(591) and there was a use, or credible threats of, the pillory, cutting off ears, boring tongues, and branding foreheads with a hot iron.
(592) The term
Branding, a practice with ancient roots, (594) was a common punishment centuries ago, (595) including for the enslaved and various categories of offenders. (596) Thieves were branded with a “T”; blasphemers with a “B”; rogues with an “R”; and adulterers with an “A.” As one source notes: “Branding served primarily as a means of public stigmatization or shaming of the accused. The branding on the forehead or other parts of the face was an especially vivid warning to others of the offender’s previous behavior.” (597) One scholar notes that offenders “would commonly have the first letter of the offense branded onto his forehead, cheek, or hand” and that, at one time, “[t]estimonial crimes, such as blasphemy and perjury, were punishable by piercing the offender’s tongue.” As that scholar emphasized of the history of the Anglo-American practice:
The practice of branding survived in England until at least 1699; therefore, the practice of branding was also adopted by the American colonies. In some colonies, branding was replaced with requiring offenders to conspicuously wear a badge or a sewn letter indicating the crime that was committed. Under the East Jersey Codes of 1668 and 1675, first convictions for burglary were punishable by the branding of a “T” on the hand, and second convictions for the same offense were punishable by the branding of an “R” on the forehead of the offender. The Maryland colony branded the letter “B” on the forehead of convicted blasphemers, and adulteresses were required to wear the “scarlet letter” in many New England colonies. The letter “A” sewn to the adulterer’s clothing was common, but some victims were branded with the letter. (598)
Among other things, a person subjected to the pillory, whipping, or stigmatizing could be challenged if called to jury service. (599)
The second document—the 1642 petition “To the king’s most excellent majesty” titled “The humble remonstrance of the northern catholicks of Ireland, now in arms”—also contained a similar reference to “cruel and unusual punishments.” (600) As that petition, addressed to “Most gracious and dread sovereign,” (601) read in point “19”:
19. We cannot but with much sorrow represent to your Royal Majesty, how that the natives in the province of Ulster, and other the late Plantations made by the English here, were by force expelled out of their native seats and ancient possessions, without just grounds; and many of the principal gentlemen who served the Crown in the wars of Queen Elizabeth, and were the principal means of the overthrow of the late Earl of Tyrone and his adherents, were for their service bereaved likewise of their whole estates, and confined to perpetual imprisonment in the Tower of London; and that all the natives, as well in Ulster as in other the planted territories in this land, were by publick direction of your State here disarmed, of purpose to expose them to the massacre of the Protestant Plantators their adversaries, who were furnished with arms, and were tied by the condition of that their Plantation, to maintain always armed men on their lands; and upon that advantage destroyed many thousands of them by martial law, without any colour of justice; and likewise by false verdicts of Protestant juries, who were drawn thereunto, either by corruption of the state here, and chiefly of Sir William Parsons, one of your Majesty’s Justices of this realm, upon promise of giving the said juries part of those lands for which they were to give their verdict on your Majesty’s behalf, or some other reward; or else by the violent pressing and threats of your judges here in their circuits, or by heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments. (602)
Part of the cruelty to which the two remonstrances of the Irish of Ulster referred related to efforts by English monarchs and their representatives to seize valuable lands in Ireland. Sir William Parsons, the surveyor-general of Ireland, was put in charge of “a commission for the discovery of defective titles” (603) and reportedly used “vexatious pleadings, questionable suits and partisan manipulations of his office to amass a great estate.” As Jon Crawford—a legal historian who has carefully studied Irish history and Ireland’s Court of Castle Chamber—writes: “Involved in the plantations of Ulster, Leitrim, Longford and Wexford, Parsons had succeeded his uncle, Sir Geoffrey Fenton, as surveyor-general in 1602. He became a notoriously unscrupulous master of the new court of wards in 1622 and was made an Irish councilor in 1623.” “Though he was made a baronet and became lord justice in 1640,” Crawford adds, “Parsons retired to England in 1648 amid accusations that he did much to stimulate the Irish rebellion.” (604)
The Court of Castle Chamber was used by the English to oppress Roman Catholics in Ireland.
(605) On October 23, 1641, as the Irish rising began, Sir William Parsons and another man, Sir John Borlase, issued a proclamation blaming the rising on “some evil effected Irish papists.”
(606) However, Parsons was singled out by Irish Catholics as one of the causes of the Irish rising. Indeed, in
The Irish had lodged multiple grievances before the October 1641 Irish rising. In State Papers relating to Ireland, one finds this entry for July 16, 1641, from Whitehall: “The King, having several times heard the Committee of the Irish Parliament and being ready to grant their petitions, so far as ‘could well stand with the service of His Majesty and the present constitution of that kingdom or with the nature of the things desired by them’ has this day ordered that Sir Dudley Carleton, Kt., collect and write out the grievances and the King’s answers, and enter both in the Register of the Acts of the Council.” (608) Among the grievances and Charles I’s replies: (1) “The High Commission Court should be abolished, and the ecclesiastical proceedings be left to the ordinary judicature in the sever dioceses.” The king’s answer: “The Court shall be suspended during the King’s pleasure.” (609) (2) “An Act should be passed forbidding any juror to be bound to the Castle Chamber, or to be there in any sort questioned, excepting corruption be proved against them. Juries shall not be compelled to respect the evidence of notoriously bad characters.” The king’s evasive answer: the Court of Castle Chamber “shall be regulated” on the English model. (610)
Prior to the October 1641 Irish rising, the Irish Commons had also submitted to the Irish Lords a series of questions relating to “
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The idea of avoiding excessive punishments thus dated back many centuries, long before the formation of the Queries in Ireland. “The English history of the prohibition on excessive fines is based on the principle of
The 1641 Queries “placed the Irish council immediately on the defensive,” historian Jon Crawford writes of the Irish Privy Council, noting that “both Protestant and Catholic members of the parliament” supported the Queries even as “Bramhall and Bolton penned defences of their actions in the Irish council and warned that the replacement of the lord chancellor as speaker would threaten the stability of the kingdom as well as the lawful proceedings of parliament.” “The delay of the Irish judges prompted the commons to submit the Queries to the English parliament for a ruling on the points of law,” Crawford explains, observing that Patrick Darcy later emphasized in a speech in June 1641: “Ireland is annexed to the crown of England, and governed by the laws of England.” (620) The third query, or interrogatory, Crawford writes, “was the vital one for the continued existence of the conciliar court; the fourth query—asking the same question of the chief governor acting alone—suggested “that Strafford arrogated to himself the judicial power of the council board”; and the queries that followed demanded to know the legal authority for grants of monopolies and the legitimacy of Ireland’s lord deputy—as Crawford puts it—“to fine, imprison, pillory or mutilate those who violated the regulation of monopolies.” The Queries, Crawford notes, “placed the Irish judges in a hopeless quandary, since the lord lieutenant was now impeached, the lord deputy had recently died, the lords justices were personally compromised and the judges themselves sat on the very tribunals which were now under attack.” (621)
Before the Irish judges ultimately offered “timid responses” to the Queries in August 1641, historian Jon Crawford explains, “the Irish committee of the privy council, writing on 11 May 1641, replied to the Queries by simply restating the judicial boundaries which delineated the star chamber in England and required castle chamber to conform to them”; the commons sought from the lords an answer to the Queries on May 12th, the day Thomas Wentworth, the Earl of Strafford, was executed at the age of 48 on Tower Hill; the Irish Parliament was prorogued as authorities played for more time; and after Wentworth’s execution, “Charles I proceeded to address the Irish grievances by his own authority, rather than that of parliament.” “Sitting with twelve members of the privy council on 16 July 1641,” Crawford observes, “the king ordered the secretary of state, Dudley Carleton, to enter the royal answers in the register of the council and to prepare letters to be given to the Irish parliament.” (622) On August 19, 1641, in a communication to Edward Littleton (appointed Lord Keeper of the Great Seal of England after the previous keeper, John Finch, fled into exile), Thomas Tempest—the Attorney General for Ireland—reported:
The Commons asked the Lords to require the Judges to answer certain questions, and when the answers given were not satisfactory to the Commons, that House drew up answers on points of law to its own questions. I send you questions and answers. When the Commons’ answer came to be voted on by the Lords, the Judges were absent on circuit, and I (being present by virtue of his Majesty’s writ) asked to speak. I reminded their Lordships of Lord Chancellor Egerton’s speech on the question of the
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Eventually, the handling of, and responses to, the Queries, became moot as the Irish rising began in October 1641 and all the violence took the oxygen away from those making legal arguments. “[T]he Irish Rebellion in October 1641,” Crawford observes, brought “a sudden end to the relevance of the Queries and the opportunity to resolve the central issues of prerogative law in relation to common law principles.” (626) “On 22 October 1641,” Crawford notes, “the rebellion in Ulster by Phelim O’Neill and the arrest of conspirators in Dublin by the lords justices created a military emergency which made the return of normal judicial routine impossible.” As Crawford adds: “Fighting quickly drew into the conflict all the Irish counties, and outrageous military excesses widened the gap between adversaries and made negotiations more difficult, although every side in the deepening civil war claimed to be fighting for the crown.” (627) The “targeting” of the Court of Castle Chamber by the Queries, Crawford concludes in retrospect of that prerogative court, “is a remarkable, even modern, example of legislative reform posing as interrogation.” “Without claiming that the court was inherently illegitimate,” he notes, the Queries served the purpose of showing that “the tribunal had become a rogue carnivore, tearing ruthlessly at the social fabric and undermining the faith and trust of the king’s subjects in his law.” (628)
In the decade prior to the Irish rising of 1641, the Court of Castle Chamber imposed draconian sentences. Indeed, chapter ten of Jon Crawford’s book is aptly titled “The Menace of Judicial Despotism: The Court of Castle Chamber, 1629 to 1641.” The court continued ordering the use of the pillory during this period, with one man, Patrick O’Mulvaney, convicted of slandering members of the Irish nobility in the early 1630s and ordered to be whipped and pilloried and imprisoned for life, and a sheriff, James McCarton, found guilty of extortion, fined £200, and ordered to be pilloried in Dublin and Downpatrick in 1631. Much of the period covered by chapter ten of Crawford’s book coincided with Thomas Wentworth’s stint as Ireland’s lord deputy from 1632 to 1640, with Wentworth recalled to England in the late 1630s, then impeached in 1640 before being put on trial and executed the following year as a result of a bill of attainder. (629) One historical account notes that from January until March of 1641, the members of the Irish Parliament “were busy co-operating with the Commons of England in regard to the Earl of Strafford’s trial.” (630)
During his tenure as lord deputy, Wentworth used the Court of Castle Chamber—as Crawford writes—“as a threat to his adversaries, intimidating Lord Wilmot through bills in castle chamber and exchequer so that he would agree to transfer his interest in the castle of Athlone to the crown,” and by threatening “a heavy fine and imprisonment” against “the former lord chief justice, the wealthy earl of Cork” that led to “the humiliating capitulation of the earl prior to a full hearing of his cause.” Fines and imprisonment ordered by the Court of Castle Chamber—or the threat thereof—were also used to coerce jurors, with the court also handling ecclesiastical matters. “The famously extra-legal machinations of Wentworth as lord deputy of Ireland were prefigured in his multiple star chamber cases in England,” Crawford writes, noting how, in England, the “cunning Wentworth” had commenced an action against his Yorkshire neighbor, David Foulis, for “scandalous words” that resulted in Foulis being fined £1,000 and the attachment of his lands for payment. (631)
In those contentious, prejudice-filled times, prerogative courts such as England’s Star Chamber and Ireland’s Court of Castle Chamber were thus powerful tools of oppression. Thomas Wentworth—King Charles I’s chosen Lord Deputy of Ireland, and later known as the Earl of Strafford—had nearly “complete control of the Court of Castle Chamber” by the beginning of 1636. (632) “Without control of the Court of Castle Chamber,” historian Hugh Kearney explains, “it is very doubtful whether Wentworth would have been able to force through his policies so effectively and so swiftly.” (633) Noting that Wentworth “depended on it to deal with any tendency towards opposition which he found in important quarters,” Kearney writes: “Resistance to the plantation of Galway was crushed by the imposition of heavy fines and the imprisonment of the Galway jury on the grounds of conspiracy.” (634)
The Court of Castle Chamber was “used to enforce proclamations” and to punish the offence of “conspiracy,” and those threatened included Sir Vincent Gookin and Viscount Wilmot, former vice-president of Connacht. (635) “Other references in the State papers provide examples of heavy fines and imprisonment being inflicted,” Kearney stresses, adding: “Perhaps the most important intervention of the court in Wentworth’s later years was in Ulster where it inflicted heavy fines and life imprisonment upon a group which refused to take an oath denouncing the Scottish National League and Covenant.” (636) “The resentment which it aroused was concealed until after Wentworth’s fall from power,” Kearney notes of the Court of Castle Chamber, “but even then it was difficult to attack the legal position of the court directly and the opposition groups in the 1640 parliament had to content themselves with asking by what law were jurors sentenced to great fines, pillories, loss of ears, being bored through the tongue, branding and similar punishments.” (637)
The use of the cruel and unusual punishments terminology in the 1642 Ulster Remonstrances in association with various non-lethal corporal punishments is significant, because it makes clear that such corporal punishments—even decades before the English Bill of Rights—were plainly seen as qualifying as cruel and unusual ones. Indeed, a straightforward application of the interpretive canon
The
Suppose, for example, an invitation to a party says the menu will consist of “hamburgers, hot dogs, and other like food.” Under common usage, we expect “other like food” to be defined with reference to the foods listed. Hamburgers and hot dogs are casual foods, inexpensive, and easy to prepare. Because they “all belong to an obvious and readily identifiable genus”, we expect that “the speaker or writer has that category in mind for the entire passage.” Given the invitation’s list of specified foods, it would come as little surprise if the host also served baked beans and potato salad. But no one would expect the menu to include lobster thermidor or pheasant under glass. (648)
The “cruel and unusual punishments” moniker was part of common parlance long before the drafting of the English Declaration of Rights and its statutory counterpart, the English Bill of Rights. The prohibition against “cruel and unusual punishments,” in fact, was already considered to be an “ancient” right by the late 1680s when Parliament adopted the English Bill of Rights and codified that common law right (649) in writing, through legislation, for the first time. When early Americans, in state constitutions, adopted their own prohibitions against “cruel and unusual,” “cruel or unusual,” or simply “cruel” punishments, and when they, in 1791, through a national ratification process, codified the prohibition against “cruel and unusual punishments” in the U.S. Constitution’s Eighth Amendment, they obviously did so against the backdrop of English history, the prohibition’s centuries-old linguistic and common-law origins, (650) an aversion to civil law-style torture, (651) and—it must not be forgotten—when slavery and a whole host of dreadful punishments (e.g., hanging, the pillory, and whipping) were still in use. (652)
America’s founders—many of them lawyers well versed in England’s common law system (653) and who had a clear aversion to civil law procedures and arbitrariness (654)—would, naturally, have fully expected the common law to evolve. (655) As a result, contrary to the view of originalists that the Eighth Amendment’s “cruel and unusual punishments” prohibition had a “fixed” meaning (656) or should be frozen in time in terms of what it should be interpreted to forbid, (657) there is every logical reason to believe that the founders fully expected a common law concept like the prohibition against cruel and unusual punishments to gradually evolve over time, just like other common-law rules do. (658) The comments and expressed fears of Representative Samuel Livermore in the debate at the First Congress, if nothing else, make that quite clear, with Livermore expressly contemplating that the Eighth Amendment’s language might one day be interpreted to bar both corporal punishments and capital punishment. (659)
In constitutional interpretation, judges have an important role to play—and modern judges should not shirk that weighty responsibility by trying to divine what eighteenth-century American lawmakers or seventeenth-century British subjects or eighteenth-century U.S. citizens thought about antiquated punishments. Jurists and scholars have long debated the death penalty’s constitutionality,
(660) but it is now plainly time—using reason and logic, and to protect fundamental human rights—to legally classify the death penalty under the rubric of torture because of its inherent characteristics.
(661) Indeed, in the debate over the Eighth Amendment’s text at the First Congress, Representative Samuel Livermore made these specific comments: “What is understood by excessive fines? It lies with the court to determine.”
(662) In other words, judges must decide legal controversies and disputes using their—don’t stop the presses—
And so it goes when it comes to determining the meaning of “cruel and unusual punishments.” Comparing seventeenth- and eighteenth-century thought with twenty-first-century thought is like comparing apples and oranges or, perhaps more aptly, covered wagons and jet airplanes or quill pens and content created through Artificial Intelligence; they are altogether different, with the founding period occurring centuries before the world awakened to the concept of universal human rights and the horrors of concentration camps and an array of cruel and torturous acts—whether brought to light with respect to Nazi atrocities, the Holocaust, and World War II, or more recently by human rights NGOs such as Amnesty International and Human Rights Watch.
Anyone who studies history knows that laws and practices change over time. Representative Livermore himself commented on what became the Eighth Amendment’s Cruel and Unusual Punishments Clause and how it might be interpreted in the future,
(663) with Justice William Brennan pointing out in
When the death penalty’s objective characteristics are considered, capital punishment should easily—and immediately—be declared unconstitutional under the U.S. Constitution’s Eighth Amendment. In reality, America’s death penalty has
America’s founders, in line with the English common law’s then-existing condemnation of torture, repeatedly renounced
In the late eighteenth century, America’s founders—blinded by tradition and societal habits of the past, with many founders still enslaving fellow human beings (674) and grotesquely exploiting their labor, often through the use of the lash (675)—did not classify capital punishment as either “cruel and unusual” or torturous. In essence, at a time when the concept of torture was under-conceptualized, (676) they viewed capital punishment and torture in completely separate legal silos and did not recognize the torturous nature of credible death threats in the context of punishment. (677) This was a time—as noted above—when punishments were meted out very differently depending on one’s social status or class, just as it was largely aristocrats and elites—the upper class—who fought duels in England and America in prior centuries. (678)
While the U.S. Constitution’s Eighth Amendment broadly—indeed, absolutely—forbids “cruel and unusual punishments,” (679) the Civil Right Act of 1866, passed by Congress after the Civil War, required “like punishment, pains, and penalties” regardless of race. (680) The U.S. Constitution’s Fourteenth Amendment, ratified in 1868, was in fact adopted in part to ensure the constitutionality of the Civil Rights Act of 1866, with the Fourteenth Amendment guaranteeing “equal protection of the laws.” (681) In light of the Constitution’s Eighth and Fourteenth Amendments and the terms of the Civil Rights Act of 1866, any punishment that is inflicted arbitrarily, discriminatory, or in violation of a universal human right (e.g., the right to be free from cruelty, discrimination, or torture) must be seen as “unusual” as a matter of law within the meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause and equivalent provisions of state constitutions. (682)
As this Article has shown, the concept of cruel and unusual punishments first arose out of common English usage and the prohibition became part of England’s common law before being codified in the English Bill of Rights, early American state constitutions, and the U.S. Bill of Rights. If the general prohibition against “cruel and unusual punishments” is to have any consequential meaning in modern life, it cannot be read in a “fixed” or static fashion by the U.S. Supreme Court to only prohibit the antiquated and extraordinarily barbarous methods of execution once used in England. Indeed, such punishments had, by the late eighteenth century, already fallen into disuse in the newly formed United States of America. A methodology of interpreting the Eighth and Fourteenth Amendments that only bars incredibly hideous
A principled reading of the Eighth Amendment’s Cruel and Unusual Punishments Clause should never permit the use of capital charges, death sentences, or death warrants that inflict severe pain or suffering, whether physical or mental, on someone. The use of state-sanctioned executions unnecessarily ends the lives of already incarcerated offenders after they and their loved ones have been subjected to severe torment, by way of credible death threats, before those executions are carried out. It cannot be disputed that the commencement of capital prosecutions, the imposition of death sentences, and the scheduling of executions via death warrants are intentional acts. When judged objectively, they constitute official, highly credible threats of death that plainly inflict, at a minimum, impermissible psychological torture, with botched executions often leading to excruciating physical pain, too. As any execution approaches, the threat of death inevitably becomes imminent. American death row inmates, if not exonerated (as 200 have been in America since the 1970s), (683) now spend, on average, more than twenty years on death row between sentencing and execution, (684) thus aggravating the cruel and torturous nature of their years of confinement as they live under highly credible, continuous threats of death. (685)
While credible death threats, all by themselves, are cruel and torturous in nature, the prolonged periods of time inmates spend on death row grotesquely aggravates their severity.
(686) While the death penalty is the “ultimate sanction,” lesser punishments can—and already do—qualify as cruel and unusual punishments. Indeed, the cruel and unusual punishments terminology—inherited from England and long in use in America—became so prevalent and deeply ingrained in American life and everyday usage in prior centuries and decades that it found its way into multiple legislative enactments. To this day, an existing federal statute passed by Congress protects U.S. seamen from “cruel and unusual punishment”
(687)—a phrase equated in the statute itself with corporal punishments
Titled “Cruelty to seamen,” that federal statute subjects any “master or officer of a vessel of the United States” to fines or imprisonment of up to five years if such person “flogs, beats, wounds, or without justifiable cause, imprisons any of the crew of such vessel, or withholds from them suitable food and nourishment, or inflicts upon them any corporal
While capital punishment has long been considered a permissible or “lawful sanction”
(692) and, in effect, been misclassified
The whole project of “originalism” is fatally flawed and a fool’s errand because it looks to a time when slavery was still in use, when women and minorities endured systematic discrimination and oppression, and when punishments such as branding, the pillory, and the lash were still in use. (698) The judicial philosophy of originalism must be rejected, and the “cruel and unusual punishments” moniker—used in the past to refer to both methods of execution and non-lethal corporal punishments—should be applied and read in the twenty-first century to bar state-sanctioned killing. Capital punishment should be outlawed by the U.S. Constitution’s Eighth and Fourteenth Amendments just as the “cruel and unusual punishments” language has already been read to prohibit cruel conditions of confinement, sadistic threats of death, and non-lethal corporal punishments such as the gratuitous beating or lashing of prisoners. (699) “Seeking out the ‘original intent’ of the First Congress is hardly a useful quest,” Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit once emphasized, pointing out how Justice William Brennan—a strong advocate for human dignity—used the Eighth Amendment’s unique history to make the point that the death penalty should be declared unconstitutional. (700)
At bottom, capital charges, death sentences, and death warrants are credible threats of death backed by enormous state power. With a mock or simulated execution already considered to be psychological torture, the Eighth Amendment—long interpreted to bar torture—must be interpreted to prohibit both physical and mental forms of torture and, in particular, to outlaw capital punishment, a lethal sanction. (701) The death penalty bears all the indicia and characteristics of a cruel and unusual, indeed an arbitrary, capricious, discriminatory and torturous, practice. (702) As the writer Albert Camus once wrote of the extreme cruelty and inhumanity of capital punishment:
Many laws consider a premeditated crime more serious than a crime of pure violence. But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life. (703)
Harmelin v. Michigan, 501 U.S. 957, 966 (1991).
Gregg v. Georgia, 428 U.S. 153, 169–70 (1976) (citing Anthony F. Granucci,
John F. Stinneford,
John D. Bessler,
In 1583, John Whitgift, Archbishop of Canterbury, turned the High Commission into a permanent ecclesiastical court, and the Commission began to use torture to extract confessions from persons suspected of various offenses. Sir Robert Beale protested that cruel and barbarous torture violated Magna Carta, but his protests were made in vain.
Eric M. Freedman,
State of New Jersey v. State of Delaware, 291 U.S. 361, 369 (1934).
Consumer Fin. Prot. Bureau v. Community Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 428 (2024).
Feldman v. United States, 322 U.S. 487, 499 (1944) (Black, J., dissenting);
Diane Marie Amann,
English monarchs embraced prerogative courts because of the control they had over them, although they eventually met resistance from Parliament and supporters of the common law.
Note, By the time colonists touched down in Jamestown . . . the Crown was waging a sustained campaign against judicial independence. For one, the Tudors and Stuarts increasingly made use of a system of tribunals outside of the regular common law courts and within the Executive. The Star Chamber was the most prominent—a prerogative court of general jurisdiction that sat within the King’s Privy Council. Unlike ordinary common law courts, the Chamber “existed to defend the crown’s actions under the royal prerogative” and, critically, because it “existed solely by the King’s authority, the common perception was that no method existed by which to challenge the King’s actions.” As you might expect, this brand of executive branch adjudication quickly became synonymous across the empire with political oppression.
Stephen C. Thaman, Miranda
Morris Ploscowe, Torture was used not alone in the Star Chamber, but “as a matter of course in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law besides the prerogative of the Sovereign.” Although the use of torture was, therefore, an extraordinary proceeding which only the extraordinary power of the Crown could justify, it could only be applied by command of the King or by the King’s Council. But no specific quantum of proof was required for it as on the Continent. Nor was there any limitation as in the French law on the number of times torture could be applied. The accused was therefore delivered to the tender mercies of the Crown.
Martin C. Carlson,
Over the centuries, the Tower of London was used to confine many opponents of the monarchy and to torture those suspected of crimes. In England the earliest authoritative records regarding the State use of torture appear in the Privy Council registers in the year 1540 and extends, with some gaps in the reports, for a hundred years. The Crown issued less than one hundred official warrants, an amazingly low figure relative to the number of felony investigations in any given year. This low statistic demonstrates that torture was predominantly used for interrogation and not for punishment. The 1597 case of Jesuit priest John Gerard typifies the goal of torture. The Crown’s warrant in Gerard’s case directed that he be tortured in the Tower of London by means of “the manacles” and other “such torture” as necessary to make Gerard “utter directly and truly his uttermost knowledge” concerning certain traitors to the Crown.
In English common law courts, statements elicited by torture were inadmissible against criminal defendants. However, the monarchy had the power to assert jurisdiction in his own
John H. Langbein, [I]n the Tudor period judicial torture was adopted for regular use to investigate certain serious crimes. Langbein has located eighty-one torture warrants issued by the Privy Council between 1540 and 1640. Most of the suspected crimes were political or religious, with a quarter of the warrants involving ordinary crimes such as burglary and horse stealing. The immediate purpose of English torture, which reached its zenith in the 1580s and 1590s, was to ward off the perceived threat from political opponents of the Elizabethan state, particularly Roman Catholics. In the 1620s torture practically ceased, probably because of the decline in the political threats against which it had been used.
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“Actually, there were three inquisitions.” Thomas W. Simon, The first, the Medieval Inquisition (1184), attacked heresies, particularly the dualist beliefs of the Cathars and the Waldensians in southern France. A 1215 papal bull,
Frank O. Bowman, III,
“[A] medieval Latin expression meaning literally ‘the scandal of magnates.’” John C. Lassiter,
Lassiter,
Many lower court judges have also mistakenly reported that English Declaration of Rights contains the first appearance of the cruel and unusual punishments language.
The framers of the U.S. Bill of Rights, Professor John Stinneford writes, “were particularly concerned about the fact that the federal government would not be bound by the fundamental principles of the common law, and they insisted on a Bill of Rights that would ensure the new government did not transgress these bounds.” Stinneford,
Juliana Van Hoeven,
The conflict between Charles I, son of James I, and a succession of Puritan-dominated Parliaments in England led to civil war in 1642, during which Charles I was executed by the Parliamentarians. A republican regime, Oliver Cromwell’s Commonwealth, lasted from 1649 until the Stuart monarchy was restored in 1660. James II’s overt Catholicism and the birth of a Catholic heir united Tories and Whigs in opposition. Seven nobles invited William of Orange and his consort Mary, Protestant daughter of James, to come to England’s aid. After the revolution they ruled jointly as William III and Mary II. Their acceptance of the Bill of Rights assured ascendancy of parliamentary authority over royal absolutism.
King Charles I, through his actions, made many enemies prior to Parliament’s drafting of the Grand Remonstrance. In 1629, he dissolved Parliament and, for a period of eleven years, ruled as an “absolute monarch.” He also used the Court of Star Chamber to punish his enemies, including through enormous fines. With Charles I’s support, William Laud—the Archbishop of Canterbury—began “imposing a standard plan of worship upon the clergy,” which provoked the ire of the Scottish church and of Puritans (who were punished by the Star Chamber through draconian corporal punishments). In February 1640, Charles called what became known as the “Short Parliament” into session, but that Parliament (which sat from April 13-May 5, 1640) was soon dissolved. After another Parliament was called in November 1640 (which became known as the “Long Parliament”), John Pym—a leader of the House of Commons—made a list of complaints against Charles I that came to be called the Grand Remonstrance.
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Hadix v. Caruso, 461 F. Supp.2d 574, 590 (W.D. Mich. 2006) (citations omitted): The turn of phrase “nor cruel and unusual punishments inflicted” was borrowed from the English Bill of Rights of 1689, which meant to prohibit the imposition of punishments which were not statutorily authorized or otherwise clearly excessive. The drafters and adopting states, at the time, were primarily concerned with banning barbarous methods of execution and torture once practiced in England and then practiced in other countries such as France and Spain. Indeed, Patrick Henry objected before the Virginia Assembly to the language of the original Constitution for its failure to contain a torture prohibition.
United States v. Moore, 486 F.2d 1139 n.160 (D.C. Cir. 1973) (Wright, J., dissenting): The path by which the phrase “cruel and unusual punishment” has come into our law is well known. The principle it represents can be traced to the Magna Carta, and the phrase was first used in the English Declaration of Rights of 1688. In 1776 the phrase formed a part of the Virginia Declaration of Rights, and James Madison included it in the constitutional amendments he drafted in 1789. It was incorporated into the Constitution in 1791 as part of the Eighth Amendment with little debate.
Ved P. Nanda,
John D. Bessler, “From the Founding to the Present: An Overview of Legal Thought and the Eighth Amendment’s Evolution,”
Bessler, “From the Founding to the Present,”
Thomas Jefferson’s biographer, Dumas Malone, summed up George Mason’s contributions to the American Revolution in these words: “He was the author of the Virginia Declaration of Rights, which was adopted three weeks before the national Declaration of Independence; and in this he charted the rights of human beings much more fully than Jefferson did in the immortal but necessarily compressed paragraph in the more famous document.” W
State v. Carr, 502 P.3d 546, 635 (Kan. 2022) (“The theory of ‘natural rights’ traces its lineage from the writings of John Locke through the Declaration of Independence, written by Thomas Jefferson, and the Virginia Declaration of Rights of 1776, written by George Mason.”).
The Virginia Declaration, as it circulated in draft, had stated “That all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. The Virginia Convention, of course, later revised the draft statement so that readers would not think it included slaves: it was only when men “entered into society,” which slaves had not done, that their rights had any meaning.
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Granucci, The original draft of February 2 speaks of illegal punishments. The document of February 12 complains of “illegal and cruel punishments” and then continues to prohibit “cruel and unusual punishments.” No contemporary account gives any reason for the change in language. Indeed, John Somers, reputed draftsman of the Bill of Rights, wrote later of the “horrible and illegal” punishments used during the Stuart regime. The final phraseology, especially the use of the word “unusual,” must be laid simply to chance and sloppy draftsmanship.
Granucci,
The treason trials of 1685—the ‘Bloody Assizes’—which followed an abortive rebellion by the Duke of Monmouth, marked the culmination of the parade of horrors, and most historians believe that it was this event that finally spurred the adoption of the English Bill of Rights containing the progenitor of our prohibition against cruel and unusual punishments. The conduct of Lord Chief Justice Jeffreys at those trials has been described as an ‘insane lust for cruelty’ which was ‘stimulated by orders from the King’ (James II). The assizes received wide publicity from Puritan pamphleteers and doubtless had some influence on the adoption of a cruel and unusual punishments clause. But, the legislative history of the English Bill of Rights of 1689 indicates that the assizes may not have been as critical to the adoption of the clause as is widely thought. After William and Mary of Orange crossed the channel to invade England, James II fled. Parliament was summoned into session and a committee was appointed to draft general statements containing ‘such things as are absolutely necessary to be considered for the better securing of our religion, laws and liberties.’ An initial draft of the Bill of Rights prohibited ‘illegal’ punishments, but a later draft referred to the infliction by James II of ‘illegal and cruel’ punishments, and declared ‘cruel and unusual’ punishments to be prohibited. The use of the word ‘unusual’ in the final draft appears to be inadvertent.
Harmelin v. Michigan, 501 U.S. 957, 971–94 (1991) (citations omitted): [T]he Commons’ report of the conference confirms that the “cruell and unusuall Punishments” clause was directed at the Oates case (among others) in particular, and at illegality, rather than disproportionality, of punishment in general. . . . . In all these contemporaneous discussions, as in the prologue of the Declaration, a punishment is not considered objectionable because it is disproportionate, but because it is “out of [the Judges’] Power,” “contrary to Law and ancient practice,” without “Precedents” or “express Law to warrant,” “unusual,” “illegal,” or imposed by “Pretence to a discretionary Power.” Accord, 2 Macaulay 204 (observing that Oates’ punishment, while deserved, was unjustified by law). Moreover, the phrase “cruell and unusuall” is treated as interchangeable with “cruel and illegal.” In other words, the “illegall and cruell Punishments” of the Declaration’s prologue are the same thing as the “cruell and unusuall Punishments” of its body. (Justice MARSHALL’s concurrence in
The U.S. Supreme Court’s failure to identify earlier usages of the “cruel and unusual punishments” terminology—as well as the conclusion that use of “unusual” in the English Bill of Rights was inadvertent—has led to an incomplete and distorted view of the “cruel and unusual punishments” prohibition.
Article 55 of the Uniform Code, 10 U.S.C. § 855, provides a servicemember comparable protection against “[p]unishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment.” Indeed, we have held that, in enacting Article 55, Congress “intended to grant protection covering even wider limits” than “that afforded by the Eighth Amendment.”
10 U.S.C. § 855 (Article 55 of the Uniform Code of Military Justice, titled “Cruel and unusual punishments prohibited,” reads: “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.”). Many states have similar provisions.
428 U.S. 153 (1976).
United States v. Johnson, 383 U.S. 169, 178 (1966) (noting the “history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators”).
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Ronald A. Christaldi, Comment, “The project involved driving out the native Celtic population from a particular area and replacing it with loyal ‘English’ settlers.” This effort to Anglicize Ireland was intensified under Mary’s successor Elizabeth I. For example, the plantation of Munster was initiated in 1584, when 500,000 acres were confiscated from the native population and redistributed to English settlers.
United States v. Bajakajian, 524 U.S. 321, 335 (1998) (noting that the Magna Carta, “which the Stuart judges were accused of subverting,” required that “amercements (the medieval predecessors of fines) should be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood”); Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1331 (11th Cir. 2021) (Tjoflat, J., concurring in part and dissenting in part) (“Because abuses abounded under the Stuart kings in the seventeenth century, the English Bill of Rights of 1689 picked up on Magna Carta’s language and directed that ‘excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.’”) (quoting 1 Wm. & Mary, ch. 2, § 10, in 3 Eng. Stat. at Large 441 (1689)).
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Michael Vitiello,
Continuing in his father James I’s footsteps, Charles regarded the Parliament not so much as a representative of the people as a functionary of the Crown, to be called or suspended at the Crown’s discretion. After 1629, he suspended the Parliament in retaliation for its uncooperativeness and began imposing fiscal and economic policies that traditionally called for Parliamentary involvement, if not consent. These policies were implemented by a series of new royal officers, notably the widely hated Earl Thomas Strafford. Needing money for his unpopular wars and lavish living, Charles levied crushing taxes on the people without their consent. He feigned a national military emergency that strengthened his royal prerogative and allowed him to institute military tribunals to mete out rough justice against rebels and to fabricate a form of national taxation on all people. He fined the gentry for their failure to become knights and for their purported trespasses on the royal forests. He quadrupled inheritance taxes and receipts from wardships. He sold commercial monopolies to the highest bidders, creating oligarchies that inflicted massive abuses on workers and high prices on consumers. He confiscated private properties and compelled farmers and small businessmen to make loans that were never repaid. He forced tradesmen and craftsmen into guilds that were subject to strict controls, heavy bureaucracies, and sundry fees. And to make all these onerous restrictions work, Charles enhanced the power of the royal prerogative courts and administrators—Star Chamber, Admiralty, High Commission, Requests, Privy Council, and more—that enforced royal policies ruthlessly and stripped away many of the procedural protections and conventions maintained by lawyers in the Inns of Court. Charles’ royal officers also interfered deeply in city and rural county governments that had governed local affairs for centuries without much royal involvement.
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Ira Cohen,
Witte, When Parliament was finally called into session in 1640, an unlikely assemblage of aristocrats, lawyers, artisans, financiers, and religious dissenters united in seizing power with a vengeance. Whipped up by Calvinist preachers who thundered fire-and-brimstone sermons denouncing the tyranny of the English church and state, Parliament worked hard to dismantle Charles’ policies. In a series of acts from 1640 to 1642, Parliament abolished Star Chamber, the Court of High Commission, and other royal prerogative courts, and shifted much civil and criminal jurisdiction to the common law courts. Parliament limited ship money, forced loans, and other hated taxes and claimed exclusive jurisdiction over all future taxation. It removed many of the new encumbrances on the aristocracy and gentry, restored the traditional uses of the royal forests, and removed some of the monopolies and guilds. It truncated severely the temporal power of the Anglican bishops and removed the clergy from the House of Lords. It tried both Strafford and Laud for their belligerence, sending Strafford to the gallows and Laud to prison. And it passed a law that required the King to call Parliament thereafter at least triennially and ideally every year.
In 1640, the English “world turned upside down.” For the first time in eleven years, King Charles called Parliament into session, and the members erupted in unprecedented fury against two decades of belligerent royal policies that had left the nation in disarray. Some of Parliament’s fury was directed at Charles’ religious policies. Upon his succession to the throne in 1625, Charles had stepped up his father’s already stern Anglican establishment laws and began persecuting Calvinists (often called Puritans) and other religious dissenters with a vengeance, driving them by the boatload to the Netherlands and to America—some 20,000 in 1632 alone. In 1633, he appointed William Laud as Archbishop of Canterbury, who began purging English pulpits of Calvinist sympathizers and packing them with conservative clerics, loyal to the Crown and to the textbooks of established Anglicanism—the Book of Common Prayer, the Thirty-Nine Articles of the Faith, and the Authorized, or King James, Version of the Bible. Charles and Laud strengthened considerably the power and prerogatives of the Anglican bishops and the ecclesiastical courts. They also tried to impose Anglican bishops and establishment laws on Scotland, triggering an expensive and ultimately futile war with the Scottish Presbyterians. English dissenters who criticized these religious policies were pilloried, whipped, and imprisoned, and a few had their ears cut off and were tortured. When the Parliament was finally called in 1640, it let loose a massive torrent of protests, including the famous Root and Branch Petition and The Grand Remonstrance that called for the abolition of much that was considered sound and sacred in the Church and Commonwealth of England.
During the Restoration, Parliament firmly resisted the restoration of the High Commission in 1661. James II added one more reason for English people to panic when, in 1688, he created a Court of Commissioners for Ecclesiastical Causes, which was all but indistinguishable from the previously abolished High Commission. Hence, in 1689, the English Bill of Rights included a clause which read: “that the commission for erecting the late court of commissioners for ecclesiastical cause[s] and all other commissions and courts of like nature, are illegal and pernicious.”
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Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985),
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Diarmuid F. O’Scannlain,
William Ortman,
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United States v. Rahimi, 602 U.S. 680, 694 (2024); Consumer Fin. Prot. Bureau v. Community Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 428 (2024); Rogers v. Grewal, 140 S. Ct. 1865, 1870 (2020) (Thomas, J., dissenting);
United States v. Texas, 599 U.S. 670, 732 (2023) (Alito, J., dissenting).
SFF-TIR, LLC v. Stephenson, 262 F. Supp.3d 1165, 1204 (N.D. Okla. 2017). A centerpiece of the Magna Carta was its 39th article, which provided: “No free man shall be taken, imprisoned, deprived of possessions, outlawed, exiled or in any way diminished, nor shall we go against him or send anyone against him except by means of a legal judgment of his peers or by means of a law of the land.” In re Green, No. 96-0222, 1996 WL 660949, at *3 (E.D. Pa. Nov. 15, 1996);
People v. Broadie, 332 N.E.2d 338, 351 (N.Y. Ct. App. 1975): In a day when many offenses were punished by discretionary amercement, or fining, imposition of these amercements was soon abused in an effort to increase royal revenue. Eventually the nobility was compelled to put an end to the ruinous system of discretionary amercement, and in 1215 King John was forced to include in Magna Carta three chapters banning excessive fines (Magna Carta, chs. 20—22). Although perhaps more honored in principle than in practice, the prohibition against excessive punishment became a precept of the English common law . . . .
586 U.S. 146 (2019).
The origins of the prohibition against cruel and unusual punishment on this continent took root as early as 1641, in the Massachusetts Body of Liberties. Language reminiscent of the Eighth Amendment was first introduced into the laws of Massachusetts by Reverend Nathaniel Ward. Ward, a minister, had also been trained in the law. After being “suspended, excommunicated and deprived of his benefice” in England, Ward came to Massachusetts. While he was there, a period of political unrest ensued. Following some of this upheaval in the Massachusetts colony, a series of committees was established. The purpose of these committees was to develop or “frame a body of grounds of laws, in resemblance to a Magna Charta, which . . . should be received for fundamental laws.” Reverend Ward was appointed to one of these committees. In 1641, a proposed code which Reverend Ward drafted was circulated and ultimately enacted “under the title Body of Liberties.” This code has been recognized as “the most important as a forerunner of the federal Bill of Rights.” The Body of Liberties prohibited “Barbarous and inhumane” torture and “bodilie punishments.”
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Commonwealth v. Alger, 61 Mass. 53, 70–71 (Mass. Sup. Jud. Ct. 1851): The term “liberties” was used as synonymous with laws, or legal rights founded and established by law. In the published edition of the colony ordinances, generally, they are denominated the Laws and Liberties. The code already alluded to as having been accepted and adopted in 1641, was called the “Body of Liberties.” It is said by Hutchinson, that they were composed by Rev. Nathaniel Ward, of Ipswich, who, he adds, had been a minister in England, and formerly a student and practiser in the course of the common law. 2 Winthrop’s Journal, 55. They bear intrinsic evidence of having been drawn with great skill and legal accuracy, and have a constant reference to the established principles of the laws of England Yet they were called Liberties. Perhaps this was advisedly done, because the colonial government were acting under a charter which made them a corporation; and although it conferred on the governor and company large powers to govern the settlement which they might establish, yet it was always so as “not to be repugnant to the laws of England.” It might seem to them less arrogant to set forth and declare their “liberties” and rights in this form, than to enact in terms a body of laws, which might seem to indicate a disregard of the authority of the mother country. This use of the term “liberty,” as synonymous with right, franchise, and privilege, is strictly conformable to the sense of the term as used in
Kellen R. Funk & Sandra G. Mayson,
Jackson v. Phillips, 14 Allen 539, 562, 96 Mass. 539, 562 (Mass. Sup. Jud. Ct. 1867) (“The Massachusetts Body of Liberties, as Governor Winthrop tells us, was composed by Nathaniel Ward, who had been ‘formerly a student and practiser in the course of the common law.’”) (citation omitted); While the founders of that colony recognized their political dependence upon England, they came to these shores with a fixed purpose to found a common-wealth with laws of their own. They left England just after the troubles between Charles I and his early parliaments, and partly because of those troubles. Most of them sympathized with the parliaments rather than with the king. The royal charter authorized them to make laws and ordinances “not repugnant to the laws of England.” And they did so. They did not consider the common law of England as binding upon them, but they felt at liberty to adopt just so much of it as suited their purpose. From time to time, as occasion arose, they enacted laws of their own. But for 10 years they had no “body of laws,” and were without the security of a system of statutes or any recognition of the authority of the common law. Palfrey, Hist. of New England, vol. 1, at page 280. Rights of parties were settled by the magistrates, where there was no express ordinance, according to their conceptions of equity and justice, or according to their understanding of the law of God. The people grew dissatisfied with this somewhat uncertain and irregular administration of justice and wished for a “body of laws.” Consequently in 1636 a committee was appointed “to make a draught of laws agreeable to the word of God.” “In the meantime the magistrates and their associates” were “to determine all causes according to the laws” already established, and, where there “was no law, then as near the law of God as they” were able. In 1641 a “Body of Liberties” was adopted. It was the first system of statutes in that colony. It had been drafted for the most part by Rev. Nathaniel Ward, who while in England had both studied and practiced law. The Body of Liberties consisted of 100 sections, and covered a wide range of subjects.
John Witte, Jr.,
Among the many colonial rights documents from the seventeenth century, let me focus on a surprising early one: The Body of Liberties drafted for Massachusetts Bay in 1641—“in resemblance of a Magna Charta,” as Governor John Winthrop put it. The Body of Liberties incorporated not only the rights guarantees of the Magna Carta (1215) and the Petition of Right (1628) but also many of the most daring rights proposals of the early modern pamphleteers in England, along with a number of surprising innovations. I say “surprising” because seventeenth-century colonial Massachusetts was hardly known in its day as a haven of liberty. It was better known for its austere Calvinist morality; its early banishment of Roger Williams, Anne Hutchinson, and others for heresy; its belligerent treatment of the Quakers, hanging four of them in the Boston Common; and its horrible and deadly campaigns against the “witches” of Salem. This seems like the wrong place to look for rights. But in fact, the articulation and protection of rights was an early and important part of the constitutional development of this young colony. It must be remembered that Massachusetts Bay was set up in part as a haven for Puritan Calvinists, who shared many of the rights ideas of the English revolutionaries of the 1640s; indeed, some of the New England colonists had been forced to flee from England in the 1620s and 1630s because of their radical views. Moreover, the Puritans of both England and New England were heirs to a century of European Calvinist rights talk that had become ever more radical and expansive in the later sixteenth and early seventeenth centuries as Calvinists faced tyrannical oppressors in church and state and rose up in revolutionary defense of their God-given “fundamental rights.” The New England Puritans knew this Calvinist rights heritage, and had taken a number of the key theological and political documents with them to the new world.
J. Nelson Happy & Samuel Pyeatt Menefee, In 1636, “the General Court of Massachusetts requested the divine John Cotton and others “‘to make a draught of lawes agreeable to the word of God, which may be the Fundamentalls of this commonwealth.”’ As the son of an attorney, Cotton “had some understanding of the law but was known more for his biblical scholarship and his expositions of Puritan orthodoxy”; that his work owed much to the Old Testament, is suggested by Gov. John Winthrop’s characterization of the draft as “‘A Model of Moses His Judicialls.”’ While these were not adopted, the work of another minister, the Rev. Nathaniel Ward, produced a “Body of Liberties” in 1641 which had greater influence on Massachusetts’ colonial laws. This corpus included “contributions from the Mosaic code in the drafting of the laws punishable by death.”
Drawing upon the Bible and Exodus, Leviticus, Numbers, and Deuteronomy, Ward—annotating the “Body of Liberties” with specific biblical verses to show its derivation from “the word of God,” made these crimes punishable by death: (1) idolatry; (2) witchcraft; (3) blasphemy; (4) murder; (5) manslaughter; (6) poisoning; (7) bestiality; (8) sodomy; (9) adultery; (10) man-stealing; (11) false witness in capital cases; and (12) conspiracy and rebellion.
Granucci,
Rumann,
Rumann,
Laura K. Donohue, The Tudor monarchy sanctioned numerous grotesque forms of torture and execution, including the “rack” in the Tower of London. Robert Beale . . . condemned royal use of the rack, calling the practice “cruel, barbarous, contrary to law, and unto the liberty of English subjects.” In 1615, the Court of King’s Bench declared that throwing a man into a dungeon with no bed or food for criticizing an officer of the crown represented an “unlawful or extreme” punishment. In its condemnation of depriving the man of food and water, the Court of King’s Bench acknowledged that passive cruelty inflicts just as much pain and suffering as active cruelty, and should be similarly protected against.
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“We have very little evidence of the Framers’ intent in including the Cruel and Unusual Punishments Clause among those restraints upon the new Government enumerated in the Bill of Rights,” Justice William Brennan once wrote.
In debates of the First Congress, Representative William Loughton Smith of South Carolina “objected to the words ‘nor cruel and unusual punishments’” because of his view that “the import” of those words was “too indefinite.” By contrast, Representative Samuel Livermore of New Hampshire offered this perspective of the Eighth Amendment’s text: “The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.” B
The English Declaration of Rights was drafted after William of Orange invaded England and King James II was deposed, with Willam and his wife, Mary, ultimately becoming co-sovereigns. After a Parliament was called to determine succession to the throne, “a declaration of rights was drafted which the new monarchs, William and Mary, would ratify.” Granucci,
Jeffrey D. Bukowski, Comment,
State v. Burlington Drug Co., 78 A. 882, 885 (Vt. 1911) (“The framers of our Constitution considered, as did the English Parliament in 1689, that protection against excessive fines and cruel and unusual punishments was one of the ‘true, ancient and indubitable rights and liberties of the people,’ and that it should so ‘be esteemed, allowed, adjudged, deemed, and taken to be.’”) (quoting 1 William & Mary, Sess. 2, c. 2, §§ 1, 6);
A common law right is a right based on general or local customs rather than written law. These common law rights were rooted in custom or usage, enforced or “discovered” by common law courts, and revealed in reported judicial decisions. According to one nineteenth century treatise on the laws of England, common law rights “receive[d] their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” The custom giving rise to the common law right must be ancient; “[T]he goodness of a custom depends upon its having been used time out of mind . . . time whereof the memory of man runneth not to the contrary.”
To qualify as an “ancient” right, that right obviously had to be preexisting for a substantial period of time. In his treatise, Blackstone provided a list of criteria judges should consider before codifying norms into the common law. Blackstone contended that norms must be long-established and uncontentious before being incorporated into the common law. According to Plucknett, the civilian jurist Azo, held in high esteem by Bracton, noted that “a custom can be called
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T The modern age of legislation by means of laws deliberately set up and expressed in certain authoritative texts covers but a very small period of legal history. Preceding it the principal element in most legal systems was custom. There were, of course, other factors as well in many cases. In canon law, for example, there were authoritative texts from the Bible and elsewhere, and most systems had at least a few examples to show of deliberate legislation. But the great mass of the law into which these exceptional elements had to be fitted was custom. Our earliest Anglo-Saxon “laws” are modifications of detail and obviously assume that the legal fabric is essentially customary. The communal courts which survived into historical times, especially the hundred and the county, were customary in their origin, and declared customary law whose sanction was derived from custom. But the remarkable feature of custom was its flexibility and adaptability. In modern times we hear a lot too much of the phrase “immemorial custom”. In so far as this phrase implies that custom is or ought to be immemorially old it is historical inaccurate. In an age when custom was an active living factor in the development of society, there was much less insistence upon actual or fictious antiquity.
Craig W. Dallon,
Howell v. McAuliffe, 788 S.E.2d 706, 721 n.14 (Va. 2016) (“As many commentators have noted, the Founders ‘felt themselves the heirs of the Revolution, of the glory derived from 1688. Americans of the 1770s felt they were approaching a ‘centennial’ of their own, reliving memories of the English Bill of Rights.”) (quoting G
Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting of the Eighth Amendment’s prohibition of “cruel and unusual punishments”: “It suffices to note that the primary concern of the drafters was to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of punishment.”); Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, ... maiming, mutilating and scourging to death”).
Laurence Claus,
The first usage of the “cruel and unusual punishments” terminology has long been associated with the English Declaration of Rights.
Bachmann,
George Mason, the drafter of the Virginia Declaration of Rights, certainly felt that way.
Solem v. Helm, 463 U.S. 277, 285–86 (1983).
Eliana Geller,
Michael J. Zydney Mannheimer,
In 1680, a committee of the House of Commons “examined the transcripts of all the fines imposed in King’s Bench since 1677” and found that “the Court of King’s Bench, in the Imposition of Fines on Offenders of late Years, hath acted arbitrarily, illegally, and partially; favouring Papists and Persons popishly affected; and excessively oppressing his Majesty’s Protestant Subjects.” The House of Commons determined that the actions of the judges of the King’s Bench, particularly the actions of Chief Justice William Scroggs, had been so contrary to law that it prepared articles of impeachment against him. The articles alleged that Scroggs had “most notoriously departed from all Rules of Justice and Equality, in the Imposition of Fines upon Persons convicted of Misdemeanors” without “any Regard to the Nature of the Offences, or the Ability of the Persons.” Yet “[o]ver the next few years fines became even more excessive and partisan.” The King’s Bench, presided over by the infamous Chief Justice Jeffreys, fined Anglican cleric Titus Oates 2,000 marks (among other punishments) for perjury. For speaking against the Duke of York, the sheriff of London was fined £100,000 in 1682, which corresponds to well over $10 million in present-day dollars—“an amount, which, as it extended to the ruin of the criminal, was directly contrary to the spirit of [English] law.” The King’s Bench fined Sir Samuel Barnadiston £10,000 for allegedly seditious letters, a fine that was overturned by the House of Lords as “exorbitant and excessive.” Several members of the committees that would draft the Declaration of Rights—which included the prohibition on excessive fines that was enacted into the English Bill of Rights of 1689—had themselves “suffered heavy fines.” And in 1684, judges in the case of John Hampden held that Magna Carta did not limit “fines for great offences” against the King, and imposed a £40,000 fine. “Freedom from excessive fines” was considered “indisputably an ancient right of the subject,” and the Declaration of Rights’ indictment against James II “charged that during his reign judges had imposed excessive fines, thereby subverting the laws and liberties of the kingdom.” Article 10 of the Declaration declared “[t]hat excessive Bayle ought not to be required nor excessive fynes imposed nor cruel and unusuall Punishments inflicted.” Shortly after the English Bill of Rights was enacted, Parliament addressed several excessive fines imposed before the Glorious Revolution. For example, the House of Lords overturned a £30,000 fine against the Earl of Devonshire as “excessive and exorbitant, against Magna Charta, the common right of the subject, and against the law of the land.” Although the House of Lords refused to reverse the judgments against Titus Oates, a minority argued that his punishments were “contrary to Law and ancient Practice” and violated the prohibition on “excessive Fines.” The House of Commons passed a bill to overturn Oates’s conviction, and eventually, after a request from Parliament, the King pardoned Oates.
Justice Scalia argues that Justice Powell distorted the history of the Eighth Amendment in
George Jeffreys was the Lord Chief Justice of the Court of King’s Bench from 1683 to 1689. Stewart Jay, Judge Jeffreys “sent 292 prisoners to their deaths and brutally punished hundreds of others.” In 1685, Jeffreys conducted the “Bloody Assize” against rebels captured during the Duke of Monmouth’s rebellion. Others, however, posit that the ban was a result not of the Bloody Assize, but rather arose from the case of Titus Oates, a cleric of the Church of England who was sentenced to life for perjury. His sentence also included four annual floggings. This punishment was viewed as excessive for the crime of perjury as well as cruel. Regardless of the animating event, the goal of the provision was two-fold: to restrain judges from devising methods to keep prisoners detained indefinitely and to prohibit barbarous punishment.
Aquinas states that, if a penalty is excessive, it becomes cruelty or brutality. The court in
477 U.S. 399 (1986).
In the alleged “Popish Plot” conspiracy, James II’s secretary, Edward Coleman, was identified as a ringleader in the concocted plot to murder King Charles II and set fire to London, with Jesuits and Catholics said to be planning to kill 100,000 Protestants in London. “The main accusations,” legal historian John Langbein writes, “were made by Titus Oates, a failed Anglican clergyman who admitted to having sojourned on Jesuit charity in France, where he claimed to have overheard details of the plot.” Another perjurer, William Bedloe, also embellished Oates’s sensational charges, and as the resulting treason prosecutions played out, other false accusations were made even as suspicions about the veracity of Oates’s testimony grew, ultimately leading to Oates’s conviction for perjury in 1685. Perjury was a misdemeanor, but Lord Chief Justice George Jeffreys called Oates’s perjury a “crime infinitely more odious than common murder.” After his sentencing, Langbein notes, “Oates was savagely whipped and pilloried before a crowd that was reckoned to number 10,000 people.” L
Mannheimer,
Ryan,
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Ryan,
Wilkerson v. Utah, 99 U.S. 130, 135 (1878) (quoting William Blackstone’s
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State v. Woodward, 69 S.E. 385, 388 (W. Va. Sup. Ct. App. 1910) (quoting the fourth volume of Blackstone’s
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4 W The punishment of perjury and subornation, at common law, has been various. It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now it is fine and imprisonment, and never more to be capable of bearing testimony. But the statute 5 Eliz. c. 9. (if the offender be prosecuted thereon) inflicts the penalty of perpetual infamy, and a fine of 40
“[M]onopolists,” Blackstone wrote, “are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb . . . .”
William Blackstone (1723–1780) was the Vinerian Professor of Civil Law who, in the 1760s, arranged for Oxford University Press to print his
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Akhil Reed Amar,
The prohibition on “cruel and unusual punishment” in the Eighth Amendment echoed identical language in the English Bill of Rights of 1689. That language was a reaction to the famous 1685 case of the political dissenter Titus Oates. Oates was convicted of perjury and sentenced to be pilloried repeatedly for his role in fomenting opposition to the alleged “Popish Plot” of the Stuart monarchy. (The punishment of the pillory was a kind of shaming sanction, involving the use of a wooden framework through which the convicted person’s hands and head were inserted, thus subjecting him to the indignities of public display and insult.) Oates’s punishment galvanized opposition to the excesses of the Court of Star Chamber in trials of members of the English gentry, a development that James Q. Whitman has recently situated in the context of a more general Anglo-American tendency towards degrading, low-status criminal punishment.
In the late 1600s, the English Parliament continued the struggle that had lasted most of that century against Stuart absolutism. The two Charleses and two Jameses had indeed sought to limit Parliament’s power and thus the growth of representative democracy. Emerging Enlightenment philosophers such as John Locke gave philosophical foundation to the politics of parliamentary power. A religious element enhanced the conflict through the seventeenth century, in varying degrees, depending on the tenor of the times and whether the particular James or Charles was merely a high Anglican, a closet Catholic, or an overt Catholic—the latter being most offensive to the Puritan-leaning parliaments. Push came to shove when the parliamentary party encouraged the Dutch Prince of Orange, William, to wrest the English throne from James II. William, along with his Protestant and parliamentary supporters, was successful at ousting James II from power. On Britain itself, the “revolution,” which was rather bloodless, gave birth to the English Bill of Rights and entrenched representative democracy with its Enlightenment foundations—hence the term “Glorious.”
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Benjamin White, Comment,
Deborah M. Forhan, Note, Harmelin v. Michigan:
Michael J. Zydney Mannheimer, Harmelin’s
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In addition to assuming the English throne, William and Mary also became the monarchs of Ireland and Scotland.
Brief Amicus Curiae of Professor John F. Stinneford in Support of Neither Party,
Rumann, [T]he same year that the English Bill of Rights was enacted, the Scottish Parliament also enacted a similar measure to address the excesses of the same King. That document, the Scottish Claim of Right, specifically used the word punishment when referring to torturous interrogation. The Claim of Right of 1689 stated “[t]hat the forcing of Leiges to depone against themselves in capital crimes, however the punishment be restricted is contrary to law.” It further stated “[t]hat the using of torture without evidence or in ordinary crimes, is contrary to law.”
The Scottish Claim of Right (1689) complained about “Arbitrary Despotic Power,” “extravagant Bail” and “Exorbitant Fines.” Along with England, both Ireland and Scotland were also part of James II’s realm, though James II—because of Scottish history—went by James VII in his Scottish kingdom. In Edinburgh, on April 11, 1689, the same day William and Mary were crowned as England’s new king and queen, the Declaration of the Estates of the Kingdom of Scotland, containing the Claim of Right, and the Offer of the Crown to their Majesties King William and Queen Mary, was issued. Like the English Bill of Rights, it similarly declared that “King
Concerns about the use of torture had been raised by Sir Robert Beale, who—in the words of Justice Thurgood Marshall—“protested that cruel and barbarous torture violated Magna Carta,” though “his protests were made in vain.”
The history of bail in Scottish criminal law reaches back to very early times. Persons accused even of the gravest capital offences might be liberated upon providing security for their appearance to stand trial. Prior to the Act of 1701, however, bail was allowed or refused in all cases at the court’s discretion, and there were no safeguards against prolonged incarceration pending trial. Following upon the Claim of Right, 1689, the Scottish Parliament in 1701 passed an “Act for preventing wrongous Imprisonments and against undue delayes in Tryals.” This act, which is cumbrously expressed by modern standards, made a distinction between “bailable” and “non bailable” offences. “Bailable offences” were such as could not be dealt with by capital sentence. In respect of these the granting of bail was a right, and a maximum tariff was fixed according to the social status of the accused. The maximum amounts fixed by the act were twice increased during the 18th century to bring them into closer accord with contemporary economic circumstances. The Act of 1701 left undisturbed the existing discretion of the court to grant bail for “non bailable” crimes and offences—
Ann Margaret Shukman, The Fall of Episcopacy in Scotland 1688–1691, MPhil (History), University of Glasgow (June 2011), at 33-36,
The Articles of Grievances Represented by the Estates of the Kingdom of Scotland, to the King’s most Excellent Majesty, to be Redressed in Parliament (Apr. 13, 1689),
Eighteenth-century Americans were, themselves, quite familiar with English history. But they too seem to have forgotten or never found out (or at least never brought up in the limited debate at the First Congress over the Eighth Amendment’s text and in the ratification debates that followed) that the cruel and unusual punishments concept dated back at least as far as King James I’s reign. Then again, their lack of concrete historical detail is very understandable; unlike twenty-first century Americans, they had no access to electronic databases, Google, or Boolean searches.
Blake A. Watson,
Craig R. Shagin,
During the reigns of Queen Elizabeth and King James I, English settlers migrated to Ireland and the Irish were dispossessed of their lands. The Elizabethan conquest of Ireland in the late 1500’s was followed by the first colonial plantation of Ulster. In the early 1600’s, James I embarked on a system designed to ensure loyalty to the Crown. He set out to replace what remained of the native population with loyal British subjects. However, the influx of English settlers failed to eradicate the native population as influxes of settlers had eradicated native peoples elsewhere in the world. When the initial settlement of Ulster faltered, the Ulster Irish wreaked savage vengeance on the Planters in 1641.
When Elizabeth I died in March 1603, the Tudor line of monarchs passed over to the House of Stuart. The new monarch, King James I of England, perceived himself to be a philosopher king, whose motto was taken from the Sermon on the Mount— King James had a personal program for achieving peace with Spain and for solving disagreement over religious doctrine by a Biblical translation bearing his name, the King James Bible. He sought to be a personal participant in both endeavors. However, James I’s reign saw a rebellious Parliament that had long been subservient to the Tudor monarchs. During his reign, the Magna Carta remained in the shade, where it would remain until Edward Coke picked it up and used it as a powerful tool to argue against the pretensions of the Crown.
Henrik Langeluddecke,
The English Civil War stretched from 1642 to 1651. Owen W. Gallogly,
Louis J. Sirico, Jr.,
Famous persons who were executed as a result of a Bill of Attainder included Thomas Cromwell (1540), Catherine Howard (1542), and the Earl of Strafford, Thomas Wentworth (1641). The Bill of Attainder issued against the Earl of Strafford is particularly notable. During the 1620s, Thomas Wentworth was a well-known member of the House of Commons and had a reputation for his “obstinacy towards the Crown.” Over the years, however, Wentworth’s political power within the House of Commons eroded. He resigned his post in Parliament and sided with the King. He was later appointed as the Earl of Strafford. In a quest for political reform, House of Commons leader John Pym, recognizing that Wentworth would be his “main obstacle,” instituted an impeachment trial against him for the cause of treason. At the trial, Wentworth and his lawyers “debunked all the allegations soundly.” At the close of the evidence, it was clear that the prosecution had failed. Pym turned to the Bill of Attainder for recourse. It passed the House of Commons by a final vote of 204–59 and in the House of Lords by a vote of 26–19. The King signed the bill, and Wentworth was executed soon thereafter.
Nikolas Bowie,
Paul Raffield,
Akhil Reed Amar, Thomas Wentworth, Earl of Strafford, was chief among the advisors of Charles I. He was impeached in 1640 on charges of subversion of “the Fundamental Laws and Government of the Realms” and endeavoring “to introduce Arbitrary and Tyrannical Government against Law.” Even in the heat of the struggle over the divine right of kings, the Commons, faced with a determined defense, declined to bring the trial to a vote in the House of Lords. Instead, the Commons adopted a bill of attainder against Strafford, thereby avoiding the tiresome necessity of making their case. The difference between impeachment and attainder could hardly be made more clearly.
Kevin Francis O’Neill,
R. H. Helmholz,
Liam Seamus O’Melinn, Note,
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The conflict between English monarchs seeking absolute power and believers in the unwritten British constitution dated back many centuries. After winning the Battle of Hastings with 10,000 men, William the Conqueror “pledged in his oath to respect all the ancient Saxon liberties expressed in the The vibrancy of the Ancient Constitution, and the proof that England’s kings were under and not above the law, is illustrated by the fact that between 1300 and 1485 five English kings were removed and executed. The five unfortunate monarchs were: (1) Edward II, (2) Richard II, (3) Henry VI, (4) Edward V, and (5) Richard III. Pre-Tudor England was a very unsafe kingdom in which to be a king because Englishmen fought vigilantly to maintain the Ancient Constitution. Three of the Tudor monarchs, Henry VII, Henry VIII, and Elizabeth I, proved to be very powerful but they all took great care to get Parliament’s approval for everything they did. When James I inherited the English throne in 1603, the English people did not believe in absolute monarchy or the divine right of kings. Since James I, and his son Charles I, did believe in those things, the stage was set for a century of conflict, which included the English Civil War and ended with the Glorious Revolution of 1688, which restored the Ancient Constitution in England. Many Englishmen during the 17th century wrote that the Stuarts were trying to restore the “Yoke of the Norman Oppression” on the English people. Sir Edward Coke was the preeminent lawyer and judge of his generation, and he was very active politically during the reign of James I and at the beginning of the reign of Charles I. He fought both monarchs tirelessly, and he was fired by James I from his position as lord chief justice of England for issuing injunctions and writs of mandamus which nullified orders issued by James I on the ground that they violated the Ancient Constitution. Coke denied that James I had the power to issue monopolies and to create special courts that intruded upon the jurisdiction of the common law courts. After being fired from his judgeship, Coke ran for and was elected to be a member of the House of Commons. By then King Charles I was engaging in the unseemly practice of arresting wealthy individuals and then offering to free them for a “loan,” which would never be repaid. Coke led the House of Commons in securing passage of the Petition of Right, which restated the validity of Magna Carta, forswore any royal power to arbitrarily imprison people, acknowledged that only Parliament had the power to raise taxes, and secured the right of Charles I reneged on all of his promises and tried to arrest five members of parliament by sending troops into the House of Commons. Thus began the English Civil War, which ended in the execution of Charles I. The monarchy was restored in 1660, but when James II claimed tyrannical powers under the divine right of kings, he was overthrown in the Glorious Revolution of 1688, which once and for all settled the principle that the king was a constitutional monarch who was under the law and who had no royal prerogative. In the Act of Settlement of 1701, Parliament changed the line of succession to the monarchy to exclude Catholics and to ensure a steady supply of docile and subservient kings and queens. The views of Sir Edward Coke, and his championing of the Ancient Constitution, eventually triumphed completely after a century of struggle.
A. E. Dick Howard, The Stuarts invoked the divine right of kings, putting them on a collision course with Parliament. That turbulent century saw the English Petition of Right, the execution of Charles I, the Cromwellian Commonwealth, and the restoration of the Stuarts. In 1688, the Glorious Revolution brought William and Mary to the throne, followed swiftly by the enactment of the English Bill of Rights in 1689.
Stinneford, “Back to the Future,” in T
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While King Charles II, on his deathbed, professed his adherence to Roman Catholicism, his younger brother, James, had become a Roman Catholic in the 1670s. Their mother, Henrietta Maria, King Charles I’s wife, was a Roman Catholic. Michael deHaven Newsom,
Alexander D. Northover, Comment,
Bradford William Short,
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Short,
The text of the Eighth Amendment is almost a verbatim recitation of a similar provision of the Virginia Declaration of Rights, which was itself an exact copy of a provision of the English Bill of Rights of 1689. The English Parliament enacted a Bill of Rights after William of Orange took over the English throne in 1688. There is a conflict, however, between traditional history and more modern scholarship as to the events that served as the launching point of the English prohibition of cruel and unusual punishments. Traditional history has it that the prohibition on cruel and unusual punishments was the result of the “Bloody Assizes.” The Bloody Assizes refers to a special commission established by King James II, and led by King’s Bench Chief Justice George Jeffreys, to try captured rebels following the ill-fated revolt against the king by James’s nephew, the Duke of Monmouth. During the trials, Sir Henry Pollfexen, the chief prosecutor for the special commission, let it be known that anyone accused of treason who pleaded guilty would not be put to death. While the plea offer was honored for a time, the government later executed almost 200 prisoners who had accepted the plea bargain. Puritan propaganda against Jeffreys—and by extension James II, who had appointed Jeffreys Lord Chancellor—and his “insane lust for cruelty” spread, leading traditional history to mark the Bloody Assizes as the spur for an English declaration against cruel and unusual punishments upon the abdication of James II. A modern view insists that the prohibition stemmed from the “Titus Oates Affair.” Titus Oates was one of the Puritan pamphleteers. In September 1678, Oates told about a “Popish Plot” to assassinate the Protestant King Charles II. Oates, however, had made up the story as a way of solidifying the opposition against a Catholic retaking the throne. With political backing, Oates swore to his story, and as a result, a number of Catholics were executed. Ultimately, Oates came before Chief Justice Jeffreys on a perjury charge. The court convicted Oates and sentenced him to a high fine and life imprisonment. The sentence also required Oates to be whipped, pilloried four times a year, and be stripped of his clerical position. After James II was dethroned, the House of Commons, disagreeing with the House of Lords, denounced Oates’s punishment as being cruel and unusual. Granucci states that this was the only recorded contemporary use of the term “cruel and unusual.”
Scott D. Gerber,
John Stinneford, That the punishment of Oates was “contrary to law and ancient practice” (paragraph five), violated the Cruel and Unusual Punishments provision of the 1689 Bill (paragraph six), and thus set a bad precedent (paragraph four), tell us nothing about which characteristics of the punishment were objectionable. Were one or more of the methods of punishment (e.g., fine, defrocking, imprisonment, pillorying, or whipping) “contrary to law and ancient practice” because no law authorized such methods? Or was some part of the punishment (e.g., imprisonment for life, annual pillorying, whipping for the entire distance from Aldgate to Newgate and from Newgate to Tyburn) “contrary to law and ancient practice” because it was in some way disproportionate to Oates’s crime? These portions of the dissenting Lords’ statement could bear either meaning. However, given that fines, imprisonment, pillorying, and whipping were all commonly used punishments at the time, the latter reading appears the more natural.
Downes v. Bidwell, 182 U.S. 244, 282 (1901) (referring to the prohibition on “cruel and unusual punishments” as among “certain natural rights enforced in the Constitution”); State v. Santiago, 122 A.3d 1, 142 n.6 (Conn. 2015) (Rogers, C.J., dissenting) (describing the “unenumerated right to be free from cruel and unusual punishment” as “well established under the common law in 1818” and discussing “‘the framers’ understanding of whether a particular right was part of the natural law, i.e., on the framers’ understanding of whether the particular right was so fundamental to an ordered society that it did not require explicit enumeration’”).
Andrew T. Peebles, Note, In adopting the 1689 Bill of Rights, the English Parliament sought to condemn punishments that were illegal because they were contrary to the common law. Punishments that departed from the common law, that is, punishments that departed from the historic custom of the community, could be described as “illegal” or as “ A century later, the American founders took this language of their English heritage and applied it as a constitutional limitation upon the validity of federal action. Through the Eighth Amendment and its state counterparts, they sought to condemn whatever the English prototype condemned. Those among them who had read Blackstone, and thus understood what the 1689 Bill of Rights condemned, would have known that the provision made the common law an objective referent for which punishments were unusual (illegal at common law) and cruel (harsher than the common law allowed).
In prior books, I have documented many of the views of America’s founders on punishments—and on capital punishment in particular—and of their general embrace of Enlightenment writers.
One prior study of the U.S. Constitution’s Eighth Amendment pointed out that many early Americans (who often focused on the
The conception of “America’s founders” is somewhat elastic, if not elusive, especially if one is attempting to divine the “original meaning” of provisions of the U.S. Constitution.
Robert G. Natelson,
The more commonly accepted view among scholars today is that Article 10 was . . . drafted to prevent courts from doling out cruel and illegal punishments or severe punishments that are “unauthorized by statute and not within the jurisdiction of the court to impose,” such as occurred during the events of the Popish Plot of 1678 and 1679. Setting into motion the tragic events in 1678, Titus Oates falsely proclaimed under oath that there was a plot to assassinate King Charles II. This untruth caused fifteen innocent people to be convicted and executed, and after it was discovered that these undeserved executions were the result of Oates’s perjury, Oates was sentenced to a 2,000-mark fine, life imprisonment, whippings, quarterly pillorying, and defrocking. After the English Bill of Rights was enacted, Oates petitioned both houses of Parliament for a release from the judgment, but the House of Lords rejected the petition. A minority of the Lords dissented, however, stating that “the said judgments are barbarous, inhuman, and unchristian”; “there is no precedent to warrant the punishments of whipping and committing to prison for life, for the crime of perjury”; maintaining the judgment would “be an encouragement and allowance for giving the like cruel, barbarous, and illegal judgments hereafter”; the “judgments were contrary to law and ancient practice, and therefore erroneous, and ought to be reversed”; and the judgments were contrary to Article 10 of the English Bill of Rights. The House of Commons concurred with the dissenting Lords. The understanding that Article 10 prohibits such punishments unauthorized by statute and not within the jurisdiction of the court to impose derives from the complaint in the English Bill of Rights that “illegal and cruel punishments [have been] inflicted” and the simultaneous prohibition in Article 10 of “cruel and unusual punishments.” Scholars such as Anthony Granucci have argued that “illegal” and “unusual” were used interchangeably in the document, that the use of “unusual” was merely the product of sloppy drafting, and that the term “unusual” was used to mean “illegal” in seventeenth-century England. These scholars buttress this argument with the fact that the subsequent language of the dissenting Lords in response to Oates’s petition for release from judgment similarly referred simultaneously to “cruel, barbarous, and illegal judgments” and “cruel and unusual punishments.”
Many courts have opined on the broadly worded prohibition against “cruel and unusual punishments,” though without always acknowledging, or apparently even knowing, the reality that corporal punishments such as the pillory and the whipping post were still authorized and used in early America along with the death penalty. The courts and text-writers agree that the term “cruel or unusual punishment” is not susceptible of exact definition. Originally, no doubt, this prohibition was intended to forbid punishment of a barbarous character as the whipping post, the pillory, burning at the stake, breaking on the wheel, dismemberment, mutilation, or punishment in the nature of torture. Some of the authorities intimate that a punishment so disproportionate to the character of the offense for which it is imposed as to shock the conscience and moral senses of the people is cruel and unusual.
The men who participated in state ratifying conventions had only limited knowledge, often disagreed with one another and were only a small subset of America’s overall population in the eighteenth century, raising additional questions as to original intent or original public meaning.
While George Mason drafted the Virginia Declaration of Rights and James Madison helped usher the U.S. Bill of Rights through the First Congress, the ratification process for the U.S. Constitution and its Bill of Rights involved far more than one individual or a group of legislators debating on the same legislative floor. This fact may explain, in part, why originalists made the shift form “intentionalism” to “the original public understanding of the Constitution’s text.”
Jeffrey D. Bukowski, Comment,
The U.S. Constitution required ratification by nine of the thirteen states. Gregory C. Downs,
Josh Blackman, Response,
Originalism, as an academic movement in constitutional interpretation with a popular following, began as a response to the Warren and Burger Courts. Judge Robert Bork contributed to this area by expanding upon Herbert Wechsler’s “neutral principles” approach. In Judge Bork’s view, the judge’s task was to apply “neutral principles” articulated in the Constitution. Originalism was at this point a reactive theory that sought to rein in judicial activism by forcing judicial attention to the original meaning of the Constitution.
Antonin Scalia,
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Roper v. Simmons, 543 U.S. 551, 577 (2005) (noting of “the Eighth Amendment’s own origins”: “The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: ‘[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.’”) (quoting 1 W. & M., ch. 2, § 10,
In 1689, after the Bill of Rights was enacted, Oates petitioned both houses of Parliament for release from judgment. In the House of Lords, “there was not one Lord but thought the Judgments erroneous, and was fully satisfied, That such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted upon an English subject.” Nonetheless, the Lords affirmed the judgment, because they considered Oates to be “so ill a Man.” A minority protested, however, on several grounds, most of which related to the cruel and unprecedented nature of the punishments imposed on Oates. The punishments were “contrary to law and ancient practice.” They were “barbarous, inhuman and unchristian.” There was “no precedent” to support such punishments, and the House of Lords’ decision to affirm them would create a precedent “for giving the like cruel, barbarous and illegal Judgments hereafter.” Finally, the protesters asserted that the punishments imposed on Oates violated the command in the Bill of Rights that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” The House of Commons, however, did pass a bill to release Oates from the judgment. Representatives from Commons then held a free conference with the Lords. Echoing the protesters from the House of Lords, the Commons representatives emphasized the fact that the cruel punishments imposed on Oates were beyond the bounds established by the common law and that affirmance of these punishments would set a precedent for even greater cruelty in the future. It was of “ill example” for a temporal court to exercise ecclesiastical jurisdiction by defrocking a cleric. It was of “ill example, and illegal” to impose a sentence of life imprisonment without express statutory authorization because there was no common law precedent to support such a punishment. It was “of ill example, and unusual” to sentence an Englishman to undergo pillorying four times a year for life. It was “illegal, cruel, and of dangerous example” to impose such a severe whipping on an offender that it would likely result in death. Moreover, the Commons representatives emphasized that Oates’s punishment violated the Cruel and Unusual Punishments Clause in the newly enacted Bill of Rights. The House of Commons had a “particular regard” to Oates’s sentence—among others—when it drafted the prohibition on cruel and unusual punishments. If his punishment were affirmed, this would strip the prohibition of its meaning and eviscerate the “ancient Right of the People of England that they should not be subjected to cruel and unusual Punishments.” As Justice Scalia noted, the primary thrust of the argument that Oates’s punishment was “cruel and unusual” was that it was contrary to precedent. There was “no precedent to warrant” such punishments. They were “contrary to law and ancient practice.” Moreover, if allowed, such punishments would set a bad precedent for the future. They were an “ill example,” a “dangerous example,” and would ultimately be of “pernicious consequence to the People.”
John D. Bessler, ‘None of the punishments inflicted upon Oates amounted to torture. . . . In the context of the Oates’ case, ‘cruel and unusual’ seems to have meant a severe punishment unauthorized by statute and not within the jurisdiction of the court to impose.’ Granucci, ‘Nor Cruel and Unusual Punishments Inflicted:’ The Original Meaning, 57 Calif. L. Rev. 839, 859 (1969). Thus, ‘(t)he irregularity and anomaly of Oates’ treatment was extreme.’ Goldberg & Dershowitz,
501 U.S. 957, 966 (1991).
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MacArthur v. San Juan County, 405 F. Supp.2d 1302, 1316 n.18 (D. Utah 2005). As Chief Justice of England’s Court of Common Pleas, Sir Edward Coke wrote an opinion in
Nathaniel Amann, Note, By the seventeenth century in Britain, the distinction between an amercement and a fine had not yet been eliminated, but it rested on shaky ground. The great Scottish jurist Sir Edward Coke’s seminal work on law, Furthermore, any differences that Coke might have recognized between a fine and an amercement were not reflected in actual English practice of the time. Take the case of Titus Oates, for example. This case appeared before the King’s Bench in 1685 when Mr. Oates was “fine[d] . . . 1000 marks upon each indictment” for his crimes. Even though the court called this a fine, it exhibited the two key qualities of an amercement: it was payable to the king, and it was meant to punish Mr. Oates for his crimes. The court’s own confusion about the distinction between an amercement and fine illustrates the fading distinction between the two.
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Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1332 (11th Cir. 2021) (Tjoflat, J., concurring in part and dissenting in part).
Bessler, In his popular and widely distributed
After the English Bill of Rights was enacted, Oates petitioned both houses of Parliament for a release from the judgment, but the House of Lords rejected the petition. A minority of the Lords dissented, however, stating that “the said judgments are barbarous, inhuman, and unchristian”; “there is no precedent to warrant the punishments of whipping and committing to prison for life, for the crime of perjury”; maintaining the judgment would “be an encouragement and allowance for giving the like cruel, barbarous, and illegal judgments hereafter”; the “judgments were contrary to law and ancient practice, and therefore erroneous, and ought to be reversed”; and the judgments were contrary to Article 10 of the English Bill of Rights. The House of Commons concurred with the dissenting Lords.
Jency Megan Butler, Note, The Eighth Amendment is rooted in British law. The Magna Carta of 1215 purported the idea that punishments should fit their respective crimes. In 1689, the English Bill of Rights was created by Parliament, affirming that “cruel and unusual punishments”
1st, [T]he King’s Bench, being a Temporal Court, made it a Part of the Judgment, That Titus Oates, being a Clerk, should, for his said Perjuries, be divested of his canonical and priestly Habit . . .; which is a Matter wholly out of their Power, belonging to the Ecclesiastical Courts only. 2dly, [S]aid Judgments are barbarous, inhuman, and unchristian; and there is no Precedent to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury; which yet were but Part of the Punishments inflicted upon him. . . . . . 4thly, [T]his will be an Encouragement and Allowance for giving the like cruel, barbarous and illegal Judgments hereafter, unless this Judgment be reversed. 5thly, . . . [T]hat the said Judgments were contrary to Law and ancient Practice, and therefore erroneous, and ought to be reversed. 6thly, Because it is contrary to the Declaration, on the Twelfth of February last, . . . that excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel nor unusual Punishments afflicted.”
Watkins v. United States, 354 U.S. 178, 190 (1957) (“[D]uring the reign of Charles II, there was great unrest over the fact that the heir apparent, James, had embraced Catholicism. Anti-Catholic feeling ran high, spilling over a few years later when the infamous rogue, Titus Oates, inflamed the country with rumors of a ‘Popish Plot’ to murder the King.”).
“‘Worst’ Historical Britons List,” BBC News, Dec. 27, 2005,
Scores of law review articles have been written about the Eighth Amendment and its three clauses.
There is no ready agreement on the original meaning of the Cruel and Unusual Punishments Clause. The article posits that English sources, especially Coke and Blackstone, show that, within the common law tradition, “unusual” meant contrary to long usage, hence the outrage at judicial imposition of sentences unprecedented at common law. But Justice Scalia, after reviewing some of those same sources, concluded that “unusual” could not have had the same meaning in the Eighth Amendment because “[t]here were no common-law punishments in the federal system.” Thus, the Eighth Amendment’s Cruel and Unusual Punishments Clause had to have been “meant as a check not upon judges but upon the Legislature.” So understood, Justice Scalia maintained that the original constitutional meaning of “unusual” in the Eighth Amendment was its common meaning,
John F. Stinneford, The influence of Enlightenment-era philosophy had a tremendous impact in early American law. Any complete study of American legal history includes the philosophies of John Locke, Montesquieu, and Jean-Jacques Rousseau because of their influences on the founders. Any study of the Eighth Amendment’s prohibition against cruel and unusual punishment should not only include an examination of their works, but should also include a study of Francois-Marie Arouet, otherwise known by his pseudonym, Voltaire (1694 -1778). Voltaire not only wrote on the subject of punishments, but had direct contact with some of the nation’s founders, namely Benjamin Franklin and Dr. Benjamin Rush. This article centers on the influences of the Enlightenment through Voltaire on both the framers of American law and on the Eighth Amendment’s prohibition against cruel and unusual punishment.
Stinneford,
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Bessler, “From the Founding to the Present,”
Bessler,
Bessler,
In 1791, five State Constitutions prohibited “cruel or unusual punishments,” see Del. Declaration of Rights, § 16 (1776); Md. Declaration of Rights, Art. XXII (1776); Mass. Declaration of Rights, Art. XXVI (1780); N.C. Declaration of Rights, § X (1776); N.H. Bill of Rights, Art. XXXIII (1784), and two prohibited “cruel” punishments, Pa. Const., Art. IX, § 13 (1790); S.C. Const., Art. IX, § 4 (1790). The new Federal Bill of Rights, however, tracked Virginia’s prohibition of “cruel
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Gregg v. Georgia, 428 U.S. 153, 169 (1976) (“The history of the prohibition of ‘cruel and unusual’ punishment already has been reviewed at length. The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary.”) (citing Granucci,
Donald A. Dripps,
Dripps,
Dripps, To understand the Eighth Amendment, we must look beyond the despicable Oates . . . . We must focus instead on the infamous Judge George Jeffreys, who, in passing sentence on Oates, openly claimed that King’s Bench had inherited the powers of the Star Chamber. The full story thus begins not with the punishment of Oates in the reign of James II, but with the abolition of the Star Chamber in the first days of the Long Parliament, under Charles I, in 1641. The Star Chamber notoriously wielded “a power of punishment extending to all lengths short of the death penalty, and a jurisdiction limited only by its own will.” Parliament abolished this lawless power over noncapital punishments in 1641, and Jeffreys attempted to resurrect it in 1685.
The cruel-and-unusual punishments clause is in fact an umbrella term covering two distinct concepts. First, it incorporates an
Glass v. Louisiana, 471 U.S. 1080, 1084 (1985) (Brennan, J., dissenting from denial of cert.; joined by Justice Marshall) (citations omitted).
On June 8, 1789, in seeking the addition to the U.S. Constitution of a federal bill of rights, James Madison fulfilled the pledge he’d made to Virginians while campaigning for a seat in the U.S. House of Representatives. In his speech to the House of Representatives, Madison introduced each of his proposed amendments, moving that “a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States . . . .” A It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those where were opposed to it, that they were as sincerely devote to liberty and a republic government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community an apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.
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William J. Brennan, Jr.,
Joseph L. Hoffmann,
As Livermore’s comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered ‘cruel and unusual’ at the time. The ‘import’ of the Clause is, indeed, ‘indefinite,’ and for good reason. A constitutional provision ‘is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.’
Hudson v. McMillian, 503 U.S. 1 (1992) (noting that the Eighth Amendment’s prohibition of cruel and unusual punishments “‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society’”; “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.”); Farmer v. Brennan, 511 U.S. 825 (1994) (to show an Eighth Amendment violation, a prisoner must show that a defendant acted with “deliberate indifference”);
Estelle v. Gamble, 429 U.S. 97, 102 (1976) (“[T]he primary concern of the drafters was to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of punishment. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment.”) (citations omitted);
Joshua Liester, Student Article,
There are currently twenty-seven American states that authorize the death penalty along with the U.S. Government and the U.S. Military.
Leah Haberman, Furman’s
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Even in this their extremity, they secured an interest in the besieging army, and Venetians were found sufficiently blinded by the love of gain to hold treacherous communication with the falling Princes. By means of billets fastened to the heads of arrows, and shot within the walls, intelligence was daily forwarded to them. The traitors were discovered; two of them were Priests; and as if in imitation, or in refinement upon that death of lingering horror which the Romans inflicted, when called to punish those whom they esteemed the most holy among their Ministers of Religion, these miserable criminals, having been conveyed to Venice, were buried alive, with their heads downwards, between the fatal Columns.
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Even in this their extremity, they secured an interest in the besieging army, and Venetians were found sufficiently blinded by the love of gain to hold treacherous communication with the falling Princes. By means of billets fastened to the heads of arrows, and shot within the walls, intelligence was daily forwarded to them. The traitors were discovered; two of them were Priests; and as if in imitation, or in refinement upon that death of lingering horror which the Romans inflicted, when called to punish those whom they esteemed the most holy among their Ministers of Religion, these miserable criminals, having been conveyed to Venice, were buried alive, with their heads downwards, between the fatal Columns.
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The “two magnificent granite Columns” adorning “the
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Another historical account says this of the siege of Padua and the punishment of the discovered traitors: Although reduced to so great an extremity, and without hope of deliverance, Francesco da Carrara found friends in the Venetian camp, who were willing to aid him by conveying intelligence to him at the risk of the sure punishment which would be inflicted should they be discovered. The means they employed to send their communications were somewhat curious. Notes were fastened to the heads of arrows and shot into Padua. These traitors in the Venetian camp were found out; two of them were priests, and their punishment far exceeded their crime. Being sent to Venice, they were buried alive, their heads downwards, between the Red Columns.
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E The son of the politician Thomas Lewknor (c. 1538–96), Lewes Lewknor (c. 1560–1627) entered the Middle Temple in 1579. The following year, however, he found himself forced to leave the country due to his Catholicism, and sought refuge in the Netherlands. He then earned a captaincy in Spanish service, but his military career appears to have been cut short by a serious arm injury. Severe financial problems ensued, due to the loss of his pension and litigation over his wife’s dowry. These difficulties eventually forced Lewkenor to return to England, seeking a safe conduct through his relative Sir Robert Sidney in 1590. On returning to England he reported to Burghley on the English in Spanish service, and is generally accepted as the author of
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Thompson v. Oklahoma, 487 U.S. 815, 823 (1988) (“whether an action is ‘unusual’ depends, in common usage, upon the frequency of its occurrence or the magnitude of its acceptance”);
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Charles H. Haskins, Burying alive has always been a common form of the capital penalty among savage races, some of whom inflict it for no more grave offence than the involuntary one of growing old. Among the Romans it was applied to Vestals who had violated their vows of chastity. In France it was reserved principally for women, who frequently suffered for quite trivial offences. Thus, in 1302, by order of the Bailli of Sainte-Geneviève, a woman was buried alive for some petty thefts. A French historian relates that Philip Augustus put to death after this manner a provost of Paris who had committed perjury respecting a transaction in vineyards. In the thirteenth century, in the district of the Bigorre, it was customary to inter the murderer with the corpse of his victim.
Bret Boyce,
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Long before the Framers crafted the Eighth Amendment, there was little restraint on a government’s ability to punish its citizens. In particular, early foreign governments employed a variety of punishments ranging from those intended to induce death to those that caused great pain and suffering. Popular forms of punishment included drowning, burying alive, hanging, drawing and quartering, mutilation, flaying, the wheel, the rack, scourging, blinding, cutting off the ears, plucking of the hair and multiple sentencing. Early commentators warned of the dangers of governmental imposition of such cruel and severe punishments.
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[M]ost commentators believe that the drafters of the Virginia Bill of Rights—from which the Eighth Amendment derived—misunderstood this English history and instead understood the prohibition on cruel and unusual punishments to ban barbarous methods of punishments. The commentators apparently reached this conclusion from the scant drafting and ratification history surrounding the Eighth Amendment, as well as from writings at the time condemning torturous punishment methods.
In re Kemmler, 136 U.S. 436, 446 (1890);
Bucklew v. Precythe, 587 U.S. 119 (2019) (rejecting challenge to use of injected chemicals to execute a condemned prisoner); Glossip v. Gross, 576 U.S. 863 (2015) (same); Baze v. Rees, 553 U.S. 35 (2008) (same); In re Kemmler, 136 U.S. 436 (1890) (upholding execution by electric chair); Wilkerson v. Utah, 99 U.S. 130 (1879) upholding constitutionality of firing squad).
First, nineteenth-century American legislatures used, in a range of statutes regulating punishment, the phrase “cruel and unusual” divorced from its historic linkage to excessiveness in bail and fines. Second, the era was one of strengthening societal consensus against methods of punishment that inflicted acute physical suffering. Influenced by cases in which they had interpreted the phrase “cruel and unusual punishments” without having to account for its relation to prohibitions of excessiveness in bail and fines, courts naturally rode the zeitgeist of penological reform and held the phrase to condemn vicious methods of punishment. Such methods had mostly fallen into disuse and were contemporaneously being repealed from the statute books if they had not been already, so could plausibly be called unusual. Leading nineteenth-century cases that accorded the phrase a “vicious methods” connotation did so in the course of explaining why the prohibition had not been violated—that is, in the course of dismissing what were essentially discrimination or disproportionality claims. The prohibition of “cruel and unusual punishments” that restricts state governments through the Fourteenth Amendment might for this reason be held to prohibit both invidious discrimination
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Gorman,
Roderick Oxford, Noting the connection between the Virginia Declaration of Rights and English Bill of Rights, legal historians have attempted to determine the type of punishments which the English Parliament attempted to prohibit and to derive the intentions of the American drafters from those of their forefathers. Most historians point to the treason trials of 1685, known as the “Bloody Assize,” which followed the rebellion against King James II and the subsequent capture and execution of the Duke of Monmouth. At the time of the Bloody Assize, the penalty for treason included “drawing the condemned man by cart to the gallows, where he was hanged by the neck, cut down while still alive, disemboweled with his bowels burnt before him, then beheaded and quartered.” Despite the passage of the English Bill of Rights in 1689, female felons were burned to death until the penalty was repealed in 1790; drawing and quartering continued until prohibited by statute in 1814; and beheading and quartering was allowed until 1870.
The English Parliament and the framers of our Constitution in this country used the language cruel and unusual punishment as a description of some of the punishment inflicted in the days of the early development of our law, such as burning at the stake, crucifixion, breaking on the wheel, draw and quartering, disembowelment alive, torture on the rack and other types of barbaric treatment. This language had a definite meaning and purpose when placed in the Constitution and in our opinion it does not eliminate the death penalty when the legislative body still sees fit to fix the same as a penalty in certain heinous crimes.
Owens v. Stirling, 904 S.E.2d 580, 638 (S.C. 2024) (Kittredge, J., concurring in part) (“[A]lthough employed in the colonial era, brutal punishments historically used in England such as burning at the stake, drawing and quartering, and disembowelment fell out of use in the colonies by the middle of the eighteenth century . . . .”). Only over time did jurisdictions abandon corporal punishments.
Claus,
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George Wither’s literary career dates back to the reign of James I. His first major success was Although Cromwell may have been satisfied with Wither in 1655, the poet’s support for his patron was conditional. Wither’s . . . God had removed kings from England, and Wither was angered that some MPs desired to restore a government that had kept England in “bondage.” . . . Both Wither and the sects viewed the resurrection of kingship as defying God’s providence; however, Wither was keen to distance himself from the radical sects. . . . In 1657, after the kingship crisis, Wither produced another Cromwellian poem entitled . . . . . . . . George Wither could support Cromwell’s monarchical power, but only if he retained the title and behavior of a lord protector. His interpretation of Cromwell’s reasons for refusing the crown was closer to Cromwell’s actual words than any other Cromwellian writer, suggesting that he either saw copies of the kingship speeches or had a profound understanding of the lord protector’s mind.
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One description of George Wither’s There are at least two editions of these celebrated Satires, &c. dated 1613. This is the first, and, although the text is substantially the same in both, they differ in several particulars. In the first edition, (besides literal variations) “The Scourge” and “Epigrams” are not mentioned on the title-page, and after “The Contents” is inserted a long list of Errata, which are corrected in the second impression. The separate satires also are called “Chapters” in the first edition, and differently numbered, as “The Occasion,” “An Introduction,” and a poem “of Man,” are included. It has been said, (British Bibliogr. I. 180) that there was an impression in 1611; and, although no copy of that date has been discovered, circumstances, which it is not necessary to detail, seem to render it probable. The work was again published in 1614, 1615, 1617, 1622, 1626, and 1633, and no one of those re-impressions was exactly like any other that preceded it. The copy of 1617 has an additional poem, with a wood-cut of a Satire prefixed to “the Scourge.”
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George Wither’s satire remained in libraries for many decades to come.
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M Before his stage is strewn with the dead, Davenant has relieved the bloodshed with some desirable touches of comedy. The least successful of these, however, is Castruccio, a satirical Courtier, whose prototype has already been drawn in the person of Grimold. According to Davenant’s editors this caustic gentlemen is meant to satirize George Wither, their theory being based on a speech in the play that obviously alludes to Wither’s work
The “brazen bull” was a horrifying method of execution in ancient times. In 70 BC, Cicero (
G Phalaris (died
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S Despite his advanced age, the prolific poet and pamphleteer George Wither (1588–1667) had no intention of retiring from writing at the Restoration. Perhaps the century’s most productive writer, in terms of number of words, Wither had come close to attaining an influential political role at various points in his career. But ultimately nearly every seventeenth-century government had found his plain-speaking advice either unwelcome at best or seditious at worst, and imprisoned him. Wither was aware of the correlation between his verbosity and the length of his imprisonments, but he refused to lay down his pen and was a permanent literary presence: the only years in which he did not publish were years of extremely tight censorship. Frequently ridiculed by other writers for his verbosity, judging by the number of published editions many of his titles went through, Wither enjoyed a substantial readership, especially amongst the more radical sections of the population.
Popular unrest seems to have reached a new high point in late 1666. Clarendon said ‘the foulest imputations’ were being directed at the government in the coffee-houses, and Charles conferred with his Privy Council about a ban, but in the end they decided to keep them open because of their tax revenue. On the plus side for the government, George Wither died in the spring of 1667, which must have had the same effect on the public sphere as closing down a dozen coffee-houses. . . . Yet Wither’s death did not put an end to his influence. Wither’s works enjoyed a readership in the immediate years after his death, and booksellers continued to hold copies. A long-held misattribution that he was the author of the anonymous anti-government satire
Ira Cohen, [I]n 1653, Cromwell led his troops to Westminster and dramatically dissolved Parliament. For the next six years he ruled England as a military dictator, including fifteen months of strict military rule in 1655 through 1657. When Oliver Cromwell’s feckless son Richard became Lord Protector after Oliver’s death, the army removed him, reinstalled the Rump Parliament (1659)—and then, when the Rump annoyed the army, dissolved Parliament again, leading within a year to the restoration of monarchy.
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On Monday, December 22, 1656, it has been reported, “
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In addition to excerpts from George Wither’s
Frederick D. Rapone, Jr.,
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In writing the To make the laws accessible, they were to be read each year at the county courts. In order to educate the people further—and in response to concerns raised that the judges did not know enough law—Penn requested William Bradford, the colony’s only printer, to prepare a pamphlet that included excerpts from key documents of English liberties. The result was a 67-page pamphlet entitled
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Tis true, the Law itself affirms,
Brophy, Penn’s writings demonstrate his facility with common law arguments. His tracts written in the 1670s and 1680s urging religious toleration relied heavily upon Coke for arguments based on English history to establish the importance of respect for property and liberty. Moreover, in the late 1680s, Penn prepared a pamphlet, which was published by William Bradford in Philadelphia,
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Judith L. Maute,
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Stephen Clucas & Rosalind Davies, “Introduction,”
Rachel Ellenberger,
Richard J. Ross,
Gage v. Gage, 29 A. 543, 549 (N.H. 1890) (quoting 4 Reeve, Eng. Law, 120);
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John Spalding Gatton,
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James Hart,
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The Millenary Petition (1603),
Norman B. Smith,
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Steve Bachmann,
Bachmann,
Laura R. Ford,
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 395 (2011);
Liam Seamus O’Melinn, Note,
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Paul Finkelman,
Daniel L. Vande Zande,
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Nathaniel A. Earle, “This Court Doth Keep All England in Quiet”: Star Chamber and Public Expression in Prerevolutionary England, 1625–1641, M.A. Thesis, Graduate School of Clemson University (Aug. 2018),
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Vande Zande,
Vande Zande,
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Dripps,
“Observations upon [Thomas Pownall],
“To James Madison from John Blair Smith, 21 June 1784,”
Negrich v. Hohn, 246 F. Supp. 173, 175 (W.D. Pa. 1965) (citing 3 How. State Trials 561, 711, 735; Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879);
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“The Levellers were seventeenth-century English radicals who favored legal and political equality, religious tolerance, and natural rights. Levellers were prominent participants in the English Civil War . . . .” Howard Schweber,
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Goldberg v. Kelly, 397 U.S. 254, 273 n.2 (1970) (Black, J., dissenting) (“The goal of a written constitution with fixed limits on governmental power had long been desired. Prior to our colonial constitutions, the closest man had come to realizing this goal was the political movement of the Levellers in England in the 1640’s. In 1647 the Levellers proposed the adoption of
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For one account of the Star Chamber’s treatment of John Lilburne, see Laurence A. Benner,
“From the pillory,” one scholar writes of Lilburne, “his ‘preaching’ (as a lawyer termed it), quoting dozens of Bible verses, supported the separatist Puritan movement, called for repentance and salvation based on God’s ‘sacred Book,’ urged spiritual warfare as ‘soldiers of Jesus Christ’ using ‘spiritual armour,’ and professed to be brought to the pillory by ‘Divine Providence’ in order to deliver that message.” B
John Rees, “Introduction: John Lilburne, the Levellers, and the English Revolution,”
Dripps,
Morris Ploscowe,
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The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Many scholars attribute the origin of this right to the Framers’ antipathy to two European and English abuses: judicial torture . . . and the ex officio questioning of witnesses before the courts of the High Commission and the Star Chamber.
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Anthony X. Mcdermott & H. Mitchell Caldwell,
Asherman v. Meachum, 957 F.2d 978, 990 (2d Cir. 1992) (Cardamone, C.J., dissenting); Isaac Amon,
Robb A. McDaniel, “The Self-Incriminator: John Lilburne, the Star Chamber, and the English Origins of American Liberty,”
Jeffrey M. Feldman & Stuart A. Ollanik,
George W. O’Reilly,
While there are earlier references, the privilege against self-incrimination is most often traced to the English Court of Star Chamber. In that court, individuals, who stood accused of crimes were given the choice of taking their legal oath or of being whipped and pilloried. In 1637, “Freeborn John” Lilburne was haled before the Star Chamber on a charge of sedition. When charged by the Council, he refused to take the oath officio and was condemned to torture. But Lilburne was a stubborn man and petitioned the newly convened Long Parliament for relief. In 1641, the House of Commons freed Lilburne and abolished the Council and Court of Star Chamber. Thirty-six years after the House of Common’s decree, the Virginia House of Burgess declared that “noe law can compell a man to sweare against himselfe in any matter wherein he is lyable to corporall punishment.” Yet as the Salem witch trials of 1692 so sadly proclaimed, the privilege was far from ingrained in the colonial fabric. Mindful of the Star Chamber and of the incidents at Salem, by 1776, eight colonies had adopted the right to remain silent within their own constitutions. And when the Bill of Rights was ratified in 1791, it included James Madison’s draft that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” In 1964, the privilege was incorporated to the states by way of the Fourteenth Amendment.
Aaron R. Pettit, Comment,
Karen M. Brindisi, Comment,
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De Luna v. United States, 308 F.2d 140, 146–48 (5th Cir. 1962): It may be historically true, and Professor Wigmore documents it, that in the first few hundred years of its growth the resistance to the oath ex officio as compulsory self-accusation represented mainly a jurisdictional struggle between State and Church, and between common law courts and ecclesiastical courts; it was ‘not to protect from answers in the king’s court of justice’. But the struggle against the inquisitio and oath ex officio on the ground that a man is entitled to be formally accused eventually transcended the jurisdictional questions. It may be that Sir Edward Coke, the first to use the maxim,
Jan Martin Rybnicek, The most famous of the trials credited with the creation of the right against self-incrimination was that of John Lilburn, who directly challenged the Star Chamber in 1637 after being charged with printing heretical and seditious books. Lilburn refused to participate in the Star Chamber, arguing “[t]hat no man’s conscience ought to be racked by oaths imposed to answer to questions concerning himself in matters criminal, or pretended to be so.” Ultimately the Star Council held Lilburn in contempt and ordered him to be whipped for his refusal to take the oath. Lilburn’s protest, however, was not in vain. The Lilburn trial spurred public outcry against both the Star Chamber’s and the Court of High Commission’s coercive tactics. By 1641 the steady protest reached a tipping point, leading the Parliament to finally outlaw the Courts’ use of the oath ex officio. The abolition of the oath firmly secured the right against self-incrimination in the English common law and established the maxim
Jeremy Miller,
Harvey Rishikof,
Asherman v. Meachum, 957 F.2d 978, 990 (2d Cir. 1992) (Cardamone, C.J., dissenting); Lilburn’s case, together with those of Prynne and Leighton (whose grievances were of another sort), were sufficiently notorious to focus the attention of London and the whole country. The Long Parliament (after eleven years of no Parliament) met on Nov. 3, 1640. Lilburn was on the spot that day with his petition for redress. In March, 1641, a bill was introduced to abolish the Court of Star Chamber, as well as (then or shortly after) a bill to abolish the Court of High Commission for Ecclesiastical Causes. These were both passed July 2-5 of the same year; and in the latter statute was inserted a clause which forever forbade, for any ecclesiastical court, the administration
Angela Roxas,
Ryan McLennan,
Asherman v. Meachum, 957 F.2d 978, 990 (2d Cir. 1992) (Cardamone, C.J., dissenting).
“John Lilburne, the Levellers, and the English Revolution,” in J
Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay.
Robert E. Hall,
In 1622, King James I issued a proclamation that granted “the Right of his subjects to make their immediate Addresses to him by Petition.” His successor, Charles I, as late as 1644, invited any subjects with grievances to freely address themselves by petitions and promised that their complaints would be heard. John Pym’s speech in the House of Commons in 1640 explained the constitutional necessity of frequent sessions of parliament for providing subjects with an opportunity to present their petitions. Petitions of unprecedented number and size, often accompanied by tumultuous crowds, were laid before parliament. The Root and Branch petition from London, said to have been signed by 15,000 people, was presented in December 1640. The following month, petitions of a similar nature, all asking for abolition of episcopacy, were presented from several districts of the country.
The Grand Remonstrance, Harper’s Encyclopedia of United States History (Benson Lossing, ed.),
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The Grand Remonstrance (1641), Harper’s Encyclopedia of United States History (Benson Lossing, ed.),
That provision was directed against the English experiences that loomed large in the minds of the framers of our government, such as branding, mutilation, and cutting off the ears in Star Chamber. 3 How. State Trials 561, 711, 725. Disembowelment, being drawn and quartered, and all the gory incidents of the punishment for treason in England were banned. Torture, boiling in oil, and other unnecessary forms of cruelty are forbidden.
Negrich v. Hohn, 246 F. Supp. 173, 175 (W.D. Pa. 1965); Historically the prohibition against cruel and unusual punishment in the Eighth Amendment referred to such punishment as amounted to torture, involved unnecessary cruelty or shocked the mind of the community, such, for instance, as drawing and quartering the culprit, burning him at the stake, cutting off his nose, ears or limbs, or disemboweling him. Later it was said that a punishment out of all proportion to the offense might bring it within the prohibition. But it is now established that, apart from historical precedent, what constitutes cruel and unusual punishment within the prohibition of the Eighth Amendment is to be judged in the light of developing civilization, so that what might not have been cruel and unusual yesterday may well be so today.
Liam Seamus O’Melinn, Note,
Witte, Upon his succession to the throne in 1625, Charles had stepped up his father’s already stern Anglican establishment laws and began persecuting Calvinists (often called Puritans) and other religious dissenters with a vengeance, driving them by the boatload to the Netherlands and to America—some 20,000 in 1632 alone. In 1633, he appointed William Laud as Archbishop of Canterbury, who began purging English pulpits of Calvinist sympathizers and packing them with conservative clerics, loyal to the Crown and to the textbooks of established Anglicanism—the Book of Common Prayer, the Thirty-Nine Articles of the Faith, and the Authorized, or King James, Version of the Bible. Charles and Laud strengthened considerably the power and prerogatives of the Anglican bishops and the ecclesiastical courts. They also tried to impose Anglican bishops and establishment laws on Scotland, triggering an expensive and ultimately futile war with the Scottish Presbyterians. English dissenters who criticized these religious policies were pilloried, whipped, and imprisoned, and a few had their ears cut off and were tortured. When the Parliament was finally called in 1640, it let loose a massive torrent of protests, including the famous Root and Branch Petition and The Grand Remonstrance that called for the abolition of much that was considered sound and sacred in the Church and Commonwealth of England.
Robert Aitken & Marily Aitken, One demonstration of how synonymous Gothic had become with English identity is shown by the Scottish reaction to the sight of it in 1637. In that year, Charles I’s infamously tone-deaf Archbishop Laud oversaw the printing of a “crypto-Anglican” prayer book for the Scottish church. The archbishop, who had insisted that England’s 1611 version be in Gothic, arranged for a printer “to repair to Scotland and ready the printing of the book, and to take with a suitable ‘blacke letter”’—a decision “of great metaphorical significance.” The Scottish opposed the efforts of Charles I to “Laudianize” Scotland, preferring their religious works in “Geneva print,” Roman type so-called because of the influential Bible printed in Geneva. (Scotland’s great reformer, John Knox, had studied in Geneva.) When the order came to read Laud’s new prayer book, printed in telltale blackletter, a riot broke out in Edinburgh. This riot triggered a series of events culminating in the downfall of Charles’s government in Scotland during the Bishops’ War. The printer who had been sent up from England “was forced to flee” back across the border.
Richard D. Rosen,
Dividing the grievances in three parts, Pym spoke out against wrongs committed by the Crown against the privileges and liberties of Parliament; wrongs in matters concerning religion; and wrongs in connection with unlawful taxation. Pym condemned in detail extra-parliamentary taxation, including import duties; sales of knighthoods, monopolies, and public nuisances; ship-money; and military charges and impositions upon counties. Parliament refused all supply until its grievances were addressed. The King dissolved Parliament on 5 May 1640, three weeks after it had convened, thus ending the so-called “Short Parliament.”
Speech of John Pym (Parliament, April 17, 1640),
In 1640, the Short Parliament was called by Charles, who hoped Commons would help subdue the Scots. John Pym, who controlled Commons, smothered that hope, and Parliament was dissolved. Charles summoned the English peers, who reluctantly provided a motley army. The Scots easily won at Newburn and marched into England. Charles agreed to an armistice in which the Scottish troops would occupy England’s northern counties and be paid 860 pounds per day until a peace treaty was signed. Charles was humiliated.
Rosen,
1 W The Long Parliament proved quite skillful in its negotiations with Charles I, obtaining his agreement that Parliament would not be dissolved without its consent, as well as an abolition of the Star Chamber and the Court of the High Commission. The Long Parliament was forcibly disbanded by Oliver Cromwell in 1653, with Cromwell then becoming “Lord Protector”: king in all but name. The Long Parliament was reinstated in 1659, but dissolved itself in 1660, leading to the Convention Parliament and the restoration under Charles I’s eldest son, Charles II.
Matthew Steilen, In the spring of 1641, Thomas Wentworth, earl of Strafford, was impeached, attainted, and put to death. Wentworth had enjoyed a remarkable career. In 1628 he had supported the Petition of Right as a member of Commons. Shortly after, he famously switched sides and entered royal service; the King made him Lord Deputy of Ireland, where he developed a reputation for being harsh and autocratic. It was Strafford’s service in Ireland that became the focus of articles of impeachment against him, but probably more important was a general sense that he sought “to reject legal restrictions, and consequently to obviate the need to secure other people’s co-operation for his actions.”
Rosen, We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating: ‘Another fundamental right I then contended for, was, that no man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.’ On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty.
In July, 1641, Parliament abolished the Court of the Star Chamber, the Court of High Commission for Ecclesiastical Causes, and provided by statute that no ecclesiastical court could thereafter administer an ex-officio oath on penal matters. In 1645 the House of Lords set aside Lilburn’s sentence and in 1648 Lilburn was granted 3000 reparation for the whipping which he had received.
Craig S. Lerner,
Bowman,
Timothy D. Lanzendorfer, Note, Although the Lords referred sundry matters to committees, the function of hearing and trial was never delegated, and with good reason. The notable impeachments were chiefly treason trials involving peers, and the trial of a great nobleman “for blood” could scarcely be shunted to a Committee, let alone to a “Master.” Conviction would be followed by death, fine or imprisonment, and although the governing law was the “course of parliament” rather than ordinary criminal law, English impeachment was therefore clearly criminal in nature. Said Blackstone, “The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords.”
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Nicholas Robert Charles Forward, The Arrest and Trial of Archbishop William Laud, Master of Philosophy thesis, University of Birmingham, Department of Modern History (Mar. 2012), pp. 27–28 (noting that Bastwick was “tried and found guilty in Star Chamber and consequently fined, pilloried, imprisoned, and suffered the abscission of his ears”; that “Laud was seen as responsible for securing the prosecution and sentence against Bastwick, a sentence described as especially cruel, and harsher than that given to ‘Turkes and heathens’”; that “[s]imilar accusations were brought by Prynne who also believed that Laud led the campaign, through legal action in the High Commission, to sentence him to mutilation, the pillory, a fine, and life imprisonment”; that in Prynne’s petition “he denounced the ‘malicious Practices’ of Laud” and that “[t]he Commons committee assessing Prynne’s claims, on 15 December, came to the same conclusion that Laud was personally involved”; and that “Burton also pointed towards Laud for the treatment that he received”).
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As Edward Rossingham’s extended account reads: Bastwick said they had collar days in the king’s court, and this was his collar day in the king’s palace; he was pleasant and witty all the time. Mr. Burton said it was the happiest pulpit he had ever preached in. After two hours the hangman began to cut off their ears; he began with Mr. Burton’s. There were very many people; they wept and grieved for Mr. Burton, and at the cutting of each ear there was such a roaring as if every one of them had at the same instant lost an ear. Bastwick gave the hangman a knife, and taught him to cut off his ears quickly and very close, that he might come there no more. The hangman burnt Prynne in both cheeks and, as I hear, because he burnt one cheek with a letter the wrong way he burnt that again. Presently a surgeon clapped on a plaster to take out the fire. The hangman hewed off Prynne’s ears very scurvily, which put him to much pain, and after he stood long in the pillory before his head could be got out, but that was a chance. The reason why Prynne was so ill used by the hangman was he promised him five pieces to use him kindly the time before, which he did, and Prynne had given him but half a crown, in five sixpences. But now the hangman was quit with him, for it is said that Prynne fainted in the pillory after the execution; the cause was his standing in the pillory so long after. The humours of the people were various, some wept, some laughed, and some were very reserved. . . . Saturday all the town was full of it that Mr. Prynne was dead, found dead upon his knees with his hand lift[ed] up to heaven, but there was no such thing, for I hear he was not sick.
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Yet another contemporaneous account, by Reverend George Gerrard in a 1637 communication to Thomas Wentworth (or Lord Strafford), is found elsewhere. In the palace-yard two pillories were erected, and there the sentence of the Star Chamber against Burton, Bastwick, and Prynne was executed. They stood two hours in the pillory. The place was full of people, who cried and howled terribly, especially when Burton was cropped. Dr. Bastwick was very merry; his wife, Dr. Poe’s daughter, got on a stool and kissed him. His ears being cut off, she called for them, put them in a clean handkerchief, and carried them away with her. Bastwick told the people the lords had collar-days at court, but this was his collar-day, rejoicing much in it.
“Proceedings against John Bastwick, M.D. Henry Burton, Clerk, and William Prynne, Esq.; for Seditious Libels, in the Court of Star-Chamber, 14 June 1637. 13 Car. I.”,
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“The charge against Dr. John Bastwick, Henry Burton, and William Prynne was ‘writing and publishing seditious, schismatical and libellous Books against the Hierarchy.’” Richard L. Noble,
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In respect of political and economical affairs the King was advised to raise money by the expedient of selling lands in Ireland to adventurers, at so much per acre, in the different provinces. This is the object of the 17 of Charles I., called—The Adventurers Act. In a curious square quarto, “printed in London for Joseph Hunscott, 1642,” and “Published by Authoritie,” and entitled a “Particular Relation of the Present State and Condition of Ireland as it now Stands, manifested by several letters,” &c., &c., the following appears . . . . This pamphlet concludes with a letter to Sir R. King from “Ad. Loftus,” the closing sentence of which is too good to be left in oblivion. “We have indited of treason all the noblemen, gentlemen, and freeholders in the counties of Dublin, Meath, Kildare, and Wickloe, which I hope will be a great advantage to the Crown, and good to this poor kingdom, when these rascals shall be confounded, and honest Protestants planted in their places.” (Ad. Loftus, 14 Feb., 1641.) Than this Act, there could hardly have been invented by his Majesty’s greatest enemy a more certain method of injuring his friends, of strengthening his foes, and of ultimately ruining the Royal cause in Ireland. Also an idea was long cherished that as Queen Elizabeth had settled Munster, and King James Ulster, so Charles must needs settle Connaught. But the difference was this. In the first case Desmond’s rebellion naturally led to a vast forfeiture, and O’Neile’s bloody uprising had left the Crown in absolute mastery of the six counties of the North. Charles I. was to make good the forfeiture and settlement of Connaught by legal chicanery and an unkingly breach of faith . . . .
Alexander C. Linn, Note, In response to the “Flight of the Earls,” James I confiscated all land in northern Ireland and colonized the area with English and Scottish settlers (the Plantation of Ulster) in an attempt to extend the industry, character, and loyalty of the English settlers to the Irish. As a result of the Plantation, continued English immigration to the Province, and the birth of new generations, the majority of the Ulster population was English (Anglo-Irish) by 1641. Unionist Thomas Sinclair later noted the lasting effect of the Plantation in 1912, stating: “[W]e Ulster Unionists who inhabit the province to-day [sic], or at least the greater number of us, are descendants of these settlers. The overwhelming majority are passionately loyal to the British Throne and to the maintenance of the integrity of the Union.”
Janet Sinder,
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Charles J. Reid, Jr., Charles’s “personal rule” proved to be a disaster both for the nation and for Charles personally. Charles surrounded himself with figures—such as Archbishop William Laud—who were widely unpopular, and he proceeded to try to avoid the requirement that Parliament approve new requests for taxes by extracting as much revenue as possible from those sources traditionally available to the monarch. By 1640, however, Charles’s circumstances had grown desperate. Three years earlier, Scotland had rebelled against Charles’s religious policies and raised an army with the intention of going to war with England. Charles responded first by borrowing money and then by seizing the assets of the wealthiest business in England, the East India Company, but when these expedients failed he found that he had no other course but to reconvene Parliament. And so in 1640 what later became known as the Long Parliament was convened. Parliament immediately commenced to assert its rights against the King and prepared a set of grievances known as the Grand Remonstrance, which was issued in November, 1641. Parliament also began to take action against the king’s closest ministers, causing the Earl of Strafford to be executed and Archbishop Laud to be arrested. In the midst of this constitutional struggle, the Irish rebelled. Parliament feared that if the militia were called up to meet the Irish threat it might used to crush parliamentary independence and so enacted in early 1642 a Militia Bill placing command of the armed forces under parliamentary control. Charles rejected the Bill, but Parliament responded by making it an ordinance of the realm. Charles “ordered the people by proclamation to disobey the ordinance of Parliament” but “both houses of Parliament declared that their ordinance must be obeyed.” Parliament also asserted ever more vigorously an even broader array of rights against the Crown. A set of Nineteen Propositions, which aimed at restricting the royal prerogative in a variety of ways, were enacted and forwarded to Charles. Acceptance of these propositions “would have left [Charles] a puppet king,” and this was not a result Charles desired. Charles would go to war rather than sacrifice those parts of the royal prerogative demanded by the Nineteen Propositions. Civil war broke out in August, 1642.
Charles J. Reid, Jr., Things began to turn badly for Charles beginning in 1645, with the organizing by Parliament of the “New Model Army” under the command of Oliver Cromwell. The purpose of the Army was to provide “a more speedy, vigorous, and effectual prosecution of the war,” and it succeeded in this task, defeating Charles’s forces in several important engagements. Charles surrendered to the Scots in 1646, hoping that he might thereby set the Scots off against the parliamentary army, but his hopes would prove illusory and he soon found himself kidnapped by the parliamentarians in the summer of 1647. He escaped that November, but was quickly taken prisoner once again. Parliament decided to place Charles on trial for treason against the realm. Charles refused to answer the charges directly and defended himself by arguing that the court lacked jurisdiction. In the event, Charles was found guilty and executed in January, 1649.
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2 D Half the realm was found to belong to his Majesty, as his ancient demesne and inheritance, upon old, feigned titles of 300 years past by juries against law, their evidence, and conscience, who were corrupted to find the said titles, upon promise of part of those lands so found for the king or other rewards; or else drawn thereto by threats of the judges in the circuit, or heavy fines, mulcts, and censures of pillory, sty-marking, and other cruel and unusual punishments.
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As one history of Ireland describes Lord Deputy Thomas Wentworth’s actions during the reign of King Charles I: The lord-lieutenant . . . put in execution the famous project of the wholesale confiscation and “plantation” of Connaught, which had been planned by the preceding monarch. Pledging himself to Charles that he would immediately reduce Connaught to the absolute possession of the crown, he at once proceeded to make good his word. He called together packed juries, who were terrified or bribed into obedience to his commands, and were ready to find verdicts in favour of the crown. The jurors who refused to give a favourable verdict, were heavily fined, and imprisoned for long periods. “Sometimes,” says the Commons’ Journals, “they were pilloried with loss of ears, and bored through the tongue, and sometimes marked in the forehead with a hot iron, and other infamous punishments.” This plan was found effective in Roscommon, Leitrim, Mayo, and Sligo, the greater part of which counties were confiscated to royal uses. Opposition was offered in Galway, where the jurors imagined they would have the protection of the powerful Earl of Clanricarde. But Wentworth soon bore down their opposition with a tyrant hand. Immediately on the jurors refusing to find for the crown, as in the preceding cases, they were fined £4,000 each; the sheriff who had selected them was also fined £1,000.; and the Earl of Clanricarde received a heavy reprimand from the court, and otherwise suffered severely. This “just severity,” as it was called by Wentworth, was expected to “make all the succeeding plantations pass with the greatest quietness that could be desired.”
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Bradley J. Nicholson, The custom of branding on the face or shoulder of a runaway servant or rogue was common in England, and was at least as common in the colonies. One seventeenth-century English statute provided that, in order for an incorrigible or dangerous rogue to be identified, he should be branded in the left shoulder with a hot iron with the letter “R.” Slaves in Virginia were similarly punished. For an unsuccessful escape, one court ordered “Emanuel the Negro to receive thirty stripes and to be burnt in the cheek with the letter R and to work in shakle one year or more as his master shall see cause.” In Barbados, a slave’s penalty for the second offense of striking a “Christian,” i.e., a European, was to “bee severely whipped his nose slit and bee burned in the face,” where such burning presumably involved some letter signifying the crime.
T Depending on the particular historical context, branding varied both in its form and location on the body. The French branded criminals with the royal emblem on the shoulder. This practice was later changed to the burning of a letter on the shoulder to represent the convicted offense. Facial branding in England was replaced with hand branding around the early 1700s. The early American colonists also burned particular letters on offenders’ hands and forehead. Facial branding was more often imposed on more serious offenses at this time (e.g., blasphemy) and for repeat offenders. Rather than being physically branded, female offenders were forced to wear letters symbolizing their crimes on their clothing. This practice of sewing letters on garments of criminals was called the “scarlet letter.”
Daniel E. Hall, Mutilation was another example of early punishment used in England and administered in the colonies. There were three classes of punitive mutilation. First, where the punishment mirrored the crime committed, the
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J A new instrument of oppression was . . . invented—“the Commission for the Discovery of Defective Titles.” At the head of this Commission was placed Sir William Parsons, the Surveyor-General, who had come into the kingdom in a menial situation, and had, through a long half century of guile and cruelty, contributed as much to the destruction of its inhabitants, by the perversion of law, as any armed conqueror could have done by the edge of the sword. Ulster being already applotted, and Muster undergoing the manipulation of the new Earl of Cork, there remained as a field for the Parsons Commission only the Midland Counties and Connaught. A horde of clerkly spies were employed under the name of “Discoverers,” to ransack old Irish tenures in the archives of Dublin and London, with such good success, that in a very short time 66,000 acres in Wicklow, and 385,000 acres in Leitrim, Longford, and Meaths, and King’s and Queen’s Counties, were “found by inquisition to be vested in the Crown.” The means employed by the Commissioners, in some cases, to elicit such evidence as they required, were of the most revolting description. In the Wicklow case, courts-martial were held, before which unwilling witnesses were tried on the charge of treason, and some actually put to death. Archer, one of the number, had his flesh burned with red hot iron, and was placed on a gridiron over a charcoal fire, till he offered to testify anything that was necessary. Yet on evidence so obtained whole baronies and counties were declared forfeited to the Crown.
The punishments imposed in the Court of Castle Chamber escalated over time.
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Robert W. Emerson & John W. Hardwicke,
Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1333 (11th Cir. 2021) (Tjoflat, J., concurring in part and dissenting in part) (quoting 4 W
James Tait,
Tim Donaldson, The right to be free from excessive fines did not originate in the 1689 bill of rights, which “was only declaratory, throughout, of the old constitutional law of the land.” The prohibition against excessive fines comes from common law principles that pre-date Magna Carta. Those principles provided that a subject could be amerced (i.e., assessed a financial penalty) for erecting a building that encroached upon royal land, but that the subject should be amerced “so as not to lose any property necessary to maintain his position.” Magna Carta confirmed in 1215 that “[a] freeman shall be amerced for a small offence only according to the degree of the offence; and for a grave offence he shall be amerced according to the gravity of the offence, saving his contenement.” Magna Carta therefore formally recognized a
Tim Donaldson,
The Case of William Earl of Devonshire, 11 How. St. Tr. 1353, 1370 (H.L. 1689).
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On 12 May, the commons sought from the lords an answer to the Queries which the judges were to review. The commons apparently planned a public demonstration against the indicted officials . . . . The lords justices feared the intent of parliament to proceed ‘capitally’ against the two judges and the bishop, explaining they doubted the validity of precedent for this, and seeking advice from England.
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The parliamentary advocate, John Pym, adroitly manipulated the commons into a full hearing on the tyranny of Strafford in April 1641 so that the impeachment trial was superseded by a bill of attainder, accusing Strafford of treason. Pym employed many witnesses from Ireland, including Strafford’s enemies Mountnorris, Cork, Roebuck Lynch and Charles Wilmot. This proceeding was rapidly concluded on 21 April, after which the lords approved the act of attainder on 8 May and sent it to the king for the royal signature, requiring the execution of Charles I’s closest personal advisor. Signed by the king on 10 May 1641, the act of attainder was duly enforced the following day when Strafford was executed on Tower Hill.
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The Court of Castle Chamber was thus only a court in theory; in practice it was an instrument at the full disposal of the lord deputy, particularly after the fall of Mountnorris in 1635. It ceased to be used against the recusants as a body and was in the main directed at those who ventured to oppose in any way the policies of the lord deputy.
The Court of Castle Chamber lay at the heart of Wentworth’s administration, making the rule of ‘thorough’ possible. It became the instrument of a despotism as severe as that of Richelieu in providing an arbitrary sanction for every act and organ of the administration.
O’Bryant v. Adams, 123 N.E.3d 689, 693 (Ind. 2019); Smith v. State, No. 21, 2021 WL 5919473, *1 n.5 (Md. Ct. Spec. App. Dec. 15, 2021); The doctrine of
The Our reading of the text is supported by tried-and-true tools of statutory interpretation—
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Abbe R. Gluck, On the origins of On the origins of
While the words of a constitutional limitation are, for obvious reasons, to be taken in their natural and ordinary sense, significance, and import, and regard is to be had to their general and popular usage, unless terms of art are employed, which are to be given their technical sense, the intent, as we have stated, is not to be collected from any particular expression, but from a general view of the whole clause. It is an established canon of interpretation, in aid of the primary rule adverted to, and applicable alike to all written instruments, that the meaning of words may be indicated or controlled by those with which they are associated. Noscitur a sociis. This maxim, grounded in grammar and firmly established as a rule of exposition since its adoption by Lord Hale, merely embodies and gives specific application to the general principle that the true sense of a particular word or expression is to be gathered from the context. See Hay v. Earl of Coventry, 3 Term R. 83, 86; Bishop v. Elliott, 11 Exch. 113, 10 Exch. 496, 519; Lewis’ Sutherland Statutory Construction (2d Ed.) 414; Dwarris on Statutes, pp. 702, 703. As stated by Lord Bacon, the coupling of words together ordinarily evinces an intention that they are to be understood in the same general sense. Bacon’s Work, vol. 4, p. 26. Under this rule, the natural, ordinary, and general meaning of terms and expressions may be limited, qualified, and specialized by those in immediate association, although it is the intent gathered from the whole context that is to ultimately prevail. Words which, standing alone, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. Coke’s Littleton, 381a; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Cooley’s Constitutional Limitations, pp. 127, 129.
Abbe R. Gluck, For an early invocation of
O’Bryant v. Adams, 123 N.E.3d 689, 693 (Ind. 2019); The statute provides for replacement of necessary furniture and clothing for persons who have suffered the loss of such items ‘as the result of fire, flood or Other like catastrophe’. The loss of those articles to one who has no money with which to replace them might well be deemed a ‘catastrophe’. However, our task is to decide not whether a burglary may, in some instances, be termed a ‘catastrophe’ as that word is generally understood but, rather, what the Legislature and the Social Services Department intended when they used the phrase ‘fire, flood or other like catastrophe’. Having in mind the maxims, Ejusdem generis and Noscitur a sociis, it is difficult to conclude that it was the legislative design to include ‘burglary’ within the covering clause employed. Reasonably construed, the phrase, a ‘like catastrophe’ encompasses only a natural occurrence—and, in the case of a fire, one that is man-made—but a burglary is far too unlike a fire or a flood to be included.
Common law thinkers universally held that common law rights, like the right not to be subjected to cruel and unusual punishments, have their ultimate foundation in natural law. For example, Edward Coke asserted that the “Law of Nature is part of the Law of England.” Coke also asserted that “nothing that is contrarie to reason, is consonant to Law,” and that “reason is the life of the Law, nay the common Law it selfe is nothing else but reason.”
Vicenç Feliú,
[S]anguinary laws are a bad symptom of the distemper in any state. . . . It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure.
Stinneford,
The common law played a key role in the establishment of individual rights in England, including through the efforts of Sir Edward Coke. The common law’s status as a source of fundamental law gave it the potential to limit the arbitrary exercise of state power. Indeed, Coke asserted that the common law—as reflected in Magna Carta and elsewhere—was the source of numerous rights and liberties of citizens, including the right to due process of law, indictment by grand jury, habeas corpus, the right not to be subjected to double jeopardy, and the right to taxation only with the consent of Parliament. Although Coke found the basis for many of these rights in Magna Carta and other ancient statutes, he made clear that these written laws merely affirmed the existence of rights that had already developed through long usage. He described Magna Carta as “but a confirmation or restitution of the Common Law.” Elsewhere, he wrote that “[t]he Common Law appeareth in the Statute of Magna Charta and other ancient Statutes (which for the most part are affirmations of the Common Law) in the originall writs, in judiciall Records, and in our bookes of termes and yeers.”
Americans of the Founding Era were at least as concerned about constraining governmental punishment discretion as were English common law thinkers. They were acutely aware of the historical struggles to constrain this discretion, and were determined not to permit the same abuses that had occurred in England. For example, when England tried to give an Admiralty Court criminal jurisdiction over American colonists, Americans protested that because the Admiralty Court used the civil law procedures, it was comparable to the Court of Star Chamber. As John Adams wrote: “Can you recollect the complaints and clamors, which were sounded with such industry, and supported by such a profusion of learning in law and history, and such invincible reasoning . . . against the Star-Chamber and High Commission, and yet remain an advocate for the newly-formed courts of admiralty in America?”
In America, with its common-law legal heritage, the operative meaning of constitutional texts, like that of statutory texts, evolves over time. Judicial applications of the text to particular controversies build on earlier decisions and in turn are interpreted and reconciled by the creation of constitutional law doctrine that is linked to the originating text in an increasingly genealogical manner. The evolutionary nature of the common law’s dealing with normative instruments was well understood at the time the principles of ’98 were articulated, and some Republicans, Jefferson among them, periodically objected to the conversion of the written Constitution into an evolving system of common law. Other Republicans, from the beginning, accepted the legitimacy of the common law development of the law of the Constitution. Madison, who consistently accepted the authority of settled precedent contrary to his own view of the meaning of the uninterpreted text, believed “that the meaning of a law, and for a like reason, of a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions.” Constitutional interpretation, he reasoned, benefits by “the illustration to be derived from a series of cases actually occurring for adjudication.” The resulting constitutional law, being derived from the authoritative text in a legitimate fashion, shares in the text’s authority. Peter Lyons and Paul Carrington of the Virginia Court of Appeals explained in an 1804 opinion that “written constitutions are, like other instruments, subject to construction; and, when expounded, the exposition, after long acquiescence, becomes, as it were, part of the instrument; and can, no more, be departed from, than that.” In a legal culture shaped by the common law tradition, the Republican emphasis on the text inevitably invited change.
The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded.
[I]t is likely that the framers themselves had every expectation that the particular common law rules of search and seizure in existence in 1791 would eventually change, and there is no evidence that they believed the Reasonableness Clause of the Fourth Amendment would both constitutionalize those rules and freeze them forever as they existed at the time of ratification. Rather, even if the framers did expect the Reasonableness Clause to incorporate common law norms, they understood that common law rules evolve over time. More broadly speaking, numerous authors have argued that the framers themselves expected that future courts would interpret constitutional language through “case-by-case interpretation” and that “they anticipated that departures from their literal language would be occasioned by new and unforeseen circumstances, not by efforts to give effect to their own, unexpressed intentions.”
Christian Behrmann & Jon Yorke, [I]n the drafting debates on the text of the Eight[h] Amendment in 1789, Samuel Livermore of New Hampshire, argued that when punishment technologies, such as through modernized prison systems, were improved by being more humane and effective, there would be no need for the death penalty, when he stated: “It is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.”
For example, in 1963, Justice Arthur Goldberg tried to convince his colleagues of the death penalty’s unconstitutionality by circulating a memo to them.
Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1321 n.4 (11th Cir. 2021) (Newsome, J., concurring) (citing 1 A
“Mr. Livermore,” as the record shows, made these remarks in the debate at the First Congress: No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.
1 A
We know that the Framers’ concern was directed specifically at the exercise of legislative power. They included in the Bill of Rights a prohibition upon ‘cruel and unusual punishments’ precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought ‘cruel and unusual punishments’ were. Certainly they intended to ban torturous punishments, but the available evidence does not support the further conclusion that only torturous punishments were to be outlawed. As Livermore’s comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered ‘cruel and unusual’ at the time.
There is, first, a textual consideration raised by the Bill of Rights itself. The Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections. We can thus infer that the Framers recognized the existence of what was then a common punishment. We cannot, however, make the further inference that they intended to exempt this particular punishment from the express prohibition of the Cruel and Unusual Punishments Clause. Nor is there any indication in the debates on the Clause that a special exception was to be made for death. If anything, the indication is to the contrary, for Livermore specifically mentioned death as a candidate for future proscription under the Clause. Finally, it does not advance analysis to insist that the Framers did not believe that adoption of the Bill of Rights would immediately prevent the infliction of the punishment of death; neither did they believe that it would immediately prevent the infliction of other corporal punishments that, although common at the time, are now acknowledged to be impermissible.
There is some recognition of the fact that a prohibition against cruel and unusual punishments is a flexible prohibition that may change in meaning as the mores of a society change, and that may eventually bar certain punishments not barred when the Constitution was adopted. Ibid. (remarks of Mr. Livermore of New Hampshire). There is also evidence that the general opinion at the time the Eighth Amendment was adopted was that it prohibited every punishment that was not ‘evidently necessary.’ W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793),
Life without parole sentences now far eclipse death sentences.
John D. Bessler,
John Baker, Torture, though certainly used in treason investigations under warrants from the secretary of state or attorney-general, was never acknowledged as lawful by the English courts. Indeed, there was no common-law authority approving it, and the balance of explicit authority was against it, whereas the Civil law treated it as a routine part of criminal procedure: judicial torture was used in Prussia until 1754, and in France until 1780.
Jeremy A. Blumenthal, With the rise of the inquisitorial process in criminal cases, elaborate safeguards developed to protect the defendant. But as the rules of proof (e.g., assigning specific weight to the testimony of various classes of witnesses; forbidding a conviction in the absence of two eyewitnesses or a confession) grew more and more complex, fewer and fewer criminal defendants became eligible for conviction. Accordingly, beginning in the thirteenth century and lasting in various parts of Europe through the middle of the eighteenth century, judicial torture of criminal defendants became more acceptable and more consistently used.
Günter Frankenberg, Torture is widely associated with the dark Middle Ages and characterized as the senseless and indiscriminate application of extreme physical pain and mental agony, directed against whoever was suspected of a crime. It is correct that torture, also referred to as the “painful question,” can be traced back to the medieval administration of justice. Its origins, however, reach back to the Greco-Roman world whence violence in criminal legal procedures accompanied the reception of Roman Law and proliferated since the thirteenth century across Europe, including the Holy Roman Empire of the German Nation. During the first half of the eighteenth century, the extortion of confessions in criminal trials within and without the Inquisition gradually waned.
There were ongoing efforts to abolish torture in continental Europe in the 1770s—efforts that had begun decades earlier.
United States v. Schwarzbaum, No. 22-14058, 2025 WL 271734, *6 (11th Cir. Jan. 23, 2025) (quoting There are several reasons why most scholars adopt the understanding that Article 10 was intended to prevent the reoccurrence of events such as the Popish Plot over the understanding that it was enacted to prevent the reoccurrence of events such as the Bloody Assize. First, the allegedly cruel methods of punishment employed during the Bloody Assize continued in use after the passage of Article 10. Second, the chief prosecutor of the Bloody Assize was a leading member of the committee that drafted the English Bill of Rights, and it is unlikely that he would have drafted a document condemning his own actions. And finally, the Bloody Assize is barely mentioned in the debate regarding the passage of Article 10. Scholars adopting this position that Article 10 was intended to prevent the reoccurrence of events such as the Popish Plot then conclude that Article 10 does not prohibit particular cruel methods of punishment. This is because, first of all, “[n]one of the punishments inflicted upon Oates amounted to torture.” Additionally, life imprisonment was probably not excessive in this case, because a number of innocent people were executed as a result of Oates’s scheme. Further, the 2,000-mark fine may have been excessive and the defrocking unusual, but they were not considered cruel. Accordingly, most scholars conclude that, in the context of the English Bill of Rights, “cruel and unusual” seems to have meant simply “cruel and illegal.” Although most scholars believe, then, that Article 10 was intended to prevent cruel and illegal punishments, they conclude that this meaning was lost on the drafters of the Virginia Declaration of Rights and the Eighth Amendment, who believed that Article 10 was indeed intended to prevent cruel methods of punishment. This belief by scholars is rooted in colonists’ fears of torture and barbarous punishments, which are exhibited in the few statements made by the Framers and Ratifiers regarding cruelty and the Eighth Amendment. This belief also stems from the colonists’ limited access to English legal resources. Of the legal treatises available to the colonists, only Blackstone’s
Roy L. Brooks,
Aaron Schwabach,
Torture was once seen as operating principally upon the body. The law’s prohibition against torture, however, is now understood to bar both physical and psychological forms of torture, with the Third Geneva Convention (1949) barring the “physical or mental torture” of prisoners of war and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) broadly—indeed, absolutely—forbidding torture, “whether physical or mental” in nature. No public emergency, and not even war, or threat of war, can be used to justify torture. Bessler,
John D. Bessler,
Williamjames Hull Hoffer,
U.S. C
U.S. C
Our cases have recognized successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. In so doing, we have explained that “‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’”
Facts about the Death Penalty, Death Penalty Info. Ctr., Feb. 7, 2025 (last visited Feb. 9, 2025).
By contrast, in America’s founding era, the average time spent awaiting execution after sentencing was just a few months. Jacob Leon, Bucklew v. Precythe’s
Carol S. Steiker & Jordan M. Steiker,
18 U.S.C. § 2191. A federal law, passed by Congress and approved on March 3, 1835, provided in part: [I]f any master or other officer, of any American ship or vessel on the high seas . . . shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison any one or more of the crew of such ship or vessel, or withhold from them suitable food or nourishment, or inflict upon them any cruel and unusual punishment, every such person so offending shall, on conviction thereof, be punished by fine, not exceeding one thousand dollars, or by imprisonment not exceeding five years, or by both, according to the nature and aggravation of the offence.
“An Act in amendment of the acts for the punishment of offenses against the United States,” Public Law No. 28, § 3,
18 U.S.C. § 2191.
Reinert,
R
David R. Dow, et al.,
Bessler,
Bessler,
Abner J. Mikva, The phrase “cruel and unusual punishment” was taken from some obscure English manifesto; it had not been used in any previous statute. An opponent in the First Congress complained that the language was so vague that it might subsequently be used to strike down state statutes which ordained “ear-cropping”’ or “capital punishment.”’ Since the proponents of the eighth amendment had the votes, nobody bothered to answer the opponent, and the language was adopted notwithstanding the ambiguity. While Justice Brennan uses the example to advance his position against capital punishment, even the most ardent hanging judge would find ear-cropping a cruel and unusual punishment today. Seeking out the “original intent”’ of the First Congress is hardly a useful quest.
Bessler, “What-Ifs and Missed Opportunities,” in D
Albert Camus, “Reflections on the Guillotine,”