The History of the Eighth Amendment

The History of the Eighth Amendment

Medieval Europe was a savage place.  Minor infractions such as cutting down a tree or stealing an animal were punished by death.  In all there were 222 crimes which were considered capitol and a person could be put executed for.  One of the most common of these crimes was that of witchcraft.  The methods of execution were very cruel and included drawing and quartering, crucifixion, brazen bull, impalement, and disembowelment among others (Alchin).  Trials of this age were extremely unjust and people were usually convicted once accused no matter what evidence was produced.  In 1689 an act of English Parliament was passed with the title: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (“English Bill of Rights 1689”) which is commonly called The English Bill of Rights.

One of the chief components that lead to the establishing of the English Bill of Rights was a controversy over bail which had existed for over five hundred years.  The original law which provided for the allowance of bail was called The Statute of Westminster the First which was enacted in 1275 AD.  This statute defined which offenses were bailable and which were not, with new offenses being added over the course of the next five and a half centuries.  Darnel’s Case (3 How. St. Tr. 1 (1627)) was argued over judges permitting the continued imprisonment of people only under the order of the King without bail.  This case was one of the central factors toward establishment of the Petition of Right in 1628.  This petition, established by English Parliament, is considered a major English constitutional document because it set out specific liberties of the subjects of the Crown and specified which liberties the King would not be allowed to infringe.  Those liberties include: taxes can only be levied by Parliament, martial law may not be imposed in time of peace, billeting of troops (similar to our Third Amendment to The Constitution here in the US), and most importantly to this paper that prisoners could challenge the legitimacy of their detentions through the writ of habeas corpus.  These rights were guaranteed to the people of England by the Crown in an effort to avert The English Civil War.  War however could not be stopped and The English Civil War was fought between 1642 and 1651 with a series of armed conflicts between Parliamentarians and Royalists.  After executing King Charles I and abolishing the monopoly of The Church of England, Parliament began enacting laws which were to protect the people from the Crown.  After another war called The Glorious Revolution in 1688 it was constitutionally established that the English monarch cannot govern without the consent of Parliament.

With the end of the Glorious Revolution in 1688, came the passage of The English Bill of Rights in 1689.  This bill at once stamped out any possibility of a Catholic monarchy and thereby any interference from The Vatican in English law.  The bill also ended the system of absolute monarchy in the British Kingdom by describing and limiting the monarch’s powers.  With these restrictions the King could no longer suspend laws, levy taxes, make royal appointments without the consent of Parliament, or maintain a standing army during peacetime.  All armed forces in England after this are not under direct control of the King, but instead are controlled by Parliament.  The passage of The English Bill of Rights in 1689 created the current constitutional monarchy in England which later became the United Kingdom.  The day after the Bill of Rights was passed in England, members of Parliament went before King William III and his wife Queen Mary II to read the bill.  These members of Parliament explained that The House of Commons especially condemned what they viewed as cruel and unusual punishment against a man named Titus Oates.

Titus Oates was a disgraced Anglican priest who had been removed from his rectory for either buggery or sodomy.  After being dismissed again from a Jesuit diocese in France, he returned to London.  Upon Oates’s return to London he wrote a manuscript that told of a conspiracy to kill The King that he had uncovered while working with the Jesuits.  This manuscript added to the general anti Catholic hysteria that was already afoot in England in the 1680’s and eventually Oates found the ear of Sir Edmund Godfrey, a member of Parliament and a strong supporter of Protestantism.  Godfrey championed Oates’s cause and called for an investigation to find the Catholic traitors who were out to assassinate the King.  The day after Godfrey called for this investigation he was found strangled and run through with his own sword, the commoners cried out that his murder had obviously been the work of conspirators of the Catholic Church who were there to assassinate the King and wanted to silence Godfrey.  What is rather odd is that the King actually seemed to be the only person who did not believe that the Catholic Church was attempting to kill him.  He called Oates to a meeting where the former Anglican priest accused five noblemen of being involved in the Catholic plot to kill him.  These men were eventually convicted of being traitors to the Crown and sentenced to death on the word of Oates.  After the trials of the noblemen were over, the King actually investigated Oates’s claims as well as talked to him for many hours personally.  After catching Oates in numerous lies the King had Oates thrown into prison for sedition.  Eventually Oates was tried and convicted of perjury.  Though the judge that condemned Oates to this punishment said, “There does not remain the least doubt, but that Oates is the blackest and the most perjured villain that ever appeared upon the face of the earth” (Donald) he was not sentenced to death for his perjury because the prevailing attitude was that if he was sentenced to death that future witnesses might not come forth with evidence. Instead he was stripped of his clerical dress and title, imprisoned for life, sentenced to hang on display from pillory stocks every year for two days and to be whipped for an entire day every year through the streets of London while chained to a moving cart for all to see.  The first day of his whipping many people turned out to watch as he was dragged through the streets of London, he received an estimated 1700 lashings and gushed so much blood that he eventually blacked out.  Many of the citizenry still believed Oates and in fact urban legends and rumors of conspiracy sprang up as cries rang out to free Oates who had become something of a martyr figure to many of the anti-Catholic crowd.  Whatever the truth was behind Oates’s crime, most of the commoners felt that his sentence was especially heinous and it was considered so terrible by the populace that the Oates case was talked of not only during the drawing up of The English Bill of Rights, but also during the drawing up of the Virginia Declaration of Rights almost 100 years and a continent away in a soon to be newly founded Republic.

The Virginia Declaration of Rights was drawn up in 1776 to lay down and proclaim the natural rights of men.  These rights were drawn up by the Virginia Convention of Delegates on June 12, 1776 .  The original document was written by George Mason with help from James Madison who assisted him with the section on religious freedom.  Mason based the Virginia Declaration on the English Bill of Rights produced almost a hundred years earlier.  This declaration was the first Constitutional protection for citizens living in North America as not all English protections were given to colonists.  This declaration was unique in that it defined which rights pertained to the people of Virginia and said that those people were the basis for the foundation of government.  In so doing the document rejected the notion of privileged political classes or royally inherited offices and in so doing condemned the royal members of Parliament as well as the House of Lords as well as the Crown itself.  The Virginia Declaration described the moral principles on which government would operate and affirmed the inherent nature of certain natural rights including the right to life, liberty, and property.

George Mason was not only the person who wrote the final draft of the Virgina Declaration but in fact he wrote more constitutional documents than any other person from any country to have ever lived (Pittman).  Mason was born in 1725 on the banks of the Potomac River on a farm that had been settled by his ancestors in the 1650’s.  As a young man he became a member of the Ohio Company in the 1740’s and by 1750 had been made its treasurer and had virtual control over the company.  The main business of The Ohio Company was establishing and trading supplies at Native American trading posts west of the Allegheny Mountains as well as settlement projects in western Virginia.  It was Mason who served as a mentor to his childhood neighbor George Washington and in fact got Washington a job with The Ohio Company.  Mason was not trained as a lawyer and in fact it was only his intensive tutoring by local Scotch Presbyterians as a child that Mason could count as formal education.  Mason did have a love of independent learning however and instructed himself in the areas of science, government, and politics.  When George Washington became a member of the house of Burgesses he asked his friend Mason to write every state paper, resolution, and bill for him.  Many of the original documents that were written by Mason for Washington are today located in the Washington Archives.  Other documents included there are ones written by Mason for people such as Thomas Jefferson, Patrick Henry, and R. H. Lee.  Mason was asked by George Washington to take his place on the Virginia Assembly in 1775 so that Washington could take command of the Continental Army.  It was at this post that Mason had the opportunity to draft the Virginia Declaration of Rights which was adopted June 12, 1776. The Virginia Declaration of Rights began “All men are born equally free and independent and have certain inherent natural rights, of which they can not by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The Tories and Aristocrats of the time believed that Mason was inviting a slave insurrection.  The Virginia Declaration of rights eventually became the model used by all other states in their own state constitutions.  In addition Thomas Jefferson used the model as well as directly copied much of the language for the preamble for the Declaration of Independence. In addition Thomas Jefferson gave a copy of the Virginia Declaration of Rights to his good friend The Marquis de Lafayette who drafted the French Declaration of 1789 which became the primary document that caused The French Revolution and also was looked at again in France as recently as 1958 when the current Constitution of the French Fifth Republic was drawn up.

After preparing the Virginia Declaration Mason also drew up Virginias Constitution which was adopted July 5, 1776.  Mason served in the Virginia Assembly during the Revolutionary War.  He wrote many bills and when the Articles of Confederation was deemed too loose nit he was appointed by the Virginia Assembly as a delegate to the Constitutional Conventions.  A lifelong objector of slavery, Mason became enraged when the New England states traded with South Carolina and Georgia delegates to authorize interstate commerce laws in exchange for permitting slavery.  Mason had believed that by inserting a bill of rights into the US Constitution that all men would truly be viewed as equal and that there would be an immediate end to slavery which he viewed as a slow poison that would tear apart our young nation.  George Mason refused to sign the Constitution of The United States because of his opposition to slavery and its lack of a bill of rights and immediately sat out on a personal campaign to amend the constitution.  George Washington was outraged that Mason would not sign the Constitution and the two men never collaborated again.  Because of Mason’s adamant objections and refusal to sign the Constitution many of his former friends turned against him.  Mason’s objections to the constitution were published all over the nation and were widely discussed (Warren).  One might have thought that this would be the end of George Mason’s contribution to the Eighth Amendment; soon however a very unlikely supporter would show up with a copy of Mason’s Bill of Rights.

James Madison liked George Mason as a person, but had drastically different views.  Both were close friends with Thomas Jefferson and unlike Mason, Madison had lead a very educated and charmed life on the backs of slaves who worked at his family’s Tobacco plantation.  Madison agreed with most of what Mason had written in the Virginia Decleration, even though he was probably not too keen on the ideas of everyone being equal and free.  It was however the last article that concerned religious toleration that interested him the most.  Madison disliked that Mason had used the word “toleration” when creating the Virginia Declaration and believed that instead the wordage should consist of the idea that absolute equality in religious belief and exercise should be used.  It was because of this simple disagreement in language that Madison knew that when the people called for an amendment to the Constitution that it was his obligation to draft the Bill of Rights, even though he had opposed Mason during the drafting of The Constitution on its inclusion.

Madison truthfully did not believe that the Bill of Rights was very important.  He did however believe that if one was not included that the people might call for a new constitution or that the final two states might not ratify the one that was already in place.  In his later years his leters revealed that he was not especially proud of The Bill of Rights and in fact referred to them as “those safe, if not necessary, and those politic, if not obligatory, amendments.”  Madison had a keen memory and when he proposed the amendments before Congress he reviewed many of the arguments that had come up during the drafting of the Constitution.  Madison originally wanted the amendments to be inserted into the first article of the Constitution following the prohibition on bills of attainder.  Madison used George Mason’s Bill of Rights, and in fact his library contains a hand written copy that might have been used as reference in front of Congress.  Madison’s proposals did not all become law however.  First Madison wished to add a prefix to the Constitution, however it did not secure approval.  Next Madison’s wish to add to the right to bear arms a section dealing with conscientious objectors: “no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” however Congress did not approve (Brent).  Another portion of Madison’s proposed changes also did not make it into the Constitution and that dealt with three restrictions on the states.  “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Another proposal by Madison also was not considered and that was an explicit statement recognizing the separation of powers, this was viewed as not needed as it was thought that the Constitution implied such already.  The final proposal that Madison submitted that was rejected by Congress eventually became law in almost 200 years later in 1992, and this called for the forbidding of an increase in Congressional pay until an election had been intervened.  There was little however that was called for by Madison that had not already been proposed by Mason, and even that had not already been written in the Virginia Decleration of Rights.  The following chart shows the difference between section 9 of the Virginia Decleration and the eventual Eighth Amendment of the Bill of rights. (Brent)

Declaration of Rights That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Madison to Congress Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Bill of Rights Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Alchin, L.K. Middle Ages Torture. Retrieved from

In Avalon (Ed.), English Bill of Rights 1689. New Haven, CT: Lillian Goldman Law Library.

Brent, D. James Madison Proposes Bill of Rights. Congressional Register. Retrieved from

Donald, E. Biography of Titus Oates. University of Georgia School of Law Press. Retrieved from

Pittman, R. C. George Mason: Architect of Constitutional Liberty. Retrieved from

Warren, J. D. George Mason, The Thoughful Revolutionary. Gunston Gazette. Retrieved from


About criminality

Hello my name is Brandon Stacker and I am a graduate student at Wayland Baptist University studying Criminology and Business Administration. This blog deals with Criminal Justice topics that affect both society as well as the law enforcement professional.
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