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MARSHALL, J., concurring

408 U.S.

the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint.

Candor is critical to such an inquiry. All relevant material must be marshaled and sorted and forthrightly examined. We must not only be precise as to the standards of judgment that we are utilizing, but exacting in examining the relevant material in light of those standards.

Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error.

I The Eighth Amendment's ban against cruel and unusual punishments derives from English law. 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.

5 Granucci, "Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 848 (1969).

6 Ibid. Beale's views were conveyed from England to America and were first written into American law by the Reverend Nathaniel Ward who wrote the Body of Liberties for the Massachusetts Bay Colony. Clause 46 of that work read: "For bodilie punishments

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MARSHALL, J., concurring

Cruel punishments were not confined to those accused of crimes, but were notoriously applied with even greater relish to those who were convicted. Blackstone described in ghastly detail the myriad of inhumane forms of punishment imposed on persons found guilty of any of a large number of offenses.? Death, of course, was the usual result.

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).10 The assizes received wide publicity from Puritan pamphleteers and doubtless had some influence on the adoption of a cruel and unusual punishments clause. But,

we allow amongst us none that are inhumane, Barbarous or cruel.” 1 B. Schwartz, The Bill of Rights: A Documentary History 71, 77 (1971).

74 W. Blackstone, Commentaries *376–377. See also 1 J. Chitty, The Criminal Law 785–786 (5th ed. 1847); Sherman, “. Nor Cruel and Unusual Punishments Inflicted," 14 Crime & Delin. 73, 74 (1968).

8 Not content with capital punishment as a means of retribution for crimes, the English also provided for attainder (“dead in law”) as the immediate and inseparable concomitant of the death sentence. The consequences of attainder were forfeiture of real and personal estates and corruption of blood. An attainted person could not inherit land or other hereditaments, nor retain those he possessed, nor transmit them by descent to any heir. Descents were also obstructed whenever posterity derived a title through one who was attainted. 4 W. Blackstone, Commentaries *380-381.

9 E. g., 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891). 10 2 G. Trevelyan, History of England 467 (1952 reissue).

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MARSHALL, J., concurring

408 U.S.

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." 11 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.12 The use of the word "unusual” in the final draft appears to be inadvertent.

This legislative history has led at least one legal historian to conclude "that the cruel and unusual punishments clause of the Bill of Rights of 1689 was, first, an objection to the imposition of punishments that were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties,” 13 and not primarily a reaction to the torture of the High Commission, harsh sentences, or the assizes.

11 Granucci, supra, n. 5, at 854. 12 Id., at 855.

13 Id., at 860. In reaching this conclusion, Professor Granucci relies primarily on the trial of Titus Oates as the impetus behind the adoption of the clause. Oates was a minister of the Church of England who proclaimed the existence of a plot to assassinate King Charles II. He was tried for perjury, convicted, and sentenced to a fine of 2,000 marks, life imprisonment, whippings, pillorying four times a year, and defrocking. Oates petitioned both the House of Commons and the House of Lords for release from judgment. The House of Lords rejected his petition, but a minority of its members concluded that the King's Bench had no jurisdiction to compel de

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Whether the English Bill of Rights prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or as both, there is no doubt whatever that in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments.14

The precise language used in the Eighth Amendment first appeared in America on June 12, 1776, in Virginia's "Declaration of Rights,” $ 9 of which read: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This language was drawn verbatim from the English Bill of Rights of 1689. Other States adopted similar clauses, 16 and there is evidence in the debates of the various state conventions that were

frocking and that the other punishments were barbarous, inhumane, unchristian, and unauthorized by law. The House of Commons agreed with the dissenting Lords. Id., at 857–859.

The author also relies on the dictionary definition of "cruel,” which meant "severe” or “hard” in the 17th century, to support his conclusion. Ibid.

14 Most historians reach this conclusion by reading the history of the Cruel and Unusual Punishments Clause as indicating that it was a reaction to inhumane punishments. Professor Granucci reaches the same conclusion by finding that the draftsmen of the Constitution misread the British history and erroneously relied on Blackstone. Granucci, supra, n. 5, at 862-865. It is clear, however, that prior to the adoption of the Amendment there was some feeling that a safeguard against cruelty was needed and that this feeling had support in past practices. See n. 6, supra, and accompanying text.

15 Grannucci, supra, n. 5, at 840; 1 Schwartz, supra, n. 6, at 276, 278.

. 16 See, e. g., Delaware Declaration of Rights (1776), Maryland Declaration of Rights (1776), Massachusetts Declaration of Rights (1780), and New Hampshire Bill of Rights (1783). 1 Schwartz, supra, n. 6, at 276, 278, 279, 281; 337, 343; 374, 379.

MARSHALL, J., concurring

408 U.S.

called upon to ratify the Constitution of great concern for the omission of any prohibition against torture or other cruel punishments.??

The Virginia Convention offers some clues as to what the Founding Fathers had in mind in prohibiting cruel and unusual punishments. At one point George Mason advocated the adoption of a Bill of Rights, and Patrick Henry concurred, stating:

"By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? ... 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 our 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. ..

"In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and in

17 See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id., at 447-481. See also, 2 Schwartz, supra, n. 6, at 629, 674, 762, 852, 968.

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