Lost and Found: The Forgotten Origins of the “Cruel and Unusual Punishments” Prohibition

Abstract

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment’s prohibition against “cruel and unusual punishments” to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution’s Eighth Amendment (1791). In 1969, in examining the Eighth Amendment’s “original meaning” in an influential law review article, one legal scholar, Anthony Granucci, traced the history of the English Bill of Rights and the Eighth Amendment. He described the English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship,” concluding that American lawmakers, in adopting that prohibition, misinterpreted “the intent of the drafters of the English Bill of Rights.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

As this Article shows, the U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” terminology. For example, in Gregg v. Georgia (1976), the Supreme Court wrote that the “cruel and unusual punishments” phraseology “first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary.” Relying on Anthony Granucci’s Eighth Amendment scholarship, Justice Thurgood Marshall had previously observed in his concurrence in Furman v. Georgia (1972) that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” While jurists and legal scholars have long assumed that the “cruel and unusual punishments” terminology originated in the late 1680s as part of the so-called “Glorious Revolution” of 1688–1689 that deposed King James II and brought William and Mary to the throne, this Article demonstrates that the conventional account of the origins of that phraseology—spelled “cruell and unusuall punishments” in some early English sources—is woefully incomplete.

The standard account of how that terminology emerged during England’s Revolution of 1688–1689, popularly known as the “Glorious Revolution,” fails to consider long-forgotten, far earlier uses of it. Those usages stretch back as far as the early 1600s, during the reign of King James I (James VI in Scotland), although they initially appear in non-legal contexts in the early 1610s and, later, in two written remonstrances—or protests—of Irish-Catholics in Ireland in the early 1640s. In particular, the early usages of the cruel and unusual punishments phraseology appear in the index and marginalia of a history of Venice, originally written in French by Thomas de Fougasses, translated from French into English by “W. Shute,” and published in London in 1612; in English courtier and poet George Wither’s satire, Abuses Stript, and Whipt, first published in the early 1610s, and then reprinted in a later published collection of Wither’s poetry, Juvenilia; and in two 1642 Irish-Catholic remonstrances—the Ulster Remonstrances—explaining the causes of an Irish rising that began in October 1641. While the relevant references in the Venetian history and Wither’s satirical lines of verse both describe barbaric methods of execution, the references in the 1642 Ulster Remonstrances are associated with non-lethal corporal punishments.

Capital and corporal punishments were once commonly used in England. In addition to horrific methods of execution such as hanging and drawing and quartering and burning at the stake, draconian corporal punishments were inflicted, including on members of the learned professions to chill speech. For example, in the 1630s, at the hands of prerogative courts such as England’s now-notorious Court of Star Chamber and Ireland’s Court of Castle Chamber, religious dissenters and opponents of Stuart rule were subjected to, or threatened with, non-lethal but painful punishments such as the pillory, branding, whipping, and mutilation. During King Charles I’s reign, William Laud, the Archbishop of Canterbury, insisted on strict conformity to Church of England religious practices, and on orders of the Star Chamber, prominent Puritans such as lawyer William Prynne, physician John Bastwick, and clergyman Henry Burton were fined, imprisoned, pilloried, and had their ears cut off for their writings. Adhering to the advice of John Finch, the Chief Justice of England’s Court of Common Pleas, William Prynne—already stripped of his Oxford University degree and expelled from Lincoln’s Inn, the English Inn of Court that had, two decades earlier, admitted George Wither as a member—was also branded on the cheeks with the letters “S.L.” for “seditious libeller.” The Court of Star Chamber and its ecclesiastical equivalent, the Court of High Commission, were both abolished by England’s Parliament in 1641, in part because of these unpopular punishments and the use by those prerogative courts of an inquisitorial procedure known as the oath ex officio. The oath ex officio required someone to answer any questions on pain of contempt and frequently compelled self-incrimination. In the 1630s, that oath had been used against Puritans, and for refusing to take the oath, John Lilburne—a Puritan who later fought on the side of Parliament in the English Civil War and led the Leveller movement—was punished by the Star Chamber and ended up in the pillory.

This Article details the earliest usages of the cruel and unusual punishments terminology and the historical contexts in which those usages appear. In the case of the Ulster Remonstrances, England had colonized Ireland decades before the 1641 Irish rising, with English and Scottish settlers establishing the Plantation of Ulster in 1609 and, over many decades, systematically dispossessing the native Irish of their ancestral lands. The Court of Castle Chamber in Ireland, like England’s Star Chamber, resorted to excessive fines and inhuman and humiliating punishments such as stigmatizing (i.e., branding of the skin) and the pillory. The two 1642 Ulster Remonstrances of Irish-Catholics—drafted in the wake of earlier written objections of Irish-Catholics to Stuart era abuses, including excessive fines, the use of the pillory, and mutilations—specifically complained about “heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments.” That wording resembles language in the Grand Remonstrance passed by England’s Parliament in November 1641, although the Grand Remonstrance—shepherded through Parliament by John Pym, an anti-Catholic English politician who risked his own liberty to oppose tyrannical Stuart practices, with Charles I even attempting to arrest him and other members of Parliament—did not contain the “cruel and unusual punishments” terminology.

The Grand Remonstrance, a list of more than 200 grievances presented to Charles I in early December 1641 after a long period of personal rule (1629–1640) in which Charles I reigned without Parliament, preceded and helped precipitate the English Civil War (1642–1651). That civil war followed considerable Puritan migration to the New World due to religious persecution of those opposing Church of England practices, as well as the adoption of the Massachusetts Body of Liberties (1641) drafted by a law-trained Puritan preacher, Nathaniel Ward, who emigrated to the Massachusetts Bay Colony after being removed from his pulpit in England. The English Civil War eventually led to Charles I’s treason trial and, ultimately, his execution in 1649. The Massachusetts Body of Liberties was the first legal code in New England, and it referred to both torture and cruel punishments. Clause 45 of the Body of Liberties provided in part: “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.” “For bodilie punishments,” its next provision, Clause 46, read, “we allow amongst us none that are inhumane Barbarous or cruell.” Because of the prior appearances of the cruel and unusual punishments terminology as early as the 1610s and in the 1642 Ulster Remonstrances, the use of that terminology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.