Eighth Amendment To The United States Constitution - Background

Background

The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury which had caused many executions of people whom Oates had wrongly accused. Oates was sentenced to imprisonment including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence. The punishment of Oates involved ordinary penalties collectively imposed in an excessive and unprecedented manner. The reason Oates did not receive the death penalty (unlike those whom he had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.

England’s declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day. Members of Parliament then explained in August 1689 that “the Commons had a particular regard…when that Declaration was first made” to punishments like the one that had been inflicted by the King's Bench against Titus Oates. Parliament then enacted the English Bill of Rights into law in December 1689.

In England, the "cruel and unusual punishments" clause was a limitation on the discretion of judges, and required judges to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:

owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second)....

Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.

Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may “inflict unusual and severe punishments.” Henry emphasized that Congress could otherwise depart from precedent: "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...." Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.