A Bill of Rights Is Needed to Prevent Cruel and Unusual Punishment

Patrick Henry

Upon the completion of the initial draft of the U.S. Constitution in 1787, delegates returned home to their respective states; each state then held a convention to discuss whether to adopt this new governmental framework. The largest point of contention at these state conventions was that the document lacked a bill of rights securing individual freedoms. Many states refused to ratify the Constitution without the inclusion of a bill of rights. During the Convention of the Commonwealth of Virginia, Patrick Henry discussed the importance of limiting the power of Congress by including a bill of rights, specifically a clause prohibiting cruel and unusual punishments. Without such a clause, he purported, Congress would have full control to prescribe any number of punishments for even the pettiest of crimes—an amount of power "extremely dangerous to liberty." Obviously, the arguments of Henry and others struck a nerve, as the Constitution was amended with the Bill of Rights that includes a clause restricting punishments. Patrick Henry is one of the most well-known participants in the struggle for American liberty. This three-time governor of Virginia is perhaps best remembered for his famous "Give me liberty or give me death!" speech less than one month before the start of the American Revolutionary War.

Source

Patrick Henry, speech before the Convention of the Commonwealth of Virginia, June 16, 1788.

Primary Source Text

Without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw—a government that has abandoned all its powers—the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights—without check, limitation, or control. And still you have checks and guards; still you keep barriers—pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman. When our government was first instituted in Virginia, we declared the common law of England to be in force.

The Danger of an All-Powerful Congress

That system of law which has been admired, and has protected us and our ancestors, is excluded by that system. Added to this, we [the state of Virginia] adopted a bill of rights. By this [federal] Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? By the ancient common law, the trial of all facts is decided by a jury of impartial men from the immediate vicinage. This paper speaks of different juries from the common law in criminal cases; and in civil controversies excludes trial by jury altogether. There is, therefore, more occasion for the supplementary check of a bill of rights now than then. Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence—petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says [Virginia's] bill of rights?—"that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more—you depart from the genius of your country. That paper tells you that the trial of crimes shall be by jury, and held in the state where the crime shall have been committed. Under this extensive provision, they may proceed in a manner extremely dangerous to liberty: a person accused may be carried from one extremity of the state to another, and be tried, not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him. Is not this sufficient to alarm men? How different is this from the immemorial practice of your British ancestors, and your own! I need not tell you that, by the common law, a number of hundredors were required on a jury, and that afterwards it was sufficient if the jurors came from the same county. With less than this the people of England have never been satisfied. That paper ought to have declared the common law in force.

We Must Demand a Bill of Rights for Our Own Safety

In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone. And can any man think it troublesome, when we can, by a small interference, prevent our rights from being lost? If you will, like the Virginian government, give them knowledge of the extent of the rights retained by the people, and the powers of themselves, they will, if they be honest men, thank you for it. Will they not wish to go on sure grounds? But if you leave them otherwise, they will not know how to proceed; and, being in a state of uncertainty, they will assume rather than give up powers by implication.

A Bill of Rights Will Settle Disputes

A bill of rights may be summed up in a few words. What do they tell us?—That our rights are reserved. Why not say so? Is it because it will consume too much paper? Gentlemen's reasoning against a bill of rights does not satisfy me. Without saying which has the right side, it remains doubtful. A bill of rights is a favorite thing with the Virginians and the people of the other states likewise. It may be their prejudice, but the government ought to suit their geniuses; otherwise, its operation will be unhappy. A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute.