The Founders Included the Eighth Amendment to Prohibit Torture

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The Founders Included the Eighth Amendment to Prohibit Torture

Anthony F. Granucci

Anthony F. Granucci traces the history of prohibiting cruel and unusual punishments from biblical times through the framing of the U.S. Constitution. He theorizes that, under English law, the prohibition of outlandish punishments once pertained largely to any punishment that was considered excessive in proportion to the crime. However, Americans interpreted the phrase cruel and unusual to apply to the method rather than the degree of punishment. Therefore, the Eighth Amendment was originally a ban against torturous punishments. This article is often referred to by legal scholars and Supreme Court justices who seek a historical framework for the Eighth Amendment. Granucci was a graduate of the University of California at Berkeley and Harvard University before practicing law in California.


Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted: The Original Meaning," California Law Review, vol. 57, October 1969, pp. 844–64. Copyright © 1969 by the California Law Review. Reproduced by permission.

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The prohibition of excessive punishment, through the establishment of maximum limits, was an early development in the western world. It was first expressed in the Old Testament of the Bible in the Book of Exodus. One of the laws given to Moses by the God of the Jewish nation, Yahweh, was the lex talionis—an eye for an eye, a tooth for a tooth. It is generally considered a law of retribution—the product of a vengeful deity. Envisioning neither mercy nor mitigation of punishment, the lex talionis is, by modern standards, extremely harsh; however, it does prescribe a maximum limit on punishment. Talio is Latin for "equivalent to" or "equal." That the lex talionis requires punishment equal to the crime is made clear by a passage from the Book of Leviticus: "If a man injures his neighbor, what he has done must be done to him: broken limb for broken limb, eye for eye, tooth for tooth. As the injury inflicted, so must be the injury suffered."

A Time Line of the Philosophy of Punishment

A concern for equality between the offense and the punishment of the offender was expressed in early Greek philosophy. Aristotle taught that inequality, whether in favor of or against the offender, meant injustice. A similar concept of equality is found in the laws of the Anglos and the Saxons of pre-Norman England. The penal laws of the Germanic peoples in the Middle Ages were enforced through a system of fixed penalties, and the Norse Vikings followed such a system by listing each known crime and its appropriate penalty in the Gulathing and Frustathing Laws. The penalties ranged from outlawry to fines of a few ora. Under the Laws of King Alfred, who reigned in England circa a.d. 900 the lex talionis was codified and prescribed in fine detail:

For a wound in the head if both bones are pierced, 30 shillings shall be given to the injured man,

If the outer bone [only] is pierced, 15 shillings shall be given. . . .

If a wound an inch long is made under the hair, one shilling shall be paid. . . .

If an ear is cut off, 30 shillings shall be paid. . . .

If one knocks out another's eye, he shall pay 66 shillings, 6 1/3 pence. . . .

If the eye is still in the head but the injured man can see nothing with it, one-third of the payment shall be withheld.

The list continues with a monetary value assigned to every part of the anatomy.

Following the Norman conquest of England in 1066, the old system of penalties, which ensured equality between crime and punishment, suddenly disappeared. By the time systematic judicial records were kept, its demise was almost complete. With the exception of certain grave crimes for which the punishment was death or outlawry, the arbitrary fine was replaced by a discretionary amercement. Although amercement's discretionary character allowed the circumstances of each case to be taken into account and the level of cash penalties to be decreased or increased accordingly, the amercement presented an opportunity for excessive or oppressive fines.

The problem of excessive amercements became so prevalent that three chapters of the Magna Carta were devoted to their regulation. [Author F.] Maitland said of Chapter 14 that "very likely there was no clause in the Magna Carta more grateful to the mass of the people." Chapter 14 clearly stipulated as fundamental law a prohibition of excessiveness in punishments:

A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way a villein shall be amerced saving his wainage; if they fall into our mercy. And none of the aforesaid amercements shall be imposed except by the testimony of reputable men of the neighborhood.

. . . Thus by the year 1400, we have the expression of "the long standing principle of English law that the punishment should fit the crime. That is, the punishment should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged" [R. Perry]. In 1615 the King's Bench applied Chapter 14 of the Magna Carta to a "malicious kind of imprisonment" in the case of Hodges v. Humkin, Mayor of Liskerret:

. . . In regard of the manner of this Imprisonment, and of the place where, he being thrown into a Dungeon, and so to be there kept, without any Bed to lie on, or any bread or meat to eat, and for all these Causes, the Imprisonment was unlawful; Imprisonment ought always to be according to the quality of the offense. . . .

Thus, prior to adoption of the Bill of Rights in 1689 England had developed a common law prohibition against excessive punishments, in any form. Whether the principle was honored in practice or not is an open question. It was reflected in the law reports and charters of England. It is indeed a paradox that the American colonists omitted a prohibition on excessive punishments and adopted instead the prohibition of cruel methods of punishment, which had never existed in English law. . . .

The Role of Robert Beale

By 1689 England had still not developed a prohibition on cruel or barbarous methods of punishment. Although a general policy against excessiveness was expressed repeatedly, objection to particular methods of punishment (except when they were disproportionate to the crime involved) was very rare. The lex talionis authorized heinous punishments for heinous crimes. An objection first appears at the end of the sixteenth century, during the early struggles between the Puritans and the established Church of England.

In 1583 the Archbishop of Canterbury, John Whitgift, turned the High Commission into a permanent ecclesiastical court and the Commission began to use torture to extract confessions. Partially because of the use of such inquisitorial methods and partially because of his Puritan beliefs, [law scholar] Sir Robert Beale resigned his place on the Commission. . . .

Late in 1583 Beale published a manuscript entitled ABook against Oaths Ministered in the Courts of Ecclesiastical Commission. In it he impugned the right of the crown to fine and imprison persons for ecclesiastical offenses and he condemned the use of torture. Whitgift, defender of the official faith against both catholicism and puritanism, had a "Schedule of Misdemeanors" drawn up against Beale and presented it to the Privy Council. The thirteenth "court" of the schedule was:

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.

Beale was unique in using Chapter 14 of Magna Carta to argue against the deprivation of ministers. His objections to this deprivation and to cruel punishments in general were also unique in that he even condemned the use of torturous methods when authorized by the royal prerogative. This constituted a significant step beyond other English jurists who, while denying the existence of torture at common law, personally inflicted it upon royal command. Beale thus appears to be the founder of a second principle—that cruel methods of punishment are unlawful. Beale's objections to the use of torture and inquisitorial methods became more and more strident. . . .

Nathaniel Ward's Contribution

A prohibition of cruel methods of punishment was first written into law in America by another Puritan attorney, the Rev. Nathaniel Ward of Ipswich, Masssachusetts. . . .

In early 1634 the [Massachusetts] colony was in a period of political unrest. The Charter of 1629 provided for a government consisting of a governor, a deputy governor, and eighteen assistants (also known as magistrates). The freemen of the colony assembled in a General Court, but the assistants had the power to make laws and inflict punishments. In May 1634, before Ward's arrival, the General Court stripped the assistants of their lawmaking power, and a battle ensued over the assistants' power to veto the General Court's enactments.

One of the major complaints of the freemen was the lack of fundamental laws binding the judicial discretion of the magistrates. Winthrop records in his journal for May 6, 1635:

The deputies having conceived great danger to our state in regard that our magistrates, for want of positive laws, in many cases, might proceed according to their discretions, it was agreed, that some men should be appointed to frame a body of grounds of laws, in resemblance to a Magna Charta, which being allowed by some of the ministers and the general court, should be received for fundamental laws.

The first two committees failed to agree and a third attempt was made in 1638. By [1638] Ward had given up the ministry at Ipswich because of poor health, but being far from incapacitated, he was named to the committee [to draft a framework of laws for Massachusetts]. By 1639 both Rev. Ward and the Rev. John Cotton submitted draft codes to the General Court. The drafts were circulated throughout the colony and in 1641 Ward's draft was enacted into law under the title Body of Liberties. Clause 46 of the document read: "For bodily punishments we allow amongst us none that are inhumane, barbarous or cruel." . . .

The Emergence of the Phrase "Cruel and Unusual Punishments"

Fifty years after the drafting of the Massachusetts Body of Liberties, and nearly 100 years before the Virginia Declaration of Rights of 1776, the phrase "cruel and unusual punishments" came into being. In the spring of 1688 the shaky reign of King James II was coming to an end. In April he tried and failed to grant a new Declaration of Indulgence to English Catholics. Seven bishops of the Church of England petitioned the King not to publish the declaration and James resolved to have them prosecuted for their insubordinance. Their subsequent acquittal by the King's Bench was an accurate reflection of public sentiment towards the King.

In June the Queen, Mary of Modena, gave birth to a son, an heir to the throne. The birth signaled the coming of the Glorious Revolution. The opposition to James, especially that of William of Orange, could have afforded to await his death and the extinction of the House of Stuart. With a new heir, however, action was needed. On the last day of September, William declared that he would accept the invitation of several English peers to save their nation from "popery." By November 5, 1688, he had crossed the channel with an invasion fleet and risings began in his favor. The King, paralyzed by indecision, let the situation worsen until finally the Queen and baby prince were sent to France for safety. In December James followed, after throwing the great seal of England into the Thames. Lord Chancellor Jeffreys, who had stayed at his post till the end, was captured by rioting mobs and sent to the Tower of London.

The peers of the realm called a parliament to determine the succession to the throne. While debate centered on whether James had abdicated or merely vacated the throne—a point of law crucial to the position of the infant prince—a declaration of rights was drafted which the new monarchs, William and Mary, would ratify. The tenth declaratory clause of the bill reads:

That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

That clause was transcribed verbatim into the Virginia Declaration of Rights of 1776 and, with the substitution of "shall" for "ought," now appears in the eighth amendment to the United States Constitution.

The "Bloody Assize"

Noting the obvious linguistic link between the Virginia Declaration of Rights and the English Bill of Rights, legal historians have searched for the types of punishments which the drafters of the latter document sought to prohibit. Most historians point to the treason trials of 1685—the "Bloody Assize" —which followed the abortive rebellion of the Duke of Monmouth and the opinion that the cruel and unusual punishments clause was directed to the conduct of Chief Justice Jeffreys during these trials is still in vogue. After Charles II died in February 1685, his brother succeeded him as James II. Charles' eldest illegitimate son, the new King's nephew, James, Duke of Monmouth was in exile in Holland at the time. Monmouth, a fervent Anglican, had been associated with the Whigs of the Country Party. An invasion was planned and executed from Holland, where Monmouth was allowed the use of Dutch ports by William, Prince of Orange.

A small force led by Monmouth landed in western England on June 11, 1685. He proclaimed himself King, but his army was quickly defeated at the Battle of Sedgemoor. Within a month Monmouth was taken prisoner and was executed in London. The abortive rebellion had caused the cancellation of the autumn assize of 1685 and the King appointed Chief Justice Jeffreys of the King's Bench to head a special commission to travel the western circuit and try the captured rebels.

The assize began in late August with the trial of Alice Lisle, a 71 year-old widow, for the crime harboring rebels. John Lisle, her late husband, had been the President of Cromwell's High Court of Justice and had participated in the events leading to the execution of Charles I. Lisle had been excepted from the restoration and had been murdered abroad by royalist agents in 1664. Mrs. Lisle was convicted and sentenced to be burned alive, the traditional penalty for woman felons. The King commuted her sentence to beheading. When the Jeffreys commission reached Dorchester, it became apparent that to try each rebel separately would require an inordinate amount of time. At this point, Sir Henry Pollfexen, a Whig attorney who had been appointed chief prosecutor for the special commission, and the Chief Justice engaged in mass plea-bargaining. Pollfexen let it be known that no one who pleaded guilty would suffer the death penalty. The penalty for treason at that time consisted of drawing the condemned man on a cart to the gallows, where he was hanged by the neck, cut down while still alive, disembowelled and his bowels burnt before him, and then beheaded and quartered. Word of Pollfexen's proposal spread and in a matter of days over 500 trials were completed. Those who had pleaded not guilty but were found guilty were immediately executed. No one who pleaded guilty was executed during the period of the commission itself. However the bargain was not fully kept. Almost 200 prisioners who had pleaded guilty were executed during the winter. Jeffreys signed the death warrants himself before his return to London, where James II rewarded him with the Lord Chancellorship.

The assize was widely publicized by Puritan pamphleteers after 1689. One influential version was by Titus Oates . . . and was titled The Western Martyrology or, The Bloody Assize. The persuasive effect of the Puritan propaganda made Jeffreys the scapegoat for the abuses of the Stuart period and influenced later historians like G.M. Trevelyan to write: "The revenge taken upon the rebels . . . by . . . Judge Jeffreys in his insane lust for cruelty, was stimulated by orders from the King." Propaganda prevailed, and history has recorded that the cruel and unusual punishments clause was in answer to the "Bloody Assize." A close examination of the legislative history of the Bill of Rights produces a quite different conclusion. . . .

Unauthorized and Disproportionate

The original draft of [the English Bill of Rights, dated] February 2 [1689] 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 document 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. There is no evidence to connect the cruel and unusual punishments clause with the "Bloody Assize." On the contrary, everything points away from any connection. . . .

In the seventeenth century, the word "cruel" had a less onerous meaning than it has today. In normal usage it simply meant severe or hard. The Oxford English Dictionary quotes as representative Jonathan Swift, who wrote in 1710, "I have got a cruel cold, and staid within all this day." Sir William Blackstone, discussing the problem of "punishments of unreasonable severity," uses the word "cruel" as a synonym for severe or excessive.

The English evidence shows that the cruel and unusual punishments clause of the Bill of Rights of 1689 was first, an objection to the imposition of punishments which were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties. Nevertheless, it is clear that the American framers read into the phrase the meaning of Beale and Ward. How, then, did the American framers obtain their interpretation of the cruel and unusual punishments clause, an interpretation opposite to that of the English view?

The American Misinterpretation

George Mason and the framers of the American Constitution misinterpreted the meaning of the cruel and unusual punishments clause of the English Bill of Rights of 1689. . . . The shift in meaning was apparently not deliberate; either Mason copied the clause without any understanding as to its original meaning, arbitrarily intending his own interpretation drawn from colonial sources, or he and his contemporaries had a distorted notion of its meaning derived from the English legal treatises available at the time. . . .

The only treatise which discussed the topic of punishment was the fourth volume of [Sir William] Blackstone's Commentaries [on the Laws of England, 1768]. Volume four was published in London in 1768 and sent to the colonies soon thereafter. Demand for Blackstone's work was heavy in the colonies and his influence on the formation of American law was great. In 1775 Edmund Burke is reported to have told the House of Commons that almost as many copies of the Commentaries had been sold in America as in the whole of England.

Chapter 29 of volume four is entitled "Judgment and Its Consequences." The chapter begins with a description of the methods available to arrest a judgment in a criminal case. The next three pages . . . contain the germ of a misinterpretation which still infects our view of the eighth amendment.

If all these resources fail, the court must pronounce that judgment which the law has annexed to the crime, and which has been constantly mentioned, together with the crime itself, in some or other of the former chapters. Of these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain or disgrace are super-added: as, in treasons of all kinds, being drawn or dragged to the place of execution; in high treason affecting the king's person or government, embowelling alive, beheading and quartering; and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such part of these judgments as savor of torture or cruelty: A sledge or hurdle being usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental or by negligence) of any person's being embowelled or burned, till previously deprived of sensation by strangling. Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American colonies: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or face. Some are merely pecuniary, by stated or discretionary fines, and lastly there are others, that consist primarily in their ignominity, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for crimes, which arise from indigence, or which render even opulence disgraceful. Such as whipping, hard labor in the house of correction, the pillory, the stocks, and the duckingstool. . . .

It should be noted that Blackstone's England draws, beheads, burns, and quarters, slits noses and mutilates felons. Those other punishments that "savor of torture or cruelty" are prohibited, not by statute, but by the "tacit consent" of the English people. There is no citation to the Bill of Rights of 1689 for such a prohibition. Blackstone continues with a discussion of discretionary punishment, especially the fine. . . .

In his discussion of fines Blackstone finds it necessary to cite the Bill of Rights—a citation he had not found necessary when discussing torture—to show that fines are regulated by law. He completes his quote of the excessive fines clause with the cruel and unusual punishments clause. . . .

But Blackstone can be misread as citing the cruel and unusual punishments clause for a prohibition of the tortures. . . . The passages . . . were so read by the Supreme Court of Delaware in a [1963] case upholding the use of lashes as a punishment in that state. . . .

If such an unjustified reading of Blackstone can be made in 1963 by the Supreme Court of Delaware, a similar reading could have been made by George Mason and others at the Virginia Convention of 1776. It is submitted that such a reading explains the American framer's interpretation of the cruel and unusual punishments clause; an interpretation which spawned the American doctrine that the words "cruel and unusual" proscribed not excessive but torturous punishments.

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The Founders Included the Eighth Amendment to Prohibit Torture

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