Lost and Found: The Forgotten Origins of the “Cruel and Unusual Punishments” Prohibition

A. A Primer on English and Irish History

A few points must be recalled as one delves into the history of the “cruel and unusual punishments” prohibition. First, the Tudor and Stuart periods were—as a general matter—full of harsh and extreme punishments, intense conflict between Catholics and Protestants, and heated disputes between Parliament and monarchs. 72 King Henry VIII famously had two of his own wives executed, 73 and nearly three hundred people were burned at the stake during the reign of Henry VIII’s daughter, Queen Mary I, who sought to return the Church of England to Catholicism, infamously becoming known as “Bloody Mary” because of her deadly persecution of Protestants. 74 With respect to the Irish, it was Mary Tudor (1516–1558), Henry VIII’s daughter, who “introduced the idea of a ‘plantation’ in Ireland.” 75 “The Londonderry plantation in Ulster presents a particularly striking example of English exploitation of the Irish,” one account of the extended conflicts between English Protestants and Irish-Catholics points out, adding: “James (Stuart) of Scotland, who became James I of England (ruled 1603–1625) upon the [d]eath of Elizabeth I in 1603, undertook this endeavor. Under James I, the English were to settle 2 million Irish acres. The entire county of Derry was given to the English, and its name subsequently changed to Londonderry.” 76

Second, the English Declaration of Rights came into existence against the backdrop of centuries of English poetry, literature and history, including the Magna Carta (1215), 77 with an explosion of literary works published in English in the sixteenth and seventeenth centuries. The Tudor and Stuart periods saw the publication of a wide array of books, plays, literature, and poetry, 78 with lexicographers such as Robert Cawdrey, John Bullokar, and Henry Cockeram producing early English dictionaries 79 long before the first printing of Samuel Johnson’s A Dictionary of the English Language (1755). 80 “Until the very beginning of the seventeenth century, a time when the English language could quite probably number fully a quarter of a million words and phrases,” bestselling author Simon Winchester writes, “there was not a single book in existence that attempted to list even a small fraction of them, nor was there any book that would make the slightest attempt to offer up an inventory.” 81 William Shakespeare (1564–1616)—the most famous, but just one of many playwrights and poets of the age 82—himself coined hundreds of English words or phrases, 83 often combining words in new and innovative ways as he pioneered new expressions. 84

Third, King Charles I’s enormously unpopular period of “personal rule” (1629-1640), 85 English-Scottish conflicts known as the Bishops’ Wars (1639–1640), 86 the 1641 abolition of the Court of Star Chamber and the Court of High Commission, 87 and the outbreak of an Irish rising (1641–1642) 88 all preceded the English Civil War (1642–1651) 89 that led to Charles I’s execution in 1649, 90 the Interregnum (1649–1660) and the rise of Oliver Cromwell’s Commonwealth of England, Scotland, and Ireland and his protectorate. 91 The “Long Parliament,” which first met in 1640, 92 it has been noted, “erupted in unprecedented fury against two decades of belligerent royal policies that had left the nation in disarray,” including with respect to Charles I’s religious policies. 93 Only in time did the Restoration of 1660 put Charles I’s son, Charles II, on the throne, 94 though England’s Parliament continued to resist abuses from prerogative courts. 95 “The 1637 Star Chamber prosecution of Prynne, Burton and Bastwick,” one source observes of the period of Charles I’s personal rule, describing the grotesque corporal punishments inflicted upon William Prynne, Henry Burton and John Bastwick, “is one of the causes célèbres not only of the 1630s but of seventeenth-century English history.” 96

Fourth, in the late 1670s (a decade before the “Glorious Revolution”), Titus Oates alleged the existence of a conspiracy to kill King Charles II—fabricated charges that implicated many Catholics and Jesuits and that became known as the “Popish Plot.” 97 In 1678, Oates, the clergyman with a checkered past, gave a deposition and swore before a well-known magistrate, Sir Edmund Berry Godfrey, that he had overheard Jesuits hatching a plan to kill Charles II. 98 The magistrate’s body was later found in a ditch with a sword through his body. 99 “To his contemporaries,” one modern commentator notes, “the death of Edmund Godfrey was naturally attributed to Roman Catholics; the ‘villainous papists’ had murdered the Protestant magistrate as part of a wider Popish Plot and were intent upon other malicious actions if they were given the chance.” 100 Although Oates’s story was latter called “a tissue of monstrous lies,” a panic ensued after the magistrate’s murder, 101 and the fabricated “plot” horrifyingly led to fifteen innocent people being convicted and executed, including by the gruesome method of hanging and drawing and quartering. 102

As described below, the severe punishment of Titus Oates and many others during the Stuart dynasty provided a clear impetus for codifying the bar on “cruel and unusual punishments” in the English Declaration of Rights. The concept of cruel and unusual punishments, though, had far older roots—and the codification of the English legal prohibition was the culmination of a series of historic events and circumstances, many of which long preceded England’s Revolution of 1688–1689. Samuel Johnson’s A Dictionary of the English Language (1755) later specifically connected English society’s conception of punishment with vengeance, defining punishment as “[a]ny infliction or pain imposed in vengeance of a crime.” 103

Fifth, the “Glorious Revolution”—guaranteeing that no Catholic would ever sit on the throne—came after a long but unsuccessful battle in England’s Parliament, known as the Exclusion Crisis (1679–1681), 104 that sought to exclude King Charles II’s brother, James, from the line of succession. 105 The Exclusion Crisis pitted the Earl of Shaftesbury, “an anti-Catholic ‘country’ politician and the leader of the nascent Whig Party,” against King Charles II and his brother James, the Catholic Duke of York. 106 “The major political aim of the early Whigs,” one academic explains, “was legislation excluding James—whom they saw as embodying absolutism—from the line of succession.” 107 As that academic, William Ortman, writes of Whigs and the pitched political battle that ensued in England: “Their power base was the House of Commons, where they won majorities in three elections held between 1679 and 1681. Charles and James’s supporters, who became known as Tories during this period, fended off exclusionary legislation from their stronghold in the House of Lords.” 108

Finally, the Revolution of 1688–1689 that produced the English Bill of Rights followed on the heels of much royal intrigue and societal upheaval. That public intrigue and unrest included what became known as the Rye House Plot (1683), 109 the Duke of Monmouth’s ill-fated rebellion (1685) 110 shortly after James became king, and a number of draconian punishments imposed throughout Stuart reign, including in the “Bloody Assizes” and against Titus Oates. 111 The “Glorious Revolution”—as the U.S. Supreme Court has observed—“deposed” King James II in 1688; “cut back on the power of the Crown” as Parliament asserted itself; and “stripped away” the king’s hereditary powers, leading to Parliament adopting the English Declaration of Rights and its statutory equivalent, the English Bill of Rights (1689). 112

Among other things, the English Bill of Rights rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and “the pretended Power of Dispensing with Laws or the Execution of Laws by Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of late.” 113 It was a contest of wills with origins dating back as far as the Magna Carta (1215), or Great Charter, when rebellious English barons forced King John to agree to limits on his power in a muddy field at Runnymede. 114 Among the chapters of the Magna Carta: provisions barring excessive fines. 115 When James II was overthrown in the Glorious Revolution,” the U.S. Supreme Court emphasized in Timbs v. Indiana, 116 “the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that ‘excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.’” 117 The Magna Carta contained a clause that “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 . . . .” 118

B. The Massachusetts Body of Liberties (1641)

Also, linguistic predecessors related to bail, fines, and punishments—the three components addressed in article 10 of the English Bill of Rights (1689) and the U.S. Constitution’s Eighth Amendment (1791)—are found in specific provisions of the Massachusetts Body of Liberties (1641). 119 The first legal code in New England, 120 the Massachusetts Body of Liberties—setting forth the colonists’ “liberties” 121—was principally drafted for the Massachusetts Bay Colony by the Rev. Nathaniel Ward, a Puritan exile 122 who, in England, had studied and practiced law. 123 As Professor John Witte, Jr. writes of the Massachusetts Bay Colony: “Massachusetts Bay issued its Body of Liberties in 1641, just over a decade after the arrival of the first colonists. The document was drafted by Nathaniel Ward, a distinguished Cambridge-trained lawyer and Heidelberg-trained Calvinist minister.” 124 In explaining Ward’s background, Professor Witte notes: “Ward had come to New England in 1634, with ten years of legal experience as a barrister in England. He had also been a preacher in England but had been removed from his pulpit in 1631 because of his dissenting Calvinist views.” 125

The Massachusetts Body of Liberties—the product of a request of the General Court of Massachusetts for a draft of laws “agreeable to the word of God” 126—set forth various legal rights, although it also made many acts punishable by death and referenced corporal punishments. 127 “No mans person,” article 18 of the Massachusetts Body of Liberties provided, “shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” Regarding fines, article 22 of the Body of Liberties read: “No man in any suit or action against an other shall falsely pretend great debts or damages to vex his Adversary, if it shall appeare any doth so, The Court shall have power to set a reasonable fine on his head.” Similarly, article 37 of the Body of Liberties—reflecting the importance of the concept of proportionality—referred to the court’s power to impose “a proportionable fine.” “No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unless his crime be very shamefull, and his course of life vitious and profligate,” article 43—another of nearly one hundred separate articles in the Body of Liberties—reads, with the Body of Liberties citing biblical verses authorizing the punishment of death. 128 “No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty,” article 45 of the Body of Liberties began, with the very next provision—article 46—reading: “For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruell.” 129

Nathaniel Ward, the drafter of the Massachusetts Body of Liberties, had been admitted to Lincoln’s Inn in 1607. 130 The relevant provisions of the Body of Liberties, as one academic, Celia Rumann, observes, “can be traced back to the writings of Englishman Robert Beale.’” 131 “Sir Robert Beale,” Rumann notes, “had been a member of the High Commission which had been turned into an ecclesiastical court and had used ‘torture to extract confessions.’” 132 The High Commission had been set up “to try certain types of ecclesiastical offenses,” and Beale had resigned “because of its inquisitorial methods and because of his Puritan beliefs.” 133 As Rumann emphasizes: “Beale objected to the use of torture ‘when authorized by the royal prerogative’ and other inquisitorial methods. Later Beale published a manuscript in which, among other things, he condemned the use of torture by the High Commission.” 134

John Whitgift, the Archbishop of Canterbury from 1583 to 1604 and described by Rumann as “the architect of the High Commission,” did not react well to Beale’s actions, with Whitgift having a “Schedule of Misdemeanors” drawn up against Beale “for condemning such things as the use of the rack as ‘cruel, barbarous, [and] contrary to law.” 135 “Given the influence Beale had on Ward,” Rumann explains, “it appears that Ward’s language, used in the Massachusetts Body of Liberties, was motivated by concerns about torture that was used to extract confessions in the absence of a conviction and bodily punishments that were ‘inhumane Barbarous or cruel.’” 136

In the late sixteenth century, Sir Robert Beale had invoked the Magna Carta to question the monarchy’s power to inflict cruel punishments. 137 Beale, an Oxford-educated member of Parliament and a lawyer who opposed torture, had written a manuscript in 1583 that attacked the English crown’s right to punish persons for ecclesiastical offenses. The Clerk of the Privy Council, Beale represented Puritan ministers deprived of their benefices, argued in vain that the use of torture to extract confessions violated the Magna Carta, and in 1592 was banished from the Royal Court. The powerful Archbishop of Canterbury, John Whitgift, explicitly admonished Beale that had 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.” 138 A Puritan, Robert Beale—as one academic wrote in the University of Chicago Law Review—“bemoaned the death of Magna Carta,” with Beale complaining in 1589 about High Commission agents “by a warrant under the hands of the Comissioners” entering “into mens howses,” breaking up “their chestes and chambers,” carrying out “what they list,” and afterwards making arrests. 139

C. The Punishment of Titus Oates

In the constellation of punishments imposed upon Titus Oates in 1685 by the Court of King’s Bench for perjury, 140 Oates—to the horror of many English Protestants, especially those concerned about absolute royal power and Stuart tyranny—was infamously stripped of his clerical garb and ordered to be imprisoned for life, to be whipped, fined, and to ignominiously stand in the pillory multiple times a year for the rest of his life. 141 “The judges, as they believed, sentenced Oates to be scourged to death,” one leading English historian, Lord Macaulay, once observed, though Oates did not die as some—including, most likely, the Court of King’s Bench judges sentencing him 142—may have expected. 143 While fines, imprisonment, whipping, and the pillory were, individually, common punishments in seventeenth-century England, the specific punishment (or, more accurately, the defrocking and combination of punishments) imposed upon Oates in the mid-1680s was later seen by members of Parliament as “cruel, barbarous and illegal.” 144

It is, frankly, not hard to see why, especially when one reads the actual punishments he endured over the course of just one week—and what he was sentenced to suffer in the future. “On Monday,” one history notes in describing the first day of the 1685 punishment inflicted upon Oates, “he had to walk through the Courts of Justice in Westminster Hall wearing a notice describing his offence, before standing in the pillory for an hour, where an estimated crowd of 10,000 people pelted him with rotten eggs.” Oates also reportedly had dead cats thrown at him. 145 “On Tuesday,” that historian’s description continues, “he went through the same treatment but this time at the Royal Exchange.” While, on Wednesday, Oates was then “whipped the mile and a half from Aldgate to Newgate,” just two days later—on Friday—he was similarly “whipped the two miles from Newgate to Tyburn,” ultimately falling unconscious and—at one point—being “dragged on a sled.” Along with being fined 2,000 marks 146 and ordered to be imprisoned for life, “on four occasions each and every year,” historian David Hanrahan summarizes of the public and annual recurring pillorying to be suffered, Oates “was forced to stand for an hour in the pillory at various locations around London.” 147

D. The Ratification of the Eighth Amendment

When, centuries ago, Americans debated the provisions of the U.S. Constitution and the U.S. Bill of Rights before ratifying them, 148 at least some lawmakers opposed including the “cruel and unusual punishments” prohibition because of its assertedly indefinite meaning, 149 with considerable uncertainty—truth be told—about what exactly “nor cruel and unusual punishments inflicted” meant 150 or might be interpreted to mean in the future. 151 That language in the Eighth Amendment was, plainly, borrowed from the English Bill of Rights (1689) 152 and the Virginia Declaration of Rights (1776). 153 But the language chosen for the Eighth Amendment and revolutionary era state constitutions, whether America’s founders knew all the particular details or not about the origins of the “cruel and unusual punishments” language, had a pedigree stretching back much further than the 1680s. At the very least, America’s founders would have known that the bar on “cruel and unusual punishments” had “ancient” roots, because they were very familiar with the English Bill of Rights and that is what the English Bill of Rights itself recites. 154

In fact, the legal protections found in the English Bill of Rights had roots predating that act of Parliament. The English common law 155—as incorporated into the English Declaration of Rights and then codified in the English Bill of Rights—had long prohibited cruel and unusual punishments as evidenced by that prohibition’s classification by the English as an “ancient” right 156 in the late 1680s. 157 It took considerable time for a common law right to be recognized by an English court, although the common law—the very foundation of English law—was tied to custom and meant to be flexible and adaptable. As Theodore F. T. Plucknett, a Professor of Legal History at the University of London, has explained of the history of the common law in a section titled “The Flexibility of Custom”: “If we want the view of a lawyer who knew from experience what custom was, we can turn to Azo (d. 1230), whose works were held in high respect by our own Bracton. ‘A custom can be called long,’ he says, ‘if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years.’” 158 Another law professor, Craig Dallon, has also written:

A common law right is a right based on general or local customs rather than written law. These common law rights were rooted in custom or usage, enforced or “discovered” by common law courts, and revealed in reported judicial decisions. According to one nineteenth century treatise on the laws of England, common law rights “receive[d] their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” The custom giving rise to the common law right must be ancient; “[T]he goodness of a custom depends upon its having been used time out of mind . . . time whereof the memory of man runneth not to the contrary.” 159

Taking stock of the “cruel and unusual punishments” prohibition, American revolutionary Patrick Henry and others—at a distance of many decades from the language’s appearance in the English Bill of Rights as a byproduct of the Revolution of 1688–1689 160—forcefully expressed the view, from an eighteenth-century vantage point, that it prohibited barbarous punishments and torture. 161 “The very use of the phrase ‘bill of rights’ in popular parlance to describe the new documents that the Revolutionary American states adopted was an allusion to the English Bill of Rights,” Eighth Amendment scholar Laurence Claus explains of early American history and the founders’ familiarity with the English Bill of Rights. 162

It is impossible to say what exactly was in the minds of every American framer of revolutionary era state constitutions or the U.S. Bill of Rights. It can be safely asserted, however, that early American lawmakers—without prying too deeply into how the “cruel and unusual punishments” prohibition first arose, 163 at least beyond their shared understanding from studying English history and reading Sir William Blackstone’s treatise 164 indicating that the English prohibition arose in response to King James II’s abuses 165—mainly wanted the same basic rights as Englishmen. 166 The legal protection against cruel and unusual punishments was, certainly, one of those rights, as the U.S. Supreme Court itself later confirmed. 167 “Blackstone’s impact on American jurisprudence cannot be understated,” one scholar writes, observing that—among others—Chief Justice John Marshall, James Wilson, John Jay, Nathaniel Greene, James Kent, and John Adams “subscribed” to Blackstone’s Commentaries on the Laws of England. 168

The prohibition against “cruel and unusual punishments” was first codified in the English Bill of Rights, but common law rights did not need to be codified by statute to be considered viable legal rights. As noted above, that English legal instrument that served as a model for the Eighth Amendment and similarly worded state constitutional provisions was inspired in part by draconian punishments imposed upon Titus Oates 169 and many others 170 during the Stuart dynasty, 171 including by Lord Chief Justice George Jeffreys of the Court of King’s Bench. 172 The codified prohibition in the English Bill of Rights reflected a general understanding of what the English common law prohibited—or at least was thought to already prohibit—even in the absence of a written constitutional guarantee. 173 The U.S. Supreme Court itself has acknowledged the importance of England’s common-law protections in its own Eighth Amendment jurisprudence. For example, in Ford v. Wainwright, 174 the Supreme Court expressly examined the English common law in holding that the execution of the insane violates the Eighth Amendment’s prohibition against cruel and unusual punishments. 175

Some of the history pertaining to how the prohibition against cruel and unusual punishments first came to be codified in England is relatively well-known. That history includes the factual background relating to the “Popish Plot” and Titus Oates, his acts of perjury, and the punishments then inflicted upon him that drew so much criticism in Parliament. 176 In 1685, the Court of King’s Bench infamously ordered that Titus Oates, the disgraced clergyman convicted of perjury, be defrocked, fined 2,000 marks, be “whipped from Aldgate to Newgate” the following Wednesday, be similarly whipped “from Newgate to Tyburn” the following Friday, be pilloried four times annually, and be imprisoned for the remainder of his life. 177 Four years after that court—led by Lord Chief Justice George Jeffreys—ordered those draconian punishments, Oates petitioned Parliament for relief in the wake of the promulgation of the English Declaration of Rights and members of Parliament engaged in an extended debated about his case. 178

One leading Eighth Amendment scholar, Meghan Ryan, emphasizes that “[t]he more commonly accepted view among scholars today” is that Article 10 of the English Bill of Rights was “drafted to prevent courts from doling out cruel and illegal punishments or severe punishments that are ‘unauthorized by statute and not within the jurisdiction of the court to impose,’” such as occurred during Stuart reign. “Titus Oates,” she writes, “falsely proclaimed under oath that there was a plot to assassinate King Charles II,” further emphasizing that Oates’s lies “caused fifteen innocent people to be convicted and executed.” “[A]fter it was discovered that these undeserved executions were the result of Oates’s perjury,” Professor Ryan explains, summarizing what happened, “Oates was sentenced to a 2,000-mark fine, life imprisonment, whippings, quarterly pillorying, and defrocking.” 179

The punishment of Titus Oates was—and naturally would have been—front of mind when Parliament drafted the English Declaration of Rights. “Some Whig believers never conceded the falsity of the Popish Plot,” legal historian John Langbein observes, noting that, in England’s Revolution of 1688–1689, “complaints about the severity of Oates’ punishments were among the grievances that led to Article 10 of the Declaration of Rights, proscribing excessive fines and cruel and unusual punishments.” 180 When Oates petitioned Parliament for relief from his sentence, Meghan Ryan points out, “the House of Lords rejected the petition” but “[a] minority of the Lords dissented,” concluding: “the said judgments are barbarous, inhuman, and unchristian”; “there is no precedent to warrant the punishments of whipping and committing to prison for life, for the crime of perjury”; allowing the sentence to stand would “be an encouragement and allowance for giving the like cruel, barbarous, and illegal judgments hereafter”; the “judgments were contrary to law and ancient practice, and therefore erroneous, and ought to be reversed.” 181

In volume four of his Commentaries on the Laws of England (1769), Sir William Blackstone wrote of English punishments, including of the kind meted out during the Tudor and Stuart dynasties. 182 “Of these,” Blackstone observed, “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 superadded: 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,” Blackstone added, “the judgment is to be burned alive.” “But the humanity of the English nation,” Blackstone emphasized in the midst of the Enlightenment, “has authorized, by a tacit consent, an almost general mitigation of such parts of these judgments as savour of torture or cruelty.” In describing English penal practices in 1769, Blackstone concluded: “Some punishments consist in exile or banishment, others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, others induce a disability. 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 cheek.” 183

After noting that other punishments are “merely pecuniary, by stated or discretionary fines,” Blackstone stressed that, “lastly, there are others which consist principally in their ignominy, though most of them are mixed with some degree of corporal pain, and these are inflicted chiefly for such crimes as either arise from indigence or render even opulence disgraceful, such as whipping, hard labor in the house of correction or otherwise, the pillory, the stocks, and the ducking stool.” 184 Blackstone also discussed the punishment for forgery, 185 perjury, 186 affrays, 187 and other offenses. 188 In another part of his treatise, Blackstone added: “By the antient law of England, he that maimed any man, whereby he lost any part of his body, was sentenced to lose the like part; membrum pro membro: which is still the law in Sweden. But this went afterwards out of use: partly because the law of retaliation, as was formerly shewn, is at best an inadequate rule of punishment; and partly because upon a repetition of the offence the punishment could not be repeated.” 189 Blackstone’s treatise made reference to a number of non-lethal corporal punishments, including the pillory, 190 and that individuals, for example, “stand two hours on the pillory” 191 or have “both ears nailed to the pillory.” 192

Blackstone, the Oxford scholar, felt strongly that English law—though harsh—was still enlightened compared to the laws of other countries. 193 “Disgusting as this catalogue may seem,” Blackstone wrote of punishments authorized by English law, “it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe.” 194 “[I]t is moreover,” Blackstone explained, “one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons.” 195 “[W]here an established penalty is annexed to crimes,” Blackstone offered, “the criminal may read their certain consequence in that law, which ought to be the unvaried rule, as it is the inflexible judgment, of his actions.” 196

It was after this discussion that Blackstone cited the “cruel and unusual punishments” clause of the English Bill of Rights. “The discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose,” Blackstone first explained, “may seem an exception to this rule.” 197 “But,” he noted, “the general nature of the punishment, viz. by fine or imprisonment, is in these cases fixed and determinate: though the duration and quantity of each must frequently vary, from the aggravations or otherwise of the offence, the quality and condition of the parties, and from innumerable other circumstances.” 198 As Blackstone wrote: “Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it directing such an offence to be punishment by fine, in general, without specifying the certain sum: which is fully sufficient, when we consider, that however unlimited the power of the court may seem, it is far from being wholly arbitrary; but it’s discretion is regulated by law.” 199 “For the bill of rights,” Blackstone emphasized, “has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted.” 200

A. The Traditional Narrative of the Origins of the “Cruel and Unusual Punishments” Prohibition

Prominent constitutional law scholars have long taken note of some of the English history undergirding the Eighth Amendment’s Cruel and Unusual Punishments Clause. “[I]n the late eighteenth century,” Yale Law School professor Akhil Amar writes, “every schoolboy in America knew that the English Bill of Rights’ 1689 ban on excessive bail, excessive fines, and cruel and unusual punishments—a ban repeated virtually verbatim in the Eighth Amendment—arose as a response to the gross misbehavior of the infamous Judge Jeffreys.” 201 “The Founders,” Amar has written, “borrowed the phrase ‘cruel and unusual’ from the celebrated English Bill of Rights of 1689.” “In England,” he explains, “the phrase aimed chiefly to prevent bloodthirsty judges from inflicting savage penalties that were legislatively unauthorized—that is, ‘unusual.’” “If Parliament had previously approved a given punishment for a given crime,” he adds, “that punishment, even if unspeakably inhumane, was not ‘unusual’ within the meaning of the 1689 declaration.” 202

Article 10 of the English Bill of Rights was plainly designed to prevent a reoccurrence of abuses associated with seventeenth-century Stuart reign. 203 The Stuart era was a period of history in which England’s monarchs frequently abused their power and the judicial system, often using common law and prerogative courts to kill, dismember or maim, oppressively fine, or degrade and humiliate their political and religious opponents through the use of the pillory, branding, and ear cropping. 204 The Stuart kings regularly sparred with Parliament and attempted to rule or raise revenue without it. 205 Some were forced to stand in the pillory with signs over their heads declaring their crimes. One such high-profile figure seen by members of England’s Parliament to have been cruelly and unlawfully punished during Stuart rule: Titus Oates, the English clergyman. 206

For his acts of perjury in providing false testimony in treason trials of Catholics wrongfully convicted and condemned to death in connection with the concocted “Popish Plot,” Oates was harshly sentenced in 1685 by the Court of King’s Bench, 207 then led by the notoriously cruel and highly volatile Lord Chief Justice George Jeffreys. 208 “By common law,” one historical account notes of that time frame, “felonies were punishable by death, but perjury was a misdemeanor, and the punishment for a misdemeanor could be any punishment short of death ordered by the judges.” 209 With the death penalty off the table for perjury and a discretionary sentence left in the hands of the Court of King’s Bench judges, Oates was—as legal historians have recalled again and again—infamously ordered to be defrocked, fined, imprisoned for life, flogged, and set in the pillory multiple times a year for the rest of his natural life. 210

Titus Oates’s ordered punishment and the adoption of the English Declaration of Rights occurred in close proximity—and their connection to one another is clear. “Because these events shortly preceded the adoption of the English Declaration of Rights in 1689,” one legal commentator explains of Oates’s sentence and a U.S. Supreme Court opinion authored by Justice Antonin Scalia, “the Harmelin court considered public reaction to the Titus Oates trial crucial to an understanding of the intent behind the ‘cruell and unusuall Punishments’ clause.” 211 Members of Parliament had objected to Oates’s sentence, in part because “the king’s bench, being a temporal court, made it part of the judgment, that Titus Oates, being a clerk, should for his said perjuries, be divested of his canonical and priestly habit, and to continue divested all his life; which is a matter wholly out of their power, belonging to the ecclesiastical courts only.” 212 In seventeenth-century England, common law and ecclesiastical courts coexisted. 213 While the House of Lords refused to reverse Oates’s conviction, Oates—having petitioned Parliament for relief as a victim of the King’s Bench and Lord Chief Justice Jeffreys’s cruelty—was released from prison in the wake of the Glorious Revolution. 214

Driven by parliamentary and Protestant conflicts with King James II, England’s unpopular Catholic monarch, the Revolution of 1688–1689 was a seminal moment in English history. “In 1688–1689, these conflicts culminated in the Glorious Revolution,” Professor John Stinneford sums up a portion of the relevant English history, making this observation of what preceded the Glorious Revolution 215 that produced the English Declaration of Rights and its cruel and unusual punishments prohibition: “Members of the English aristocracy invited William and Mary to invade England and depose King James II on the ground that the king had violated the rights of English subjects in a variety of ways—including through the imposition of ‘excessive Bayle,’ ‘excessive fynes,’ and ‘illegal and cruell punishments.’” After England’s Parliament offered to recognize William and Mary as king and queen “on the condition that they accept a declaration of rights designed to limit the arbitrary exercise of the monarch’s power,” Stinneford recalls, the landmark English declaration was drafted and later codified by Parliament as the English Bill of Rights (1689) and thus “entrenched the constitutional settlement that followed the overthrow of James II.” 216

In the wake of the Glorious Revolution, England’s new monarchs, William and Mary, were also crowned in Scotland, with the Scottish Claim of Right (1689) legitimatizing their coronation there. 217 The Scottish Claim of Right 218 and the Scottish Parliament’s 1701 “Act for preventing wrongous Imprisonments and undue delayes in Tryals” also addressed the issue of torture 219 and other abuses of the criminal law by James II (known as James VII in Scotland). 220 Scotland’s Claim of Right, agreed to by a convention on April 11, 1689, with William and Mary, not being consulted, declared king and queen of Scotland the following day. Thirteen Articles of Grievances, agreed to on April 13, 1689, were also produced by the Scottish convention. 221 Among the grievances: “That most of the Laws Enacted in the Parliament Anno 1685. are Impious and Intollerable Grievances”; “That the Marriage of a King or Queen of this Realm to a Papist, is Dangerous to the Protestant Religion, and ought to be provided against”; and “That the Levying, or Keeping on Foot a Standing Army in time of Peace, without Consent of Parliament, is a Grievance.” 222

When American jurists and scholars recite that the “cruel and unusual punishments” prohibition first originated in the English Declaration of Rights, they have gotten the history wrong by missing consequential prior references. 223 Those references to the cruel and unusual punishments concept can be traced to the reigns of King James I and his son, King Charles I—two key figures in royal English history. James I (1567–1625), known in Scotland as King James VI, was the first Stuart king of England, with his reign in England beginning in 1603 after Queen Elizabeth’s death and ending with his own death in 1625. 224 On April 10, 1606, near the beginning of his reign, James I chartered the Virginia Company of London, granting its proprietors “license to make habitation, plantation, and to deduce a colony of sundry of our people into that part of America, commonly called Virginia . . . not now actually possessed by any Christian prince or people.” 225 After Queen Elizabeth I’s death, 226 the crowns of Scotland, England and Ireland were worn by the same monarch, 227 with King James I (James VI in Scotland) ushering in a new era when he became England’s king. 228

James I’s son, King Charles I, fought bitterly with Parliament, which sought to curb his royal prerogative, and was ultimately executed in 1649 after his unpopular period of personal rule (1629–1640), 229 violent conflicts in Scotland and Ireland and years of civil war in England, 230 and being put on trial for treason. 231 His own public execution by beheading followed on the heels of the impeachment, attainder, and execution of his two chief advisors, Thomas Wentworth (the 1st Earl of Strafford) 232 and William Laud (the Archbishop of Canterbury). 233 They, like the king himself, had accumulated many enemies over time. 234 Wentworth was executed in 1641 as a result of Parliament’s passage of a bill of attainder, 235 while Laud—the “high church” archbishop—was executed in 1645, 236 also as a result of a bill of attainder. 237

The trial and execution of Charles I set the stage for the rise of Oliver Cromwell as the Lord Protector of England, Scotland and Ireland—an office he held from 1654 to 1658. After that military dictatorship collapsed after Cromwell’s death, with Oliver Cromwell’s son, Richard, lacking his father’s political skills and lasting less than a year in that high office, the Stuart monarch was restored in 1660, with Charles II assuming the throne. 238 Although Charles I had been executed following his trial, his sons, Charles II and James II, nevertheless thumbed their noses at Parliament and the concept of popular sovereignty. Upon assuming the throne, Charles II—who had, after his father’s execution, vowed revenge upon those responsible for his father’s death 239—ordered that the bodies of Oliver Cromwell and two of his compatriots be dug up, hanged, and decapitated, and their heads were impaled on spikes and carried through London. 240

Charles II and James II believed, like their father, in the “divine right of kings,” desiring to exercise absolute power. 241 This ultimately led the English people—through the Revolution of 1688–1689—to seek written legal protections against further monarchical abuses. 242 Among the provisions of the English Bill of Rights as capitalized and spelled in some early English sources: “excessive Baile ought not to be required, nor excessive Fines imposed; nor cruell and unusuall Punishments inflicted.” 243 As one history notes of the English Bill of Rights: “Some of its most important provisions reflected the experience of Charles II and James II’s extensions of the prerogative and their use of the law courts as instruments of political manipulation and vengeance.” 244

In truth, one cannot possibly understand the cruel and unusual punishments prohibition without wading into the morass of English history, so a recitation of at least a sketch of a bit more of that history is warranted to understand how the prohibition came to be codified into English law. After the Restoration of 1660, King Charles II of the House of Stuart reigned until his death in 1685, 245 with “Whigs” such as the Earl of Shaftesbury and his close associate, physician and political theorist John Locke, 246 having previously sought to exclude James—then the Duke of York—as an heir to the throne, fearing that he would rule as a Catholic tyrant. 247 On the other hand, during the Exclusion Crisis, Charles II and his supporters, known as “Tories,” 248 insisted that Charles II’s younger brother, James, a Catholic convert, should inherit the crown—which is exactly what happened after much intrigue in Parliament and among English aristocrats, including multiple treason trials arising out of the Rye House Plot (1683) that provided the Stuarts with an opportunity and an excuse to silence—indeed, to kill—their harshest critics. 249

The Rye House Plot—as legal historian John Langbein writes—“resulted in the conviction and execution, among others, of two leading Whig figures, Lord William Russell, their leader, and the political theorist Algernon Sidney.” 250 The Rye House Plot, as Langbein explains, “was a supposed conspiracy among Whig extremists determined to prevent James from acceding to the throne” and involved a plot to assassinate the king. 251 As one source summarizes the end result of the Exclusion Crisis and the Rye House Plot: “The Whigs failed, and James Stuart, Duke of York became King James II in 1685. He governed as a tyrant, just as Locke and Shaftesbury had feared.” 252 After James II and his allies ruthlessly crushed a rebellion in 1685 led by a Presbyterian, James Scott, the 1st Duke of Monmouth, often referred to as Charles II’s “bastard” son, 253 the Revolution of 1688-1689 led by Prince William of Orange—a Dutch stadtholder—ultimately deposed James II and brought Protestant rulers, William and Mary, to the throne. 254

Eighteenth-century Americans embraced natural law 255 and relied heavily on the application of common-law principles to protect their legal rights. 256 Consequently, the prohibition of cruel and unusual punishments—already characterized by England’s Parliament as an “ancient” right in the late seventeenth century 257—must be seen through those lens, in addition to the prohibition’s written codification in the English Bill of Rights and, later, the Eighth Amendment. 258 When, in Williamsburg, the leading Virginians of the Revolutionary War era gathered for a convention and adopted the Virginia Declaration of Rights (1776) “in the heat of rebellion against British oppression of the American colonies,” they were—as one legal commentator puts it—espousing “the inherent and natural rights of men, including the right to be free from cruel and unusual punishments” that was, itself, seen as grounded in England’s common law. 259

At a distance of approximately 250 years, it is unknowable what Virginians collectively thought about their own “cruel and unusual punishments” prohibition, let alone what they believed about the parallel English prohibition put in place in 1689. 260 Of course, what twenty-first-century jurists do with their own admittedly incomplete knowledge of seventeenth-century English history and eighteenth-century American society 261—and of what lawmakers in those eras meant, or might have meant, by using the “cruel and unusual punishments” language (whether for their generations or future ones) 262—is, by definition, up to those living, breathing judges to decide and adjudicate in legal cases as they arise. 263

Whether America’s founders, 264 framers 265 and ratifiers, 266 misinterpreted or misunderstood (or simply gave little thought to) the nature of the English bar on “cruel and unusual punishments” 267 when they adopted revolutionary era declarations of rights and state constitutions 268 and ratified the Eighth Amendment in 1791 is itself unknowable at a distance of more than two centuries, to say nothing about what the broader American public 269 may or may not have thought or known about what the lofty sounding prohibition on “cruel and unusual punishments” meant, if they even gave those familiar words a second thought after seeing them in print. 270 By the time Americans drafted their revolutionary era constitutions and the U.S. Constitution’s Bill of Rights, the prohibition against “cruel and unusual punishments”—as one scholar writes—“was considered to be constitutional boilerplate.” 271

What is clear is that the legal prohibition—still an integral part of state constitutions and the U.S. Constitution, 272 and which many eighteenth-century Americans in the midst of the Revolutionary War (1775–1783) and its heady aftermath no doubt gave little thought to beyond knowing that it derived from English law, arose out of Stuart abuses, and afforded an important and desired protection against future abuses—must be interpreted in real-world cases and controversies involving prisoners whose very lives may be on the line. 273 And that is so whether American jurists embrace originalism, living constitutionalism, or some blended version of those judicial philosophies. 274 Notably, while Justice Antonin Scalia once offered that an originalist reading of the U.S. Constitution would permit branding or flogging (once common punishments), he also—at least at one time—called himself a “faint-hearted originalist” because he could not conceive of upholding the constitutionality of flogging or hand branding as criminal punishments—and doubted whether any federal judge would do so in the face of an Eighth Amendment challenge. 275

To truly understand the history of the English and American prohibitions on “cruel and unusual punishments,” one must explore—it turns out—many sources and multiple historical events long pre-dating the Revolution of 1688–1689. In particular, one must study poetry written by George Wither, an English courtier who fought on the side of Parliament in the English Civil War and served on a committee for the sale of the late king’s goods after Charles I’s execution; 276 the nature of natural rights, the English common law, and their ancient roots; abuses of prerogative courts (i.e., England’s Court of Star Chamber and Court of High Commission and Ireland’s Court of Castle Chamber), which used inquisitorial methods and resorted to extraordinarily cruel punishments; the use of a variety of non-lethal corporal punishments, especially as painfully inflicted upon Puritan dissenters in the 1630s by those insisting on religious conformity to Church of England practices; how the king’s subjects frequently expressed their displeasure through petitions and remonstrances, or written protests; the everyday use of the English language in the seventeenth century, with references to the cruel and unusual punishments concept appearing as early as Willliam Shakespeare’s lifetime; and the versatility of the “cruel and unusual punishments” moniker. Each of these subjects is addressed below.

B. The U.S. Supreme Court’s Reinforcement of the Traditional Narrative

In prior cases, the U.S. Supreme Court and other courts have consistently traced the Eighth Amendment’s origins back to the English Declaration of Rights, codified as the English Bill of Rights in 1689. 277 “The specific incident giving rise to the provision was the perjury trial of Titus Oates in 1685,” Justice William Brennan wrote of England’s prohibition against “cruel and unusual punishments” in his Furman v. Georgia concurrence. 278 Although the punishments imposed upon Oates, the convicted perjurer, were customary ones when considered individually, he suffered an array of punishments at the hands of the English judicial system that, collectively or because of their unique, unprecedented combination, 279 deeply troubled many Englishmen. 280 “There is no doubt that the Declaration of Rights is the antecedent of our constitutional text,” Justice Scalia wrote in announcing the Supreme Court’s judgment in Harmelin v. Michigan, 281 pointing out that the English Declaration of Rights “was promulgated in February 1689, and was enacted into law as the Bill of Rights.” 282

The English Bill of Rights codified a number of legal rights, with its “cruel and unusual punishments” prohibition rooted, it turns out, in long-forgotten prior literary sources and England’s common law tradition. Perhaps not surprisingly given its inclusion in that historic document, that legal prohibition has drawn extensive commentary from many quarters over time, especially because of its codification into English and then American law. Along with being debated in both houses of England’s Parliament, the legal prohibition was destined to draw the attention of multiple figures of considerable prominence in legal circles. For instance, the now-little-remembered Irish legal writer Sollom Emlyn (1697-1754) wrote a preface to A Complete Collection of State-Trials, and Proceedings for High-Treason, and Other Crimes and Misdemeanours (1730) in which he observed that a judge who uses “discretionary Power to gratify a private Revenge, or the Rage of a Party, by inflicting indefinite and perpetual Imprisonment, excessive and exorbitant Fines, unusual and cruel Punishments, is equally guilty of perverting Justice and acting against Law, as he, who in a Case where the Law has ascertained the Penalty, willfully and knowingly varies from it.” 283

For Sollom Emlyn, judges exercising their discretionary sentencing authority had a common-law duty to set reasonable not excessive penalties. “[W]here a court has a power of setting Fines,” Emlyn made clear in his preface, “that must be understood of setting reasonable Fines: ‘an excessive Fine,’ says lord Coke, ‘is against law,’ and so it is declared to be by the Act ‘for declaring the Rights and Liberties of the Subject.’” 284 In his Institutes of the Lawes of England, Sir Edward Coke (1552–1634) wrote extensively about the common law, 285 as well as about fines and amercements, 286 and he described the Magna Carta as “but a confirmation or restitution of the Common Law.” 287 The English common law itself interpreted the Magna Carta as requiring reasonable and proportional fines. 288 The English Bill of Rights, Emlyn observed, inverting two key words from what appears in Parliament’s Bill of Rights, “declares the Illegality of unusual and cruel Punishments.” 289 Likewise, the still-famed and much-cited Oxford-educated jurist, Sir William Blackstone (1723-1780), wrote about the English prohibition against cruel and unusual punishments in the fourth volume of his popular treatise, Commentaries on the Laws of England (1769), with Blackstone—on the flip side to an “unusual” punishment—mentioning the “usual punishment” for petit treason. 290

There is, certainly, considerable evidence to show that Titus Oates’s ordered punishment helped to inspire the codification of the bar on “cruel and unusual punishments” in article 10 of the English Bill of Rights, even though that terminology had, quite literally, been around for decades in the English language before Oates’s 1685 sentencing for perjury. After the English Declaration of Rights was drafted and read as part of William and Mary’s acceptance of the English throne, Oates petitioned the House of Lords to set aside his sentence as illegal 291 and his case became a cause célèbre and one of the first subjects of debate over England’s ancient and then-hortatory bar on “cruel and unusual punishments.” 292 As Anglo-American history shows, the tradition of people claiming a particular punishment is “cruel and unusual” has continued ever since.

The U.S. Supreme Court’s reinforcement of the traditional narrative of the history of the cruel and unusual punishments concept has stymied a full understanding of that concept’s origins, even though an understanding of the Titus Oates case is absolutely critical to understanding that concept’s codification in the English Bill of Rights. Although the House of Lords affirmed the judgment against Titus Oates following his conviction for perjury, a minority of peers dissented and “their statement”—as Justice Scalia observed in Harmelin v. Michigan of the English legal prohibition—“sheds light on the meaning of the ‘cruell and unusuall Punishments’ clause.” 293 Oates is still remembered as a rogue for his scurrilous acts of perjury. 294 In 2005, Oates appeared on a list of the ten “worst” Britons of the last 1,000 years prepared by a group of historians for the BBC History Magazine. 295

C. The Bar on Cruel and Unusual Punishments: The Star Chamber and the Search for Meaning

The meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause has been especially contentious in American law, 296 with multiple jurists 297 and scholars searching for, and writing about, the “original meaning” of its language. 298 For example, Professor John Stinneford has written that, although “the term ‘unusual’” in the seventeenth and eighteenth centuries “had many of the meanings we currently associate with the term” (i.e., “rare,” “uncommon,” “out of the ordinary”), that word “also had a more specific meaning . . . as a legal term of art: ‘contrary to long usage’ or ‘immemorial usage.’” 299 I have, myself, written extensively about the Eighth Amendment in a prior book 300 and in multiple book chapters 301 and law review articles. 302 For instance, I have studied the concepts of “usual” versus “unusual punishments” in Anglo-American law. 303 Of course, the varied prohibitions against “cruel and unusual punishments,” “cruel or unusual punishments,” or simply “cruel punishments” were included in revolutionary era state constitutions 304 even before the Eighth Amendment’s ratification in 1791. 305

While the U.S. Supreme Court and modern Eighth Amendment scholars have conventionally traced the Eighth Amendment’s “cruel and unusual punishments” prohibition back no further than the 1680s, 306 those writings have missed the actual first usages of the cruel and unusual punishments language. One scholar, University of San Diego law professor Donald Dripps, has written that “[t]he full story” of the legal prohibition “begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.” 307 In his 2023 article, Professor Dripps ties England’s 1680s “cruel and unusual punishments” prohibition to a concern about not allowing a resurrection of England’s prerogative Court of Star Chamber, which Parliament had abolished in 1641 along with the ecclesiastical Court of High Commission. “[A]lthough the methods of punishments inflicted on Oates—two days of horrific flogging, recurring stands in the pillory, and life imprisonment—were horrific,” Dripps explains, “they were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First U.S. Congress in 1790.” 308 “Sentencing Oates,” Dripps writes of the Court of King’s Bench and its one-time leader, Lord Chief Justice George Jeffreys, “claimed for the King’s Bench all the Star Chamber’s lawless power to determine punishments less than capital.” 309

Article 10 of the English Bill of Rights, restricting such discretionary authority, “repudiated this attempt to resurrect the Star Chamber,” Dripps concludes, stressing that the First Congress, “responding to Anti-Federalists fears about Congress adopting European-style executions by torture, freighted the ‘cruel and unusual’ language with two additional meanings.” 310 As Dripps, comparing the English and American provisions, explains: “The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion.” 311 “Synthesizing the English original and the later concerns of the American founders,” Dripps writes, “the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.” 312 The U.S. Supreme Court, in what Justice William Brennan once described as the “obvious unconstitutionality of such ancient practices as disembowelling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking on the wheel,” emphasizes that the Eighth Amendment forbids “inhuman and barbarous” methods of execution that inflict “torture or a lingering death.” 313

At the First Congress, there was only limited debate over the language that became the U.S. Constitution’s Eighth Amendment. 314 At one point Representative William Loughton Smith of South Carolina “objected to the words ‘nor cruel and unusual punishments’” because of his view that “the import” of those words was “too indefinite.” In another instance, Representative Samuel Livermore of New Hampshire offered this perspective of the Eighth Amendment’s text: “The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.” 315 In particular, Representative Livermore offered these public musings on the import of the proposed language:

What is meant by the terms excessive bail? Who are to be judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind. 316

In spite of these objections, when “[t]he question was put” on the Eighth Amendment’s text in the First Congress, the historical record shows “it was agreed to by a considerable majority.” 317

In his 1986 Oliver Wendell Holmes, Jr. Lecture, Justice Brennan—examining the Eighth Amendment’s text and discussing the possible intent of its framers—argued that capital punishment is unconstitutional. “The assertion that the Constitution shows that the Framers intended that there be capital punishment is, in my view, untenable,” Brennan observed, noting that there is “no language” in the Eighth Amendment “which suggests that death was to be regarded for all time as presumptively not cruel and unusual.” 318 “[T]he assertion that capital punishment must be constitutional because the ‘intent of the Framers’ was clearly to retain it,” Brennan said, “turns out to be based on little more than assumption and negative implication.” 319 “The tenuousness of the negative implication,” he stressed, “is especially apparent given Livermore’s objection during the first Congress’s debate . . . that the [E]ighth [A]mendment would limit the Congress’s power to impose death, or earcropping.” 320 “We know that the language of the [E]ighth [A]mendment was taken from the English Bill of Rights of 1689, but we do not know why the Framers were particularly attracted to that language or, for that matter, exactly what the language signified to the English,” Brennan wrote. 321

Of course, Justice Brennan and Professor Dripps are not alone in having diligently searched for, or intellectually explored, what originalists would consider the Holy Grail: the Eighth Amendment’s original public meaning or purpose. In fact, the Eighth Amendment’s prohibition against “cruel and unusual punishments”—in part because of its unique, centuries-old wording—has been described as “a constitutional enigma.” 322 Jurists and scholars have long sought to ascertain the meaning of that prohibition, 323 with the U.S. Supreme Court itself using multiple tests—from its “evolving standards of decency” test to its “deliberate indifference” and “malicious and sadistic” standards—over time to determine if a punishment is an Eighth Amendment violation and constitutes a “cruel and unusual” punishment. 324 People may draw different lines in distinguishing between cruel versus non-cruel acts and between unusual versus usual ones, but cruel and unusual are common words that—on their face—are admittedly quite capable of interpretation by judges. Judges, like anyone else, can recognize a cruel act when they see one, and it is hardly beyond the capacity of jurists to judge what is unusual.

Although the U.S. Supreme Court has long interpreted the Eighth Amendment to bar barbarous punishments and torture, 325 the Court has failed to classify capital punishment as an Eighth Amendment violation since backing away from Furman and upholding the punishment’s constitutionality in Gregg in 1976. 326 The use of capital charges, death sentences, and state-sanctioned killing in the United States thus continues, at least in the jurisdictions that still authorize it. 327 Meanwhile, American jurists have already classified credible death threats, including mock executions, as cruel and torturous in nature. 328 As I have pointed out elsewhere, one of the death penalty’s immutable characteristics is that—beyond its arbitrary and discriminatory administration throughout history 329—it makes regular use of threats of death that, in other contexts, are regularly classified as psychological torture. 330

A. The Generall Historie of the Magnificent State of Venice

The cruel and unusual punishments terminology—as the uncovered historical sources in this Article reveal—actually appears in multiple seventeenth-century sources, and many decades earlier than the 1680s, albeit in non-judicial, non-legislative contexts. 331 Of particular interest, the terminology shows up as early as the second decade of the seventeenth century, including in an index entry in The Generall Historie of the Magnificent State of Venice (1612). The book, written by Thomas de Fougasses, “Englished” by “W. Shute,” and printed four years before William Shakespeare’s death in 1616, refers to “A cruell and unusuall punishment”—a reference to Venetian executions in which people, for treasonous conduct, were buried alive. 332 In his own plays, including Hamlet, Romeo and Juliet, and Titus Andronicus, Shakespeare himself referred to the act, fear, or punishment of being buried alive. 333

In “A Table of the principall matters contained in the first volume” of The Generall Historie of the Magnificent State of Venice—an index said to be “compiled for the more easie finding out thereof by the right course of Alphabet”—one find entries for, among other things, “A cruell and unworthie act” (listing page 18), “A punishment of God” (also listing page 18), “A cruell night-fight” (listing page 201), “A divine punishment” (listing page 245), “A law against murtherers” (listing page 277), “A cruell and unusuall punishment” (listing page 287), “A cruell decree of the Florentines” (listing page 328), “A cruell assault by night” (listing page 501),”A cruell fight betwixt Alphonso Duke of Calabria, & Roberto of A rimini General to the Venetiãs” (listing page 502), “Cruel death of the bishop of Grada” (listing page 21), “Cruell intent of the Calloprini” (listing page 53), “Crueltie of the Mahometans” (listing page 70), “Crüeltie against the Law of Nations” (listing page 105), “Cruell determination of a woman” (also listing page 105), “Crueltie of the Greekes and Genoueses” (listing page 150), “Candiots crueltie to the Venetians” (listing page 219), “Cruell warre at Tenedos” (listing page 276), “Carrario his great cruelty” (listing page 288), “Eccelin his crueltie against the Paduans” (listing page 143), “Francisco Carrario his great cruelltie” (listing page 288), “Great crueltie of the Huns” (listing page 40), “Great ingratitude and crueltie of a brother” (listing page 116), “Great crueltie falsly imputed to the Venetians” (listing page 203), “Great crueltie of the King of Hungarie” (listing page 292), “Great crueltie” (listing page 383), “The Emperours cruell Edict against the Venetians” (listing page 54), “Turkish cruelty” (listing page 424), and “Wonderfull crueltie of a Tyrant” (listing page 138). 334

The unpaginated index’s reference to “A cruell and unusuall punishment” comes in a section of The Generall Historie of the Magnificent State of Venice titled “The Eighth Booke of the Second Decad of the Historie of Venice.” 335 The passage to which it refers—located in the book’s first volume, on page 287—is about a siege of Padua by Francisco Gonzaga and its outcome and aftermath. 336 The history reports that the Venetians, after “they levied new forces,” “made Francisco Gonzaga, their associate in this warre, Generall of that new Armie.” 337 “Gonzaga having spoiled all the Paduan territorie, and taken divers townes, came and besieged Padua,” the history reports. 338 With “the Paduans in continuall alarme,” and “whilst Padua was thus besieged and defended” by those “bravely” defending “the Citie walles,” the history observes, “Massolerio the Venetian was suspected secretly to have shot arrowes into the Citie with letters tied to their heads.” 339

The Venetian history notes that Massolerio—found to be providing information to the enemy—was then “imprisoned” and “sent to Venice, where being convicted of the crime he was hanged from the highest place of the Palace with a long rope.” 340 “The same day his brother and two young Priests,” the history added, “were put alive into the ground betwixt the two Columnes their heads downewards: The which punishment being not as yet usuall, did greatly terrifie all men.” 341 The name of Massolerio is also found in Pietro Giustiniani’s Le Historie Venetiane (1566), 342 Juan de Pineda’s Quarta parte de la monarchia ecclesiastica, o historia universal del mundo (1606), 343 and Giuseppe Cappelletti’s Storia della Repubblica di Venezia (1850). 344

The two massive granite columns, which sit in Venice’s Piazzetta, with the Doge’s Palace on the left and the Biblioteca Marciana—a public library—on the right as one faces the water, served as a ceremonial entrance to the city but were also used to support a scaffold for executions. “Near the water’s edge, serving as a ceremonial ‘gateway’, are two huge monolithic granite columns brought back to Venice from the ill-fated expedition to Constantinople by Doge Vitale Michiel II and erected here at the end of the 12th century when they were given their Veneto-Byzantine capitals,” Alta Macadam writes in the Blue Guide to Venice, giving this additional information about the columns: “Incredibly tall, one bears a bronze lion or griffin. Thought to be a Hellenistic work (4th-3rd century BC), it may have come from a tomb in Cilicia or Tarsus and has been adapted to represent a winged lion, the symbol of St. Mark.” The nearby St. Mark’s Basilica served as the doge’s private chapel, with one leading history of Venice stating that the origins of the lion atop one of the two columns are “uncertain—perhaps Persian (fourth century A.D.) or Chinese, with wings added.” “The other column,” Macadam observes, writing in the present day, “is crowned with a copy of a statue of the first patron saint of Venice, the Greek soldier St. Theodore, accompanied by his dragon (the original statue is in the courtyard of the Doge’s Palace).” “Because of the columns’ immense height, both statues are seen silhouetted against the sky,” Macadam writes, further gushing: “They constitute perhaps the most impressive ornaments to any square in the world.” 345

Given the use of “not as yet usuall” in the sentence of the Venetian history prepared by Fougasses and translated by Shute, it appears to be the condemned being buried alive between the two granite columns (known as the “Red Columns”), 346 their heads pointing downward at the public execution site, 347 to which the “cruell and unusuall punishment” reference in the book’s index relates. 348 The large and historic red Egyptian granite columns, said to have arrived in Venice in the twelfth century and erected by Nicolo Barattieri (the designer of the first Rialto Bridge), “mark the spot”—one Venice walking tour guide notes—“where criminals were executed, either by hanging, decapitation or being buried alive.” 349 Indeed, on page 287 of The Generall Historie of the Magnificent State of Venice, a printed marginal notation—in italics—reads “A cruell and unusuall punishment” at that location in the book. 350

One source recounts that those sentenced to die in Venice “were condemned to the most excruciating tortures,” 351 while other sources record that while “[s]traightforward hanging or decapitation were the customary techniques” for public executions, “refinements were available for certain offenders, such as the three traitors who, in 1405, were buried alive,” “head down,” “between the two granite columns on the Molo, as this stretch of the waterfront is called.” 352 The other two marginal notes for that paragraph of the Venetian history prepared by Fougasses and translated by Shute—also printed in italics, and summarizing how Massolerio the Venetian and Giovanni of Padau were executed—read, respectively, “Massolerio the venetian being accused and convicted of treason is punished” and “Giovanni of Padua is punished for having secret conference with the enemie.” 353

Histories of Venice were popular, with the Fougasses title appearing after the English-language version of Cardinal Gasper Contareno’s The Commonwealth and Government of Venice (1599), published in London and translated into English from Italian by Sir Lewes Lewknor (a law-trained English courtier and MP who served as Master of the Ceremonies to King James I of England) 354 and before other Venetian histories such as James Howell’s Survey of the Signorie of Venice (1651) and Amelot de La Houssaye’s History of the Government of Venice (1677). 355 Readers of Venetian histories learn that, in the popular tourist destination, a variety of public and privately imposed punishments were once put to use. 356 On July 24, 1405, one history notes, three priests—after being tortured and found guilty of conspiring against the Venetian patriciate—were buried alive in three graves dug between the two imposing columns that stand in Venice’s St. Mark’s Square. 357

The Republic of Venice—long known as La Serenissima (the Most Serene Republic)—has, in spite of its tranquil-sounding sobriquet, witnessed many executions and acts of violence and torture, with a variety of people—from its one-time leader, Marino Falier, to an array of conspirators and common criminals—executed in a variety of ways. While Falier, Venice’s head of state, or doge, was beheaded for conspiring to overthrow the republic, his conspirator, a man named Calendaria, was strangled to death, “strung up”—as one modern history, Venice Observed (1963), puts it—“between the two red columns on the Doge’s Palace loggia, on the side facing the Piazzetta.” “In the upper balcony (loggia) between the two red columns (9th and 10th from left-corner),” one travel guide reports, “the Political Prisoners were put to death: here Calendaro and Bertuccio Israello, the leaders in Mario Faliero’s conspiracy, were hanged, gagged, that they might not appeal to the populace, April 16, 1355, and many of the minor conspirators day by day following.” 358 “From between the two columns of red marble, the ninth and tenth from the upper portal of ‘La Loggia,’” another travelogue emphasizes, “the Republic anciently proclaimed its sentences of death, and there published them to the world.” 359

Those two marble columns on the Doge’s Palace, Mary McCarthy’s history, Venice Observed, stresses, “are supposed to have turned red from the blood that ran down them.” The two red columns on the upper loggia or colonnade of the Doge’s Place—columns that overlook the Piazzetta San Marco—were used by Venetian authorities not only as the place to read out death sentences 360 but to hang criminals, with gags sometimes placed in their mouths to prevent them from speaking. 361 “It was between these columns,” one history notes, “that the state executed many of its political prisoners, in full view of the crowds which assembled on the Piazzetta; and, in many instances, gags were placed in their mouths, in order that their dying voices might not stimulate the vengeance of those angry citizens in whose cause they mostly died.” 362 “There are,” McCarthy notes, actually “two sets of ‘fatal pillars,’ the big granite ones on the Molo and the smaller, red ones of the Doge’s Palace loggia.” Both the smaller marble columns on the Doge’s Palace and the two massive granite columns in the Piazzetta within view of those marble columns “were used for public executions and for the display of corpses,” so that—as McCarthy emphasizes—“it is hard to tell, in any given account, which ones are meant.” 363

Naturally, whether a method of execution or a site of execution is usual or unusual depends upon the frequency of its use. 364 Venice in the Thirteenth and Fourteenth Centuries (1910) described the execution of Marin Bocconio and his conspirators for treason in 1300, giving this illustrative account: “The plot was betrayed to the doge, who had Bocconio and ten others arrested and ‘hung between the two marble columns which are near the great gate of the doge’s place,’ the usual place of public executions.” A footnote to that text clarifies: “The two columns are, of course, those of the Piazzetta.” 365 “The practice of burying people alive was rare and almost unknown in Venice,” David Busato writes in Venice Secrets (2018), with that compilation—published in both English and Italian—taking note not only of the three priests put to death in that manner in 1405 but of a monk buried alive on April 3, 1561, and another priest buried alive on June 14, 1561. 366

B. Methods of Execution as Cruel and Unusual Punishments

Many corporal punishments and methods of executions from ancient, medieval, Renaissance, or Enlightenment times would now be categorized as unusual, but in prior centuries, some societies used bizarre punishments or particular modes of execution that were not used at all in other locales or that were considered barbarous, strange, unjust or unusual by other societies. In parts of Europe, burying alive was variously reported to be “a common form” or “not unknown form” of capital punishment in prior centuries, 367 at least for certain categories of offenders, 368 though in certain locales, including Venice, that practice was rarely used in comparison to other methods. 369 “[B]urying alive as a specific method of execution seems to have been but infrequently practised,” George Ryley Scott writes in The History of Torture Throughout the Ages (2009), giving his own take on the practice, noting that burying alive was employed in France and that “in 1460, a woman named Perette, accused of theft, was condemned by the Provost of Paris to be ‘buried alive before the gallows.’” 370

England—along with a host of other obscenely cruel punishments—also made use of the practice in Tudor and ancient times. 371 “In the time of Bracton,” George Crabb writes in A History of English Law (1831), “we read of various corporal punishments, as beheading and hanging, for the men, and drowning, for the women, denoted by the words furca et fossa; besides burning, burying alive, mutilations, imprisonment, punishment, abjuration of the realm, pillory, &c.” “To these were added degradation, forfeitures, fines, and amercements,” Crabb observes, adding: “Bracton also speaks of torture; but this does not appear to have been favored by the common law, although admitted by the civil law.” 372 Dictionaries define vivisepulture as “[t]he burial of a person alive” 373 or “[b]urial of one who is alive,” 374 with other words—defossion and taphephobia—also used to describe, respectively, “[e]xecution by being buried alive” or “burial alive” and the fear of being buried alive. 375

Various locales have utilized various methods of executions—and varying sites for executions—over the centuries. “[F]or public executions,” a Venetian history notes of the two large columns—popularly known as the Columns of San Marco and San Teodoro, and collectively as the “Red Columns” 376—that still stand along the bustling waterway in Venice, “the usual site was the pavement between the two granite columns on the Molo, as this stretch of the waterfront is called.” As that source explains of the place so many tourists now gather before touring the Doge’s Palace or boarding gondolas or water taxis: “Straightforward hanging or decapitation were the customary techniques, but refinements were available for certain offenders, such as the three traitors who, in 1405, were buried alive here, head down.” 377 “The Piazetta in front of the Piazza was the site for the city’s public executions,” another modern source states, adding of that much-visited locale: “Between the two columns the executioner hanged wrong-doers, or cut their heads off. Bored with the humdrum slaughter, he buried three traitors alive here in 1405, leaving only their legs visible.” 378

Live burials as punishments appear in various historical accounts. Jon Bondeson’s Buried Alive: The Terrifying History of Our Most Primal Fear (2022) documents how live burials—never, admittedly, the most frequent method of execution in bygone centuries—were nevertheless once used as a particularly cruel and horrific method of execution. 379 “[I]n medieval Italy,” another commentator explains, commenting on Bondeson’s study of the practice, “murderers who refused to repent were buried alive, a practice referred to in Dante’s Inferno.” 380 This mode of capital punishment was, in prior centuries, just one of many horrific ways in which people were put to death. “Some of the ancient methods of execution,” one source recalls, “include being burned, hanged, stoned, boiled in oil, beheaded, disemboweled, buried alive, thrown to wild beasts, crucified, drowned, crushed, impaled, shot, flayed alive, and torn apart.” 381 The common denominator of all those methods: the death of the offender.

Although the U.S. Supreme Court has never cited The Generall Historie of the Magnificent State of Venice (1612), it has previously interpreted the U.S. Constitution’s Eighth Amendment (at least in dicta) to bar certain methods of execution. 382 For instance, the Supreme Court, in discussing the “cruel and unusual punishments” prohibition, wrote that “if the punishment prescribed for an offense . . . were manifestly cruel and unusual as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.” 383 The Supreme Court has made such pronouncements even as the Court has approved the death penalty’s use (at least in some contexts) and various other methods of execution, including death by electrocution, firing squad, and lethal injection. 384

Citing precedents and a work of American history, Justice Neil Gorsuch’s opinion for the Court in Bucklew v. Precythe (2019), specifically upheld the constitutionality of Missouri’s lethal injection protocol, finding the death penalty’s imposition to be constitutional. As the Court held in that case: “The Constitution allows capital punishment. In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding.” “Nor did the later addition of the Eighth Amendment outlaw the practice,” Justice Gorsuch’s opinion continued, concluding: “On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a ‘capital’ crime and ‘deprived of life’ as a penalty, so long as proper procedures are followed.” “And the First Congress, which proposed both Amendments,” Gorsuch added, “made a number of crimes punishable by death.” “While the Eighth Amendment doesn’t forbid capital punishment,” Gorsuch wrote, “it does speak to how States may carry out that punishment, prohibiting methods that are ‘cruel and unusual.’” “What does this term mean?” Justice Gorsuch asked before turning his attention to the eighteenth century—as an originalist, his happy place—when that phraseology, chosen for the Eighth Amendment, was lifted from the English Bill of Rights and the Virginia Declaration of Rights. 385

In examining eighteenth-century sources in an attempt to divine what America’s founders meant or understood in the Eighth Amendment by “cruel and unusual punishments,” Justice Gorsuch compared English laws with then-existing American practices. “At the time of the framing,” Gorsuch, quoting Sir William Blackstone’s Commentaries on the Laws of England (1769), wrote of the period before the U.S. Constitution and its Bill of Rights came into force, “English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which ‘terror, pain, or disgrace [were] superadded’ to the penalty of death.” 386 “These,” Gorsuch stressed, “included such ‘[d]isgusting’ practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.’” 387 “Methods of execution like these,” Gorsuch opined, “readily qualified as ‘cruel and unusual,’ as a reader at the time of the Eighth Amendment’s adoption would have understood those words.” 388

Citing the definitions of cruel from Samuel Johnson’s and Nathaniel Webster’s popular dictionaries, Justice Gorsuch then wrote of the methods of execution he identified: “They were undoubtedly ‘cruel,’ a term often defined to mean ‘[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,’ or ‘[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness.” 389 “And by the time of the founding,” Gorsuch continued, “these methods had long fallen out of use and so had become ‘unusual.’” 390 “Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way,” Gorsuch wrote, adding of one prominent American revolutionary and early legal commentators: “Patrick Henry, for one, warned that unless the Constitution was amended to prohibit ‘cruel and unusual punishments,’ Congress would be free to inflict ‘tortures’ and ‘barbarous’ punishments. Many early commentators likewise described the Eighth Amendment as ruling out ‘the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.’” 391

Notably, the concept of torture is now understood much differently than in the eighteenth century 392 and the hortatory prohibition of “cruel and unusual punishments” in the English Bill of Rights did not, in and of itself, quell the use of barbarous methods of execution—as least in law. “As William Blackstone made clear to lawyers in the American Founding era,” one Eighth Amendment scholar, Laurence Claus, observes, “the English Bill of Rights did not condemn methods of punishment—not even the grotesque practice of drawing and quartering traitors.” 393 Sir Edward Coke had defended hanging, drawing, and quartering as “godly butchery,” 394 and that grotesque punishment 395 and others, including burning female felons to death, horrifically continued even after the adoption of the English Bill of Rights. 396 In that respect, some American courts got the relevant English history at least partially wrong, as England’s Parliament—in making use of the “cruel and unusual punishments” language—did not intend (at least in 1689) to abolish extreme methods of execution, 397 although certain seventeenth-century English practices had certainly fallen out of favor in America before the Eighth Amendment’s ratification. 398

Judges are not Ph.D.-trained legal historians, so it is not entirely surprising that errors get made by American judges in recounting the history. “The language in its English origins,” Professor Claus explains, “did not concern vicious methods at all; the notorious punishments that Parliament called cruel and unusual were targeted, novel combinations of wholly accepted methods.” 399 “Some of the participants in Bonnie Prince Charlie’s eighteenth-century uprising were later drawn and quartered,” Claus writes, 400 stressing—with citations to nineteenth-century English statutes—that “[f]ormal elimination of these official methods of punishment in Britain had to await the nineteenth century.” 401 Of course, lawyers and judges are trained to interpret words and phrases—and cruel and unusual are everyday words that, like the concepts of cruelty and unusualness, have commonly understood meanings. 402

A. George Wither’s Abuses Stript, and Whipt and Juvenilia

The cruel and unusual punishments concept also appeared in the 1610s in lines of satirical verse written by George Wither, then a young English courtier, satirist, and poet. 403 His book of satire—for which he was imprisoned for a time in the Marshalsea 404 during King James I’s reign for referencing the king’s “evil counsellors,” 405 though his book had been officially licensed 406—initially appeared in 1611 as Abuses Stript, and Whipt, with his biting satirical poetry frequently reprinted 407 and even pirated thereafter. 408

The first edition of Abuses Stript, and Whipt known to have survived was published in 1613—an edition containing a reference to “cruel’st and unusual’st punishment.” 409 “[I]n 1611 came his first publication, and with unpleasant results,” editor Frank Sidgwick writes in The Poetry of George Wither (1902), adding: “No copy of Abuses Stript and Whipt with a title-page bearing the date 1611 is now known. Thomas Park, in his elaborate bibliography of Wither’s works, published in the first volume of the British Bibliographer, gives ‘Abuses Stript and Whipt, 1611,’ with a note to this effect:—‘This date is given from Dalrymple, who said in 1785,—Mr. Herbert has a copy of Abuses Stript and Whipt, wanting the title-page, with Wither’s head, 1611 . . . so that 1611 must refer to the publication and not to Wither’s age.’” Wither was just twenty-three years of age in 1611, the apparent date of the first edition of Abuses Stript, and Whipt. 410

Abuses Stript, and Whipt proved controversial but popular in its day, and it was well known enough to be part of the public discourse. The reference to “cruel’st and unusual’st punishment” that appeared in that book later showed up in Juvenilia (1622), a collection of Wither’s early verse. 411 The Cruell Brother (1627), a tragedy of the English poet and playwright Sir William Davenant, likewise contains an allusion to Wither’s book, with one twentieth-century commentator giving this description: “In this play Castruchio, ‘A satirical Courtier,’ may be recognized as not too exaggerated a caricature of the puritan poet, George Wither, whose Abuses Stript and Whipt (first published in 1611) is actually mentioned in Act II where Dorido smartly says:—You remember your Vices—strip’d, and whip’d. / Your trimme Eclogues, the Fulsome Satyr too, / Written to his Grace.” 412 The “cruel’st and unusual’st punishment” reference in Wither’s Abuses Stript, and Whipt has previously been overlooked by jurists and scholars.

The fact that a reference to “cruel’st and unusual’st punishment” appears in an early seventeenth-century satire—a book read by many in England—puts the origin story of the cruel and unusual punishments concept in a much different light. In Abuses Stript, and Whipt, Wither penned lines of verse referencing cruelty, torture, and—of particular relevance—the cruel and unusual punishment concept. For the sake of context, this is the relevant excerpt that appears in Wither’s book:

Such was his humour, who, out of desire

To see how Troy burnt when it was on fire,

Caus’d Rome in many a place at once to flame;

And longing to behold from whence he came

Ripp’d up his mother’s womb. So in the height

Was also his, that took so much delight

In seeing men extremely tortured,

That he out of his bounty promised

A large reward to him that could invent

That cruel’st and unusual’st punishment;

Which Phalaris demanding, was therefore

The first that made his brazen bull 413 to roar. 414

B. The Life of George Wither (1588-1667)

A prominent Jacobean poet and satirist, George Wither sided with Parliament during the English Civil War and became an officer in Oliver Cromwell’s army, 415 selling a family estate at the commencement of the English Civil War in order to “raise a troop of horse for the Parliament.” 416 After the country’s civil war, he became part of a group of Cromwellian poets 417 and still regularly put pen to paper after the Restoration, 418 with interest in Wither’s poetry and writings continuing after his death in 1667. 419 Oliver Cromwell (1599–1658) and, briefly, his son, Richard, led the Commonwealth of England, Scotland, and Ireland, before Richard renounced power, thus ending the Protectorate and leading to the restoration of the monarchy in 1660, with Charles I’s son, Charles II (1630-1685), assuming the throne. 420

As a “celebrated poet,” 421 George Wither was known to members of Parliament and—across the Atlantic—to colonial Americans, 422 with Wither’s Abuses Stript, and Whipt well-remembered in the 1680s. For example, Roger L’Estrange’s A Brief History of the Times (1687) refers to “George Withers” and “Abuses Stript, and Whipt.” 423 Likewise, The Temple of Wisdom—a collection authored by Daniel Leeds (1652–1720), intended for children, and printed by colonial printer William Bradford in Philadelphia in 1688, 424 just four years before Bradford was arrested and put on trial in colonial Pennsylvania for seditious libel 425—contains excerpts of George Wither’s Abuses Stript and Whipt, though not the specific passage containing the “cruel’st and unusual’st punishment” language. 426

As one twentieth-century source published in Boston notes, Wither’s Abuses Stript, and Whipt no doubt “intrigued those austere Puritans and Quakers, who took their pleasures so sadly; one can, in imagination, hear some old Puritan complain that there were still abuses to be stript and neighbors to be whipt . . . .” 427 “This book came from the press of William Bradford,” that source points out, referring to The Temple of Wisdom. 428 According to another history, “George Wither . . . may have appealed to the Quakers because of his misfortunes in prison and his loss of property, as well as for any qualities in the satire.” As that history observes: “Abuses Stript and Whipt (1613), which sent him to the Marshalsea prison, contained many things nearest the Quaker heart, e.g., the attacks on the follies and abuses of society.” 429 “Starting with the small personal libraries (consisting usually of a Bible and a few ‘Friends’ books’) brought over in the baggage of the first immigrants,” one history emphasizes, “the Philadelphia Quakers were supplied with an increasing flow of reading matter from the mother country and presently from colonial presses.” Such books included Wither’s Abuses Stript, and Whipt as well as Puritan lawyer William Prynne’s Histriomastix. 430

Before the Revolution of 1688–1689, William Penn and William Bradford had collaborated on publicizing English liberties. In 1687, William Bradford—then Pennsylvania’s only colonial printer and who had, himself, spent time training as an attorney, making him well versed in England’s common law—had been entrusted by William Penn with printing a lengthy pamphlet about those English liberties. 431 The booklet, The Excellent Priviledge of Liberty and Property: Being the Birth-right of the Free-born Subjects of England, reprinted the Magna Carta and included Sir Edward Coke’s comments on it. 432 “The Comment on Magna Charta” takes up many pages, emphasizing of the Magna Carta at the outset: “[t]his excellent Law holds the first place in our Statute Books . . . not in respect of its bulk, but in regard of the great importance and weight of the matters therein contained.” 433 “The twenty-ninth chapter, NO FREEMAN SHALL BE TAKEN, &c., deserves to be written in letters of gold,” the comment on the Magna Carta declares. 434

In an opening section, titled “To the Reader,” one finds these words in William Penn’s booklet on English liberties: “I do here present thee with that ancient Garland, the Fundamental Laws of England, bedecked with many precious privileges of Liberty and Property, by which every man that is a Subject to the Crown of England, may understand what is his right, and how to preserve it from unjust and unreasonable men.” 435 In the opening paragraphs of the “Introduction,” Penn contrasted “the Law” of England, where “each man” had “a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture,” 436 with life in “France” and “other nations” where “the mere will of the Prince is Law, his word takes off any man’s head, imposeth taxes, or seizes any man’s estate, when, how and as often as he lists; and if one be accused, or but so much as suspected of any crime, he may either presently execute him, or banish, or imprison him at pleasure . . . .” 437

Invoking Sir John Fortescue and Henry Bracton, William Penn emphasized that “[t]he King of England cannot alter nor change the laws of his realm at his pleasure.” 438 Calling Bracton “a learned Judge and Law-Author, in the Reign of King Henry the Third,” Penn quoted that treatise writer as saying, “Rex in Regno suo superiores habet Deum et Legem” (i.e., “The King in his Realm hath two superiors, God and the Law; for he is under the directive, though not coercive Power of the Law.” 439 After saying that “[t]his original happy Frame of Government is truly and properly called an Englishman’s Liberty, a Privilege not exempt from the law, but to be freed in person and estate from arbitrary violence and oppression,” Penn also invoked “Judge Coke”—a reference to Sir Edward Coke, the Chief Justice of the Common Pleas from 1606 to 1613 and the Chief Justice of the King’s Bench from 1613 to 1616. 440 “Much of Penn’s writing—to say nothing of that of the common law giant Coke on whom Penn relied—concerned the importance of preservation of English liberty, which historians have called common law constitutional thought,” one legal historian, Alfred Brophy, explains. 441

Because of his literary fame, George Wither—though deceased since 1667—was clearly still a topic of conversation in the period of England’s Revolution of 1688–1689. In 1688, in London, some of Wither’s poetry from 1652 and 1660 was reprinted as a pamphlet titled Predictions of the Overthrow of Popery, and the Landing of the Prince of Orange in the West Written by George Wither Esquire, in the Year 1660; and Some Proposals for Perpetual Parliament Written by the Same Author in 1652. 442 In addition, The Grateful Acknowledgment of a Late Trimming Regulator (1688) appeared around the same time, said to be “written in the time of the late wars by that famous and divine poet of our age, Captain George Wither.” 443 George Wither’s daughter, Elizabeth, married to Londoner Adrian Barry, also “prepared for publication in 1688 her father’s ‘Divine Poems by way of a paraphrase on the Ten Commandments;’ she wrote under the initials ‘E. B.,’ and dedicated the work to her father’s friends.” 444

The Dictionary of National Biography (1922) describes George Wither (1588–1667) as a “poet and pamphleteer” who spent two years studying at Magdalen College, Oxford, without taking a degree and who “about 1610 settled in London in order to study law.” “Almost as soon as Wither settled in London,” that biographical entry observes, “he devoted his best energies to literature, and proved himself the master not only of a lyric vein of very rare quality, but also of a satiric temper which could often express itself in finely pointed verse.” “His friends soon included the most notable writers of the day,” the entry continues, stressing that he entered one of the Inns of Court—Lincoln’s Inn—in 1615. “In 1611,” Wither’s biographical entry notes, “he first, according to his own account, took notice of ‘public crimes’ (Warning Piece to London, 1662), and gave proof of his quality as a satirist.” 445

In A History of the Wither Family (2007), it is reported of George Wither that when he was “‘thrice five years and three,’ he went to London and entered at ‘one of the Inns of Chancery,’ where for the next five years we hear very little of him.” 446 “From early on,” law professor Judith Maute explains, “the Inns of Chancery served as preparatory schools for the Inn of Court with which it was affiliated.” As Maute observes of the relationship between the Inns of Court and the Inns of Chancery: “Benchers elected by the Inn of Court provided in-house education, focusing on common law writs, at the Inn of Chancery. The greater inns tended to give preferential treatment to applicants from their affiliate chancery inn. The lesser Inns of Chancery typically consisted of a dining hall and living chambers, whereas the Inns of Court also had a library and chapel for the use of members.” 447

George Wither’s father, from Hampshire, was “a gentleman of good connexions,” and he initially had sent his son to Magdalene College, Oxford, at age fifteen, only to call him home three years later. As Wither himself later described his father’s plea in verse: “Come home, I pray, and learn to hold the plough. / For you have read philosophy enowe.” Although Wither dutifully returned home, the plough plainly did not suit him, and after writing “some pastorals,” he had gone to London to enter at one of the Inns of Chancery before finding his place at Lincoln’s Inn. 448 It was Wither’s Abuses Stript, and Whipt, however, that initially brought Wither so much notoriety, especially after he was imprisoned for words he had written in the satire that apparently offended Henry Howard, the Earl of Northampton. 449 One source suggests that “[t]he arrest and imprisonment of George Wither in March 1614” most likely occurred because “Wither had fallen foul of leading members of the Privy Council” and had “become embroiled in the scramble for office and the unsettled anticipation of the new parliament.” 450

This was a time of rapid growth in legal publishing in England and of the English legal profession itself. “The number of lawyers in Elizabethan and early Stuart England grew sharply, both in the ‘upper branch’ of the profession (the serjeants, 451 benchers, 452 and utter barristers 453 of the Inns of Court) and the ‘lower branch’ (the court officers, clerks, attorneys, and solicitors),” one historical source notes, giving these telling statistics: “Admissions to the Inns of Court rose from about 100 per year in the 1550s to about 300 per year in the 1620s. Between 1570 and 1640, the four Inns matriculated almost 16,000 students and called about 2800 barristers.” Whereas Lincoln’s Inn recorded “164 bar calls in the five decades between 1520 and 1569,” it recorded “628 calls between 1590 and 1639.” During term time, that study’s author, University of Chicago law professor Richard Ross, explains, residents of the Inns of Chancery “mingled with the ‘upper branch’ of the profession and attended the royal courts, developing a sharper sense of the legal arguments current in the capital and an exposure to popular lawbooks.” The number of attorneys practicing before the courts of King’s Bench and Common Pleas was approximately 200 in 1560, but roughly 1,050 by 1606 and 1,750 by 1640. 454

The Inns of Chancery—as one American court has explained, quoting a source on English law—“‘were designed as places for elementary studies,’ where students ‘learned the nature of original and judicial writs, which were then considered as the first principles of the law.’” 455 Of the eight Inns of Chancery, the four Inns of Court, and the two Inns of Sergeants, one English history recalled in describing London’s legal education system: “The Colledges of Municipal, or Common-Law Professors and Students, are 14, called still Inns, the old English word, for Houses of Nobleman, or Bishops, or men of extraordinary Note, and which is of the same signification with the French Word Hostel at Paris.” “The Inns of Chancery,” that source notes, “were probably so named, because there dwelt such Clerks, as did chiefly study the forming of Writs, which regularly appertain to the Curfitors, that are Officers of Chancery.” “The first of these,” that history continued, naming them, “is called Thavis Inn, begun in the Reign of Edward the Third, and since purchased by Lincolns-Inn, as was also Furnivals Inn; then there is Bernards Inn, New Inn, Clements Inn, Cliffords Inn, antiently the House of the Lord Clifford; Staple Inn, belonging to the Merchants of the Staple; and Lions Inn, antiently a common Inn, with the sign of the Lion.” 456 “In his long career,” another source notes of Wither’s diverse interests in law, music, politics, and poetry, “George Wither (1588–1667) wrote upwards of one hundred books in an extraordinary range of styles and genres: Spenserian pastorals, prose satires, amatory lyrics, emblematic poetry, instruction manuals, political diatribes, moral tracts, and hymns.” 457 “Known as ‘A Puritan Poet’ and also as a major in the English Parliamentary army,” one early twentieth-century source later succinctly—if a bit too succinctly—summarized Wither’s professional life. 458

In England and Wales, those studying the law, precedents, and legal customs organized themselves into Inns of Court—the original fourteen of which gradually coalesced into four: Lincoln’s Inn, Gray’s Inn, Inner Temple, and Middle Temple. “The Inns originally served as hostels and schools for student lawyers in the thirteenth and fourteenth centuries,” one scholar, Nadia Shamsi, explains. “The legal apprentices,” another scholar, James Hart, writes, “lived, ate, and learned the law together.” “Historically, Lincoln’s Inn has had the strongest links to the Courts of Chancery,” English Lord Justice Scott Baker points out. 459 The library at Lincoln’s Inn is first mentioned in its records in 1471. 460 “There are,” Charles William Heckethorn wrote in Lincoln’s Inn Fields and the Localities Adjacent (1896), “three ranks or degrees among the members of the Inns of Court: benchers, barristers, and students.” “The benchers are the superiors of each house, to whom the government of its affairs is committed,” Heckethorn explained, 461 noting that, in the fifteenth and sixteenth centuries, the benchers of Lincoln’s Inn excluded—and then greatly restricted—Irishmen from membership. 462

Each of England’s Inns of Courts has a storied history. “The early history of Lincoln’s Inn as a legal institution is involved in much obscurity,” Heckethorn observed, pointing out of the Inn’s history: “The man to whom it owed its rising celebrity was Sir John Fortescue (b. 1395, d. 1485), one of the benchers, and one of the fathers of English law, who held the Great Seal under Henry VI. Fortescue wrote a work entitled ‘De Laudibus Legum Angliæ,’ in which occurs the first mention of the four Inns of Court, viz., the Inner and Middle Temple, Lincoln’s Inn and Gray’s Inn.” A fifteenth-century “Black Book” of the Inn itself lists Fortescue as one of its governors. A section of Heckethorn’s book, titled “Eminent Students, Members, and Residents,” lists Sir Thomas More as connected with Lincoln’s Inn and identifies as “[o]ther eminent members” Puritan lawyer William Prynne; poet George Wither; Sir Matthew Hale, “who contributed a large collection of MSS. to the library of this society—‘a treasure,’ he says in his will, ‘not fit for every man’s view”; Lord Shaftesbury; Lord Mansfield; William Pitt; William Penn; John Rushworth, “in 1640 appointed assistant clerk at the House of Commons”; and Sir John Denham, “the poet who, in a drunken frolic, blotted out all the signs between Temple Bar and Charing Cross.” 463

A. English History and Prerogative Courts

England has a complex constitutional history, of which the Magna Carta, the Petition of Right, and the English Bill of Rights are major slices. The Petition of Right (1628)—part of a storied English tradition of Parliament petitioning the monarch 464 that included the Millenary Petition of 1603 465 and King James I’s 1622 proclamation granting “the Right of his subjects to make their immediate Addresses to him by Petition” 466—has been described as “the first significant modification of the royal prerogative.” 467 “[I]t was James’s refusal to grant leeway to Puritan preachers that set off a migration of frustrated preachers to New England, which did not stop until 1640,” one source recalls. “As early as 1610,” that source adds, “Parliament was protesting the suppression of speech” and Parliament’s Root and Branch Petition of 1640—concerning itself with the dissemination of religious books and the freedom of ministers to preach 468—contained this grievance: “The restraint of many godly and able men from the ministry, and thrusting out of many congregations their faithful, diligent and powerful ministers, who lived peaceably with them, and did them good, only because they cannot in conscience submit to and maintain the bishops’ needless devices; nay, sometimes for no other cause but for their zeal in preaching or great auditories.” 469

The Petition of Right reflected a loss of confidence in the monarchy. 470 As the U.S. Supreme Court once put it, the Petition of Right “drew upon centuries of tradition and Magna Carta as a model for the Parliament to issue a plea, or even a demand, that the Crown refrain from certain actions.” As the Supreme Court emphasized of the petition presented by Parliament in the reign of King Charles I following a series of disputes: “The Petition of Right stated four principal grievances: taxation without consent of Parliament; arbitrary imprisonment; quartering or billeting of soldiers; and the imposition of martial law.” 471 But the Petition of Right did not effectively rein in, let alone put a stop to, Stuart abuses, with Charles I—in the wake of the Petition of Right—choosing to disrespect and disregard his subjects and to rule without the aid of Parliament, leading to what has been called the period of “Personal Rule” and to further abuses of power. 472

B. The Punishment of Puritans Alexander Leighton, William Prynne, Henry Burton and John Bastwick

Complaints about cruelty and excessive bail and fines were commonplace in 1630s England. “The problem of excessive bail grew, along with the problem of excessive fines, particularly in the 1630s during Charles I’s reign as religious and political dissidents were repressed,” Wendell Bird explains in Religious Speech and the Quest for Freedoms in the Anglo-American World (2023). “Examples,” Bird notes, “include John Lilburne, Dr. John Bastwick, William Prynne, and Rev. Henry Burton,” whose “perpetual imprisonments and enormous fines” drew attention. An “excessive fine,” Blackstone pointed out, “amounts to imprisonment for life.” It was “Leveller leaders” who “decried those injustices,” Bird writes, adding that “[a]ll of them personally experienced imprisonment without bail for treason . . . .” Referencing Richard Overton’s writings, Bird further observes: “Earlier, Overton condemned the ‘most unreasonable fines upon [Puritans], as of 2000.l. or the like,’ and later, Lilburne complained of his ‘unheard-of fine as 7000l.’ They and other Levellers insisted that reasonable bail should be allowed for all but the serious nonbailable offenses and that reasonable amounts should be set for fines.” 473

In the tumultuous 1630s, Puritans and pamphleteers—as well as Irishmen who faced consequences and judgments of their own in Dublin, Ireland’s Court of Castle Chamber—risked or endured arbitrary punishments and physical mutilation of the kind that befell Dr. Alexander Leighton (1570-1649), a Scottish medical doctor and Puritan preacher, and William Prynne (1600-1669), an English lawyer and author. “The case against Dr. Alexander Leighton in 1630 provides an apt illustration,” one legal historian notes, pointing out that, in 1629, Leighton had published An Appeal to Parliament, or Sion’s Plea Against the Prelacie vilifying Anglican bishops and one of them, William Laud, 474 in particular. As that legal historian, Daniel Vande Zande, explains: “Leighton’s punishment was severe, even for its day.” When Dr. Leighton “addressed the Long Parliament years later,” Vande Zande stresses, its members “were moved to tears when hearing of the barbaric nature of his punishment.” The Star Chamber had sentenced him to pay a fine of £10,000 and to serve a life sentence; he was taken to the pillory at Westminster and whipped; and he had one side of his nose slit, one ear cut off, and the mark “SS” branded on his cheeks to signify “Sower of Sedition.” Several days thereafter he had been taken to the pillory at Cheapside where he was whipped again, then had the other side of his nose slit and his other ear cut off. 475

William Prynne, the English lawyer, was also a fierce opponent of William Laud’s mandated and highly ritualistic religious practices. As Duke University historian William Thomas Laprade writes of Prynne’s first stint in the pillory: “Prynne, whose extravagant pamphlet, Histriomastix, contained the extreme Puritan views of the stage, was brought before the Court of Star Chamber on a charge of insulting the Queen. The court imposed a fine of five thousand pounds, sent him to the pillory, and ordered his ears cropped.” 476 Histriomastix (1632), a blistering critique of English Renaissance theater, masques, balls, dancing, and the decking of houses with evergreens at Christmas, was viewed as a scurrilous attack on King Charles I’s Catholic wife, Queen Henrietta Maria, a drama lover and patron who had herself performed in a pastoral, with Prynne’s more than 1,000-page book denouncing stage actresses as “notorious whores.” 477

The Star Chamber garnered a notorious reputation in England. “It was a cruel age,” Thomas Barnes, a Professor of History and Law at the University of California at Berkeley wrote in an introduction to William Hudson’s A Treatise of the Star Chamber—a treatise written in 1621 but not published until 1792. “Emphatically, Star Chamber did not use torture, as had been laid at its door,” Barnes observed, explaining of how English law and criminal procedure differed from the law of continental European countries that systematically made use of judicial torture as part of their criminal justice systems: “Torture was occasionally used in England, though it was not a matter of course as in Continental criminal procedure where it was aimed at eliciting a confession amounting to moral certainty that the accused had committed the crime.” “In England,” Barnes stressed, “torture was an extra-judicial procedure inflicted by warrant of the Privy Council only to discover the names of suspected accomplices; the evidence obtained could not be used against the defendant tortured.” “Torture, though contrary to the law of England,” another history observes of how that practice ran afoul of England’s common law tradition but was nonetheless employed by English kings and queens to gather information, “was frequently employed during the Middle Ages by the exercise of the prerogative of the Crown, more especially for the purpose of manufacturing evidence, and extorting confessions.” 478

The critique of the Court of Star Chamber when it was abolished in 1641: its judges had “undertaken to punish where no Law doth warrant and to make Decrees for things having no such authoritie and to inflict heavier punishments then by any Law is warranted.” Such decrees had “by experience beene found to be an intollerable burthen to the subjects and the meanes to introduce an Arbitrary Power and Government.” “The abrupt legislative destruction of the Court of Star Chamber in the summer of 1641,” Nathaniel Earle writes in his Clemson University graduate thesis focused on the court’s history from 1625 to 1641, “is generally understood as a reaction against the perceived abuses of prerogative government during the decade of Charles I’s personal rule.” “The conception of Star Chamber as an ‘extra-legal’ tribunal (or, alternatively, as a legitimate court that had exceeded its jurisdictional mandate),” Earle explains, “emerged from the constitutional debate about the limits of executive authority that played out over the course of the seventeenth century in Parliament, in the press, in the pulpit, in the courts, and on the battlefield.” For instance, after Dr. Alexander Leighton—the Scottish physician and Puritan preacher and pamphleteer—had called for the abolition of episcopacy in An Appeal to the Parliament: or, Sions Plea Against the Prelacie, he was charged “with framing, publishing, and dispersing a scandalous book against King, Peers, and Prelates” and thrown into Newgate prison to await his fate in the Star Chamber. 479

By today’s standards, the punishments ordered by the Court of Star Chamber were clearly torturous in nature. For example, in the 1630s, on the Star Chamber’s orders, Dr. Alexander Leighton and other gentlemen—most notably, William Prynne, John Bastwick, and Henry Burton—were accused by information of seditious libel, ignominiously sentenced to be whipped, and then had their ears nailed to the pillory and cut off. 480 The administration of their punishments—carried out in public to shame, mutilate, and forever maim them—has been recounted by historian Robert Ross 481 and legal historian Daniel Vande Zande. 482 In that era, subjecting someone to the pillory was a relatively common punishment meted out by the Star Chamber, as records of its judgments make clear. 483

Reverend George Gerrard—present for the infliction of such punishments in 1637 upon William Prynne, John Bastwick, and Henry Burton—reported of what he saw that day, giving this report: “In the palace-yard two pillories were erected, and there the sentence of the Star Chamber against Burton, Bastwick, and Prynne was executed. They stood two hours in the pillory.” “The place was full of people, who cried and howled terribly, especially when Burton was cropped,” Gerrard observed, adding: “Dr. Bastwick was very merry; his wife, Dr. Poe’s daughter, got on a stool and kissed him. His ears being cut off, she called for them, put them in a clean handkerchief, and carried them away with her.” 484 Prynne himself was branded with the letters “S.L.” (for “seditious libeler”) on both cheeks, 485 though in a reference to his nemesis, Archbishop William Laud, he reportedly “preferred to think of it as ‘stigmata Laudis.’” 486 In the end, the barbarous punishments engendered much sympathy for Prynne, Burton and Bastwick and vehement opposition to the Star Chamber’s abuses. 487

The Court of Star Chamber had its own unique criminal procedures that differed from those of common-law courts—and there was an intimidation factor, too. “The Star Chamber,” one prominent legal historian, Donald Dripps, notes, “did not permit the accusation to be answered without the signatures of two attorneys, which were not to be had because the answers drafted by the defendants might, if endorsed by counsel, expose counsel to prosecution.” Such procedures had dire consequences for many people and engendered much cruelty. “Stripped of the most contrarian matters,” Dripps writes, “the plea in defense was so sparse that the court judged the defendants guilty by confession.” 488 The punishments inflicted on Prynne, Bastwick, and Burton—prominent members of the professions of law, medicine, and theology—were described in A History of the Criminal Law of England (1883), with an extended excerpt later reprinted in the U.S. Supreme Court’s Faretta v. California (1975) decision. 489

The punishments meted out by the Star Chamber shaped public sentiment in England—and, many decades later as they were remembered through the lens of history, in the newly formed United States of America as part of the American Revolution. Although it is impossible to get into the minds of America’s founders or the framers of early American state constitutions and the U.S. Constitution, they had studied English history and knew about the Star Chamber, if only through written sources. That knowledge would have materially shaped their understandings of the Eighth Amendment’s text to the extent Americans had Stuart abuses in mind (as they almost certainly did) during the late eighteenth century—a period when America’s leading thinkers were also reading Enlightenment texts. 490 In or about December 1769, Thomas Pownall attempted to formulate general principles of law applicable to the issues in dispute between Britain and her colonies. One of the corollaries he deduced from them: “[T]hat the rights of the subject as declared in the Petition of Right, the act abolishing Star Chamber, the Habeas Corpus Act, the Bill of Rights, etc., extend to the colonists of common right.” 491 Likewise, in a letter to James Madison dated June 21, 1784, John Blair Smith wrote of “Star-chamber tyranny.” 492

Even centuries later, the Star Chamber remained an infamous court. For example, in Negrich v. Hohn (1965), a federal district court in Pennsylvania stated that the Eighth Amendment prohibition on cruel and unusual punishments “was directed against the English experiences that loomed large in the minds of the framers of our government, such as branding, mutilation, and cutting off the ears in Star Chamber.” Citing the U.S. Supreme Court’s rulings in Wilkerson v. Utah (1879) and Weems v. United States (1910), that federal district court emphasized of the American take-away from all that recalled cruelty as the Eighth Amendment was debated and ratified: “Disembowelment, being drawn and quartered, and all the gory incidents of the punishment for treason in England were banned. Torture, boiling in oil, and other unnecessary forms of cruelty are forbidden.” 493

C. The Oath Ex Officio and John Lilburne

Many suffered at the hands of England’s prerogative courts. John Lilburne (1615–1657), known as “Freeborn John” in London, was just one of many in the seventeenth century who were imprisoned and subjected to highly coercive practices because of his beliefs. 494 An apprentice to a cloth merchant in London and a Church of England critic, Lilburne—a Puritan “thwarted from studying law at the Inner Temple” 495 who later led the Leveller movement 496—became politically engaged and a disciple of the “Puritan martyrs” William Prynne, John Bastwick, and Henry Burton. In 1637, Lilburne was first hauled before the Court of Star Chamber on a charge of importing seditious books from Holland. Scholar John Rees, in an anthology titled John Lilburne and the Levellers: Reappraising the Roots of English Radicalism 400 Years On (2018), notes that “it was an attempt to smuggle copies of John Bastwick’s Letany into England from a press in the Netherlands that led to Lilburne’s first arrest.” 497 In the 1640s, English Levellers—seeking protection of legal rights and more equality—proposed the adoption of An Agreement of the People to constrain governmental power. 498

For refusing to answer the Star Chamber’s questions, John Lilburne—recognized by constitutional scholars and American jurists as a driving force behind the recognition of the privilege against self-incrimination 499—paid a hefty price. 500 Along with another publisher, Lilburne was sentenced to pay a fine, to be whipped through the streets and pilloried, 501 and to be imprisoned until conforming to the Star Chamber’s procedure and taking the oath. As Rees explains of Lilburne and his stoicism in the face of horrendous abuse: “When he was punished by being tied to the back of a cart and dragged from the Fleet prison to Westminster Yard, beaten 500 times with a three-pronged, knotted leather whip on the way, he remained defiant, even when he was put in the stocks at the end of the ordeal. He was still throwing copies of Bastwick’s pamphlet from his coat and making speeches until his goalers gagged him.” 502

The Star Chamber oversaw the licensing of prospective publications, but Lilburne—insisting on a privilege against self-incrimination—refused to take the oath ex officio and answer interrogatories under oath. 503 “The procedure used in the Court of Star Chamber was a compound of Continental and common law,” one scholar writes in the Harvard Law Review, emphasizing that “[e]lements of the former may be seen in the examination of witnesses and the accused in secret, in the ex officio oath administered to the accused, and in the very large influence of the written depositions at the trial.” 504 Lilburne later complained that he was treated in “a most cruel manner” after the Star Chamber ordered that he “should be laid alone, with irons on his hands and legs,” day and night, in the worst area of a prison ship and his friends were denied access. 505 Following Lilburne’s petitions to Parliament, 506 Parliament ordered Lilburne’s release in November 1640 and remitted his fine. 507 Half a year later, one history notes, “the House of Commons passed a resolution that the Star Chamber sentence was ‘bloody, wicked, cruel, barbarous & tyrannicall” and “illegal, and against the Liberty of the subject.’” 508

That English history grounds the U.S. Constitution’s Fifth Amendment’s privilege against self-incrimination—as well as other legal rights—is clear. 509 “Although no records exist that shed light on James Madison’s reasoning when he drafted the language that eventually became the Fifth Amendment self-incrimination clause,” one scholar has written, “the doctrine of Nemo tenetur 510 and its abhorrence of the government use of torture and coercive interrogation techniques drove the self-incrimination clause’s ultimate inclusion in the Bill of Rights.” 511 Many Englishmen, sympathizing with Lilburne’s plight and deploring inquisitorial procedures, rightfully detested the Star Chamber’s coercive tactics, with Lilburne claiming various rights that later appeared in the U.S. Bill of Rights. 512 At trial and even while in the pillory, Lilburne railed against the Star Chamber’s attempt to coerce his testimony. After his arrest, imprisonment, and refusal to take the Court’s inquisitorial oath ex officio, Lilburne protested: “I am not willing to answer you to any more of these questions, because I see you go about by this examination to ensnare me . . . .” 513

In fact, John Lilburne called the inquisitorial oath ex officio “an oath against the law of the land.” “[I]t is,” he said, “absolutely against the law of God, for that law requires no man to accuse himself.” On the Westminster pillory, Lilburne cried out: “no man’s conscience ought to be racked by oaths imposed to answer to questions concerning himself in matters criminal, or pretended to be so.” 514 “Stripped to his waist,” one source recalls of his painful journey to the pillory, “Lilburne absorbed as many as five hundred lashes from a three-thonged, corded whip while an admiring crowd cheered him on.” “Although he nearly passed out before being locked in the pillory,” that source reports, “[h]e nonetheless bowed toward the Star Chamber, bent down into the pillory, and gave a stem-winding speech defending his conduct.” 515 John Lilburne’s part in the history of privilege against self-incrimination has been recounted extensively elsewhere. 516 Other legal historians have likewise noted Lilburne’s role in the demise of the Star Chamber 517 and in solidifying the law’s privilege against self-incrimination. 518

The oath ex officio, as once used in England, required “a sworn statement by the defendant promising to give honest answers to all questions asked of him.” 519 When a defendant refused to take the oath, the court could coerce the accused into taking it “by threatening contempt of court, conviction, or even torture.” 520 “Out of these egregious actions by authorities,” one legal commentator writes, “came the ‘cruel trilemma’ of ‘self-incrimination, perjury, or contempt.’” 521 Lilburne took a principled stand in the face of the oath ex officio, and his refusal to take the oath inspired Parliament to abolish both the Star Chamber and the High Commission. 522 Only in time did Lilburne’s risky, potentially life-threatening protest bear fruit with the law’s development of the privilege against self-incrimination 523—but not before he suffered mightily, paying with his own flesh and blood, due to the Star Chamber’s severe treatment of him. 524

Imprisoned for two years and fined, whipped, and placed in a pillory after refusing to take the oath three times, Lilburne paid a heavy—though not the ultimate—price for his refusal to cooperate, 525 as the Star Chamber had no authority to impose a death sentence. 526 An ardent Puritan, Lilburne—lashed but still alive—petitioned for his release after the so-called “Long Parliament” convened in 1640. 527 Itself composed principally of Puritans, the Long Parliament obliged, with both houses finding that the Star Chamber had unlawfully sentenced him. 528 The House of Commons labelled Lilburne’s sentence “illegal and against the liberty of the subject,” and the House of Lords concurred. 529 While most of the agitation about the oath ex officio had initially been directed at ecclesiastical courts, after Lilburne’s case the privilege began to be regularly asserted in common law trials that no person was bound to incriminate himself on any charge or in any court. 530 “Lilburne emerged from prison to play a leading role in the street protests that resulted in Charles I’s decision to flee his capital in 1642,” John Rees wrote of the outset of the English Civil War, with legal commentators crediting Lilburne for the rise of the privilege against self-incrimination. 531

D. The Grand Remonstrance (1641)

The Grand Remonstrance listed exponentially more grievances than the Petition of Right—and in much greater detail. 532 Among other things, the Grand Remonstrance—voted on one paragraph at a time by members of Parliament led by MP John Pym, 533 who had given a rousing speech in the House of Commons in 1640 about the constitutional necessity of frequent sessions of Parliament for providing the king’s subjects with an opportunity to present their petitions 534—complained that Charles I had disregarded the Petition of Right by unjustly imprisoning people. “The Petition of Right . . . was granted in full Parliament,” paragraph 11 of the Grand Remonstrance pointed out, adding that the Petition of Right had been “made of no use but to show the bold and presumptuous injustice of such ministers as durst break the laws and suppress the liberties of the kingdom, after they had been so solemnly and evidently declared.” 535

The Grand Remonstrance’s next grievance, in paragraph 12, wrote of the dissolution of “[a]nother Parliament,” and how “the privilege of Parliament” had been “broken” by the imprisonment of “members of the House, detaining them close prisoners for many months together, without the liberty of using books, pen, ink or paper; denying them all the comforts of life, all means of preservation of health, not permitting their wives to come unto them even in the time of their sickness.” “And for the completing of that cruelty,” paragraph 13 of the Grand Remonstrance lamented, “after years spent in such miserable durance, depriving them of the necessary means of spiritual consolation, not suffering them to go abroad to enjoy God’s ordinances in God’s House, or God’s ministers to come to them to minister comfort to them in their private chambers.” “And,” paragraph 14 read, “to keep them still in this oppressed condition, not admitting them to be bailed according to law, yet vexing them with informations in inferior courts, sentencing and fining some of them for matters done in Parliament; and extorting the payment of those fines from them, enforcing others to put in security of good behavior before they could be released.” 536

One grievance at a time, the Grand Remonstrance methodically laid out the case against Charles I’s absolute rule. “The imprisonment of the rest, which refused to be bound, still continued, which might have been perpetual if necessity had not the last year brought another Parliament to relieve them, of whom one died by the cruelty and harshness of his imprisonment,” paragraph 15 asserted, adding that the death had occurred “notwithstanding the imminent danger of his life did sufficiently appear by the declaration of his physician, and his release, or at least his refreshment, was sought by many humble petitions.” The man’s “blood,” paragraph 15 stressed, “still cries either for vengeance or repentance of those Ministers of State, who have at once obstructed the course both of His Majesty’s justice and mercy.” 537 It was Sir John Eliot, an MP for the county of Cornwall, who was imprisoned for his conduct in Parliament and died of “consumption” in 1632 in the Tower of London—the castle on the north bank of the River Thames in central London. 538

Along with complaints about unjust imprisonment, harassment and vexation, breach of parliamentary privilege, and denial of bail or unjust bail amounts, the Grand Remonstrance made excessive fines a major focus almost fifty years before Parliament’s adoption of the English Bill of Rights. Paragraph 17 of the Grand Remonstrance complained about “the great sums exacted through the whole kingdom for default of knighthood” that were seen by the House of Commons “to be against all the rules of justice, both in respect of the persons charged, the proportion of the fines demanded, and the absurd and unreasonable manner of their proceedings.” Likewise, paragraph 34 of the Grand Remonstrance, in response to the king’s various monetary extractions, protested: “Great numbers of His Majesty’s subjects for refusing those unlawful charges, have been vexed with long and expensive suits, some fined and censured, others committed to long and hard imprisonments and confinements, to the loss of health in many, of life in some, and others have had their houses broken up, their goods seized, some have been restrained from their lawful callings.” 539

Whereas paragraph 44 of the Grand Remonstrance complained about “excessive fines,” paragraph 37 emphasized: “The Court of Star Chamber hath abounded in extravagant censures, not only for the maintenance and improvement of monopolies and other unlawful taxes, but for divers other cause where there hath been no offence, or very small, whereby His Majesty’s subjects have been oppressed by grievous fines, imprisonments, stigmatisings, mutilations, whippings, pillories, gags, confinements, banishments . . . .” Paragraph 159 of the Grand Remonstrance also referred to “great fines” imposed by the prerogative Court of Star Chamber, while the next grievance—in paragraph 160—said this about another royal prerogative court, the ecclesiastical High Commission: “The fines of the High Commissioner were in themselves unjust . . . .” 540

Prior to the Grand Remonstrance, King Charles I had ruled without Parliament for more than ten years, angering his subjects. 541 In 1640, following intense religious discord 542 between the Church of England and Puritans and Scots, 543 Scottish forces invaded England, compelling Charles I to call Parliament into session to raise needed revenue. 544 “On 3 April 1640,” one account summarizes, “Parliament met and immediately made known that it considered the ‘Scottish invasion . . . less important than the invasion of English liberties in the name of Prerogative.’” 545 As that account emphasizes: “Parliament saw the Scottish war and Charles’ need for money as an opportunity to rectify grievances building during the past eleven years of extra-parliamentary rule.” 546

In a speech to the House of Commons on April 17, 1640, in what became known as the “Short Parliament,” John Pym, the House’s leader, outlined Parliament’s long list of grievances. 547 Among them: “Extrajudicial Judgments and Impositions of the Judges without any cause before them, whereby they have anticipated the judgment which is legal and publik and circumvented one of the parties of just remedies, in that no writ of Error lyes, but only upon the Judicial proceedings.” 548 After Charles I dissolved that Parliament only three weeks after it convened, 549 his effort to fight Scotland without parliamentary sources of revenue “proved disastrous” and “Charles had no choice but to call Parliament again,” resulting in the convening of what became known as the “Long Parliament.” 550 “The Long Parliament,” as one source notes, “was convened in November 1640, under the leadership of John Pym.” “The purpose of Parliament in those days,” that source observes, “was advisory, summoned on an ad hoc basis principally to raise funds, which Charles I needed to fund various wars.” 551

During its first session (1640–1641), the Long Parliament—now acting with purpose and leverage over the king—took many actions. It impeached the king’s most trusted advisor, Thomas Wentworth, and he was put to death; 552 enacted the Triennial Act, requiring that Parliament be summoned at least once every three years and restricting the king’s authority to prorogue or dissolve Parliament without the consent of both houses; prohibited certain prerogative powers to raise revenue without the consent of Parliament; and abolished the Court of Star Chamber and the Court of High Commission for Ecclesiastical Causes—prerogative courts known for their many abuses, including horrific corporal punishments and the dreaded and inquisitorial oath ex officio. 553

The individual Star Chamber cases drew considerable public attention, and those cases fueled the drive to abolish the prerogative courts. In 1639, the Court of Star Chamber had examined John Lilburne, an opponent of absolute Stuart rule whose last name was also spelled Lilburn but who was popularly known as “Freeborn John.” It had done so on a charge of printing or importing heretical and seditious books, with Lilburne refusing to answer questions “concerning other men, to [e]nsnare me, and to get further matter against me.” The Star Chamber had then ordered that he be whipped and pilloried for refusing to take the oath ex officio. “The whip that lashed ‘Freeborn John’ smashed the Court of the Star Chamber as well,” a California Supreme Court justice once succinctly emphasized of the relevant English history, pointing out how England’s Parliament voted to abolish the Court of Star Chamber and the Court of High Commission for Ecclesiastical Causes in mid-1641. 554

John Pym, a leader of Parliament, is said to have “literally risked his life to defend the powers of Parliament and guard against the dangerous enlargement of the King’s power.” 555 With Pym at the apex of his power in the House of Commons, Parliament had a stern reaction to what it viewed as tyrannical and arbitrary rule, though Archbishop Laud—one subject of Parliament’s ire—lived a little longer than the Earl of Strafford. In the seventeenth century, the use of impeachments by Parliament came back into vogue—and like the Earl of Strafford, Archbishop Laud became a target. “In Great Britain,” University of Missouri law professor Frank Bowman writes, “impeachment reemerged from its long dormancy during the reigns of the Stuart kings—King James I (1603-1625), his son Charles I (1625-1649), and his grandson Charles II (1649-1651, 1660-1685).” 556 The end result of many impeachments, sometimes converted into bills of attainder to avoid the need to actually prove the charges: death, imprisonment or a hefty fine. 557

The mechanism of impeachment had first emerged in England during the Parliament of 1376 when it was put to use as a means of initiating criminal proceedings. Although a set of impeachment procedures had been established by 1399 during Henry IV’s reign, impeachment fell out of use after the mid-fifteenth century, only to be revived and used repeatedly by Parliament in the seventeenth century to an effort to rein in the king’s power. “From 1621 to 1679, Parliament wielded impeachment against numerous high level ministers to the Crown,” one legal commentator writes, noting that those facing impeachment proceedings included the 1st Duke of Buckingham, the Earl of Strafford, Archbishop William Laud, the Earl of Clarendon, and Thomas Osborne, Earl of Danby. 558 “It was Pym also who carried up to the Lords the articles of impeachment against archbishop Laud, a mischievous and cruel prelate,” one mid-nineteenth-century account observes, noting that Pym died before Archbishop Laud was brought to trial. 559 Ultimately, both the Earl of Strafford and Archbishop Laud got beheaded; Strafford in 1641 and Laud in 1645. 560

After Parliament, in the Earl of Strafford’s case, had resorted to the expedient of a bill of attainder, the king—Charles I—had at first refused to give his assent. When informed of the royal assent later given to that bill, which sealed the earl’s fate, a dejected Thomas Wentworth exclaimed in words drawn from scripture: “Put not your trust in princes, nor in the sons of men!” “In three days he was brought to block, passing to which he stopped under the window of Laud’s prison to receive his blessing,” one history notes, recording of what transpired thereafter: “The prelate raised his hand to pronounce it; but grief choked his utterance, and he fell senseless on the floor. Strafford acted on the scaffold with great dignity and composure. His execution took place in the presence of a vast multitude, who subsequently expressed their joy by illuminations and bonfires (May 12th, 1641).” 561

Before his own execution took place on January 10, 1645, at age seventy-one, Archbishop William Laud was accused by the House of Commons of having “Trayterously endeavored to subvert the Fundamental Laws and Government of the Kingdom,” having “traitorously endeavored to alter and subvert God’s true Religion by Law established in this Realm,” and—similar to Thomas Wentworth, the Earl of Strafford—with introducing “an Arbitrary and Tyrannical Government against Law.” The House of Commons also accused him of setting up “Popish Superstition and Idolatry” and “to that end hath declared and maintained in Speeches and Printed Books divers Popish Doctrines and Opinions, contrary to the Articles of Religion established by Law.” “He hath,” the charges stated, “urged and injoyned divers Popish and Superstitious Ceremonies, without any warrant of Law, and hath cruelly persecuted those who have opposed the same, by Corporal Punishment and Imprisonment; and most unjustly vexed others who refused to conform thereto, by Ecclesiastical Censures of Excommunication, Suspension, Deprivation, and Degradation; contrary to the Law of the Kingdom.” Laud denied the allegations, stating: “I never endeavored to alter or subvert God’s true Religion established by Law in this Kingdom; or to bring in Romish Superstition.” “[A]ll that laboured for . . . was, that the external Worship of God in this Church, might be kept up in Uniformity and Decency, and in some Beauty of Holiness.” “And for the Censures which I put upon any,” Laud contended, “I presume they will to all indifferent Men, which will Understandably and Patiently hear the Cause, appear to be just, Moderate, and according to Law.”

In a later printed defense of his conduct as regards the Court of Star Chamber’s June 1637 censure and punishment of Henry Burton, John Bastwick, and William Prynne “for notorious Libels, Printed, and Published by them against the Hierarchy of the Church,” Laud wrote: “Among, and above the rest, there were three Men, Mr. Henry Burton, a Minister Benificed in Friday-street in London, Dr. John Bastwick, a Phisician, and Mr. William Pryn, a Common Lawyer, who were censured Junii 14. 1637. in the Star-Chamber, for notorious Libels, Printed, and Published by them against the Hierarchy of the Church.” In attempting to explain himself, Laud further observed: “They were then and there Sentenced to stand in the Pillory, and lose their Ears; and because they should not stay farther to infect London, they were sent away by Order of that Court; Mr. Burton to Garnsey, Dr. Bastwick to Silly, and Mr. Pryn to Jersy.” “In the giving of this Sentence,” Laud offered, “I spake my Conscience; and was after commanded to Print my Speech.” “But,” Laud added, “I gave no Vote; because they had fallen so personally upon me, that I doubted many Men might think Spleen, and not Justice, led me to it. Nor was it my Counsel that advised their sending into those remote Parts.” “This Censure being past upon these Men,” Laud complained that he nonetheless had “Libel upon Libel, scattered in the Streets,” hurled against him.

In attempting to justify the men’s corporal punishments, Laud—accused of orchestrating the cruel treatment at the hands of the Star Chamber 562—stressed: “And most certain it is, that howsoever the Times went then, or go now, yet in Queen Elizabeth’s Time,” men were “Hanged,” “Condemned,” and “Dyed in Prison” for “less than is contained in Mr. Burton’s Book; as will be evident to any Man that compares their Writings together.” Noting how Burton, Bastwick and Prynne had been “set at Liberty by the House of Commons, and brought into London in great Triumph,” and how he (Laud) had, in his view, been subjected to “all manner of Scurrility, and more Untruth, both against my Person, and my Calling” (with the “spreading of Libellous, Base Pamphlets,” said to be continuing “to this Day without controul”), Laud contended of his Puritan foes who the Star Chamber had previously ordered to lose their ears and stand in the pillory for libels: “these Saints would have lost their Lives, had they done that against any other State Christian.” 563

As the Archbishop of Canterbury, William Laud was subordinate only to King Charles I in the Church of England’s hierarchy. Laud shared the Earl of Strafford’s unpopular brand of authoritarianism, and he—like the Earl of Strafford—had regularly made use of cruel practices in an effort to get his way. Before Parliament abolished the Courts of Star Chamber and High Commission in 1641, Laud—most infamously—had made use of royal prerogative power to prosecute and punish Willian Prynne, John Bastwick, and Henry Burton for libeling the Church of England’s bishops. 564 “Friday last,” London writer Edward Rossingham wrote of the horrific series of punishments inflicted on June 30, 1637, “Dr. Bastwick, Mr. Burton, and Mr. Prynne stood in the pillory in the palace of Westminster.” As Rossingham’s account recorded, noting the compassion and openly expressed public support for the punished men in the face of Archbishop Laud’s wicked determination to make examples of religious dissenters: “As Dr. Bastwick came from the gate-house towards the palace the light common people strewed herbs and flowers before him, Prynne and he stood upon one scaffold and Mr. Burton upon another by himself. They all three talked to the people.” “After two hours,” that account notes, “the hangman began to cut off their ears.” 565

The infliction of these corporal punishments—the result of the Star Chamber’s June 14, 1637, joint prosecution of Bastwick, Burton, and Prynne—proved to be highly consequential and a seminal event in English history that would be studied for centuries to come, including by Americans who familiarized themselves with the history. 566 “Reactions,” historian David Cressy explains in Travesties and Transgressions in Tudor and Stuart England (2000), “reflected England’s culture and religious divisions.” For “[a] few high conformists,” the punishments were “too light, and wished ‘the pillory had been changed into a gallows.” While one referred dismissively to Bastwick, Burton and Prynne as “the cropped libellers,” some “likened the martyrdom to ‘a glorious wedding day’” and “[m]ore moderate men thought the censure ‘too sharp, too base and ignominious for gentlemen of their ingenuous vocation’.” 567 Subjecting English gentlemen to such treatment was seen by many people as particularly offensive, 568 though not everyone in prior centuries agreed with that assessment. 569

In the seventeenth century, issues of class played a central role in the way in which the punishments of William Prynne (a lawyer), Henry Burton (a clergyman), and John Bastwick (a physician) were perceived. 570 “The resentment which the Star Chamber sentences on Prynne, Burton, and Bastwick aroused,” historian Christopher Hill points out, “sprang not so much from their savagery as because this savagery was employed against gentlemen, members of the three learned professions.” “Any Justice of the Peace,” Hill notes, “daily imposed sentences of flogging and branding on the lower orders, and tried to get confessions from them by means which he abhorred when used by the prerogative courts against his own class.” Of the common law tradition, Hill emphasizes: “The common law was the law of free men. ‘He that hath no property in his goods,’ said a member of Parliament in 1624, ‘is not free.’” “The gentry were exempted from the servile punishment of flogging,” Hill notes of their customary exemption from such severe and humiliating corporal punishments. “No goods: to be whipped,” Hill stresses by way of contrast of the judgment often imposed upon poor defendants, “was a frequent decision by Justices of the Peace in quarter sessions. 571

The historian George Macauley Trevelyan gave a very similar explanation of what so upset seventeenth-century English society. As Trevelyan wrote in England under the Stuarts:

Prynne a lawyer, Burton a clergyman, and Bastwick a doctor, had composed and secretly put into circulation violent attacks on the bishops. They were condemned by the Star Chamber to be pilloried, to lose their ears, and to suffer solitary confinement for life. The cruel mangling and branding, which idle crowds watched with cheerful interest when inflicted on cheating tradesmen or sturdy beggars, were on this occasion resented as an indecent outrage on the three liberal professions to which the victims belonged. . . . When the hangman sawed off Prynne’s ears a yell arose to which Charles should have listened at Whitehall . . . The State, too . . . met its Prynne in the more attractive personality of John Lilburne. . . . Six months after Prynne’s sentence, he refused, as a prisoner before the Star Chamber, to take the oath to answer all questions put to him by the court. For this offense, though he was a gentleman born, Lilburn[e] was whipped at the cart’s tail from the Fleet to Palace Yard, pilloried, gagged, and deliberately starved almost to death in prison. Again, men observed with indignation that classes hitherto exempt from corporal punishment were being degraded by a jealous absolutism. 572

E. The Ulster Remonstrances (1642)

The British and the Irish have long had a fraught and contentious relationship—one that has, on multiple occasions, descended into violence and brutality. British settlements and English confiscations of land in Ireland during the Tudor and Stuart reigns led to bitter disputes and, ultimately, to an Irish rising in 1641. 573 The Tudor kings had expelled Irish natives from their freeholds, and in the reign of Elizabeth I—the last monarch of the House of Tudor—there was overt discrimination against Irish-Catholics and “renewed efforts were made to extirpate the native populations, from the four large counties of Munster included in the Desmond forfeitures, and to plant those counties with English tenants.” 574 “The Tudor effort to Anglicize Ireland was intensified during the long reign of Elizabeth I,” one history notes, adding that “efforts were made to transform Ireland in religion, culture, and politics.” 575 As yet another source observes: “Elizabeth, in an attempt to force the Irish to convert, instituted recusant fees, which were fines, for those not attending Sunday service at the Church of Ireland. These fees were not well received by Irish Catholics.” 576

In the Stuart dynasty, the oppression of the Irish continued. During James I’s reign, one history recounts, “a more methodical system was pursued, for confiscating the six counties of Ulster included in the O’Neill forfeitures, called the Ulster Plantation, and for planting the greater portion of those counties with British tenants.” 577 “The merciless manner in which these Ulster confiscations were carried out, and subsequent efforts to confiscate other districts of Ireland,” that history notes in discussing the reign of James I and his son and successor, Charles I, “were the proximate causes of the general rebellion in 1641, which afforded a foundation for creating further forfeitures, under the English statute called the ‘Adventurers Act.’” 578

Although the British presence in Ireland “dates from the era following the Norman Invasion of 1066,” a large number of English Protestants settled in what became known as Northern Ireland as part of what became known as “the Plantation of Ulster.” 579 “For historians,” one account emphasizes, “the defeat of Hugh O’Neill, the Earl of Tyrone, in 1603, and the Flight of the Earls in 1607 mark the end of the native Irish system and the beginning of Ireland’s complete domination by England.” 580 “The famed Flight of the Earls in 1607,” another account observes, “robbed Ulster of its natural aristocracy when Hugh O’Neill, Earl of Tyrone, and Rory O’Donnell, Earl of Tyrconnell, fled to the continent to avoid arrest, cherishing, perhaps, the hope of returning to Ireland with a Spanish army.” 581 As yet another account notes of the Irish response to English settlement: “This colonization was not welcomed by the Irish Catholic community that had previously controlled Northern Ireland or by their fellow Irish further south. In 1641, the Irish revolted under the leadership of Sir Phelim O’Neill and his followers.” 582 As that latter account notes of Irish Catholics: “They were angered by their subjection to English rule, the intolerance of the Protestant Establishment toward Catholicism, and, particularly in Ulster, immigrants’ domination of Irish lands.” 583

The Irish rising in October 1641 was a product of the times. While King Charles I battled Parliament, with the increasingly unpopular king always desperate for new funds to finance his troops and policies, 584 Irish Catholics—fearing an emboldened Protestant Parliament in England 585—rebelled, with Catholics killing Protestants and vice versa over the course of the months’ long, bloody rising. In conjunction with the Irish Rebellion of 1641-42, which lasted a relatively short period of time in comparison to the protracted English Civil War, 586 the “cruel and unusual punishments” concept was used in two separate documents: “The heads of the causes which moved the northern Irish, and catholicks of Ireland, to take arms” and “The humble remonstrance of the northern catholicks of Ireland, now in arms.” The first document—which includes the 18-point “heads of the causes”—ends with a reference to “cruel and unusual punishments.” As that document, described and reprinted elsewhere as the 1642 “Remonstrance of Irish of Ulster,” 587 read in paragraph 18:

18. Half this realm was found to belong unto his majesty, as his ancient demesne and inheritance, upon old feigned titles of three hundred years past, by juries, against law, their evidence and conscience, who were corrupted to find the said titles, upon promise of part of those lands so found for the king, or other reward, or else were drawn thereunto by threats of the judges in the circuits, or by heavy fines, mulcts, and censures of pillory, stigmatizings, 588 and other like cruel and unusual punishments. 589

In fact, many “infamous punishments,” lengthy imprisonments, and exorbitant fines 590 were threatened or put to use in Ireland during the Stuart dynasty. Jurors were intimidated, 591 and there was a use, or credible threats of, the pillory, cutting off ears, boring tongues, and branding foreheads with a hot iron. 592 The term stigmatizings—used in the Grand Remonstrance (1641), and referring to the corporal punishment of branding an offender’s face or another part of the person’s body—appears again in the Ulster Remonstrances (1642) and elsewhere, too. 593

Branding, a practice with ancient roots, 594 was a common punishment centuries ago, 595 including for the enslaved and various categories of offenders. 596 Thieves were branded with a “T”; blasphemers with a “B”; rogues with an “R”; and adulterers with an “A.” As one source notes: “Branding served primarily as a means of public stigmatization or shaming of the accused. The branding on the forehead or other parts of the face was an especially vivid warning to others of the offender’s previous behavior.” 597 One scholar notes that offenders “would commonly have the first letter of the offense branded onto his forehead, cheek, or hand” and that, at one time, “[t]estimonial crimes, such as blasphemy and perjury, were punishable by piercing the offender’s tongue.” As that scholar emphasized of the history of the Anglo-American practice:

The practice of branding survived in England until at least 1699; therefore, the practice of branding was also adopted by the American colonies. In some colonies, branding was replaced with requiring offenders to conspicuously wear a badge or a sewn letter indicating the crime that was committed. Under the East Jersey Codes of 1668 and 1675, first convictions for burglary were punishable by the branding of a “T” on the hand, and second convictions for the same offense were punishable by the branding of an “R” on the forehead of the offender. The Maryland colony branded the letter “B” on the forehead of convicted blasphemers, and adulteresses were required to wear the “scarlet letter” in many New England colonies. The letter “A” sewn to the adulterer’s clothing was common, but some victims were branded with the letter. 598

Among other things, a person subjected to the pillory, whipping, or stigmatizing could be challenged if called to jury service. 599

The second document—the 1642 petition “To the king’s most excellent majesty” titled “The humble remonstrance of the northern catholicks of Ireland, now in arms”—also contained a similar reference to “cruel and unusual punishments.” 600 As that petition, addressed to “Most gracious and dread sovereign,” 601 read in point “19”:

19. We cannot but with much sorrow represent to your Royal Majesty, how that the natives in the province of Ulster, and other the late Plantations made by the English here, were by force expelled out of their native seats and ancient possessions, without just grounds; and many of the principal gentlemen who served the Crown in the wars of Queen Elizabeth, and were the principal means of the overthrow of the late Earl of Tyrone and his adherents, were for their service bereaved likewise of their whole estates, and confined to perpetual imprisonment in the Tower of London; and that all the natives, as well in Ulster as in other the planted territories in this land, were by publick direction of your State here disarmed, of purpose to expose them to the massacre of the Protestant Plantators their adversaries, who were furnished with arms, and were tied by the condition of that their Plantation, to maintain always armed men on their lands; and upon that advantage destroyed many thousands of them by martial law, without any colour of justice; and likewise by false verdicts of Protestant juries, who were drawn thereunto, either by corruption of the state here, and chiefly of Sir William Parsons, one of your Majesty’s Justices of this realm, upon promise of giving the said juries part of those lands for which they were to give their verdict on your Majesty’s behalf, or some other reward; or else by the violent pressing and threats of your judges here in their circuits, or by heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments. 602

Part of the cruelty to which the two remonstrances of the Irish of Ulster referred related to efforts by English monarchs and their representatives to seize valuable lands in Ireland. Sir William Parsons, the surveyor-general of Ireland, was put in charge of “a commission for the discovery of defective titles” 603 and reportedly used “vexatious pleadings, questionable suits and partisan manipulations of his office to amass a great estate.” As Jon Crawford—a legal historian who has carefully studied Irish history and Ireland’s Court of Castle Chamber—writes: “Involved in the plantations of Ulster, Leitrim, Longford and Wexford, Parsons had succeeded his uncle, Sir Geoffrey Fenton, as surveyor-general in 1602. He became a notoriously unscrupulous master of the new court of wards in 1622 and was made an Irish councilor in 1623.” “Though he was made a baronet and became lord justice in 1640,” Crawford adds, “Parsons retired to England in 1648 amid accusations that he did much to stimulate the Irish rebellion.” 604

The Court of Castle Chamber was used by the English to oppress Roman Catholics in Ireland. 605 On October 23, 1641, as the Irish rising began, Sir William Parsons and another man, Sir John Borlase, issued a proclamation blaming the rising on “some evil effected Irish papists.” 606 However, Parsons was singled out by Irish Catholics as one of the causes of the Irish rising. Indeed, in A Remonstrance of Grievances Presented to His Most Excelletn Majestie, in the Behalfe of the Catholicks of Ireland (1643), blame for the rebellion was laid on the English administration in Ireland, including the actions of William Parsons. Note was taken of his “immortall hatred” of Catholics that threatened the “welfare and happinesse of this Nation.” In particular, Parsons and his allies were accused of endeavoring “to make themselves stil greater and richer, by the total ruine and extirpation of this people.” 607

The Irish had lodged multiple grievances before the October 1641 Irish rising. In State Papers relating to Ireland, one finds this entry for July 16, 1641, from Whitehall: “The King, having several times heard the Committee of the Irish Parliament and being ready to grant their petitions, so far as ‘could well stand with the service of His Majesty and the present constitution of that kingdom or with the nature of the things desired by them’ has this day ordered that Sir Dudley Carleton, Kt., collect and write out the grievances and the King’s answers, and enter both in the Register of the Acts of the Council.” 608 Among the grievances and Charles I’s replies: (1) “The High Commission Court should be abolished, and the ecclesiastical proceedings be left to the ordinary judicature in the sever dioceses.” The king’s answer: “The Court shall be suspended during the King’s pleasure.” 609 (2) “An Act should be passed forbidding any juror to be bound to the Castle Chamber, or to be there in any sort questioned, excepting corruption be proved against them. Juries shall not be compelled to respect the evidence of notoriously bad characters.” The king’s evasive answer: the Court of Castle Chamber “shall be regulated” on the English model. 610

Prior to the October 1641 Irish rising, the Irish Commons had also submitted to the Irish Lords a series of questions relating to “recent invasion of the established rights of the subject,” with a request that the Lords “require the Judges to give their opinions on them.” 611 Those questions included: (1) “Are the King’s subjects in Ireland free, and to be governed only by the Statute and Common Law of England?”; (5) “Are monopolies lawful? If so, how should those who infringe them be punished?”; (6) “May the Chief Governor punish by fine, imprisonment, mutilation, pillory, or otherwise?”; (8) “Are the subjects amenable to martial law in time of peace? If not, what is the punishment for those who inflict it upon them?”; (9) “Are voluntary oaths, taken for affirmance or disaffirmance of anything, punishable in the Castle Chamber? If so, why?”; (10) “Why is nobody admitted to reducement of fines or other penalties in the Castle Chamber or Council Board until he confesses the offence for which he is punished, though really he may be innocent?”; (16) “By what law are jurors that give verdict according to their conscience, and are sole judges of the fact, censured in the Castle Chamber, in great fines and sometimes pillories, with loss of ears and bored through the tongue, and marked sometimes with an hot iron and other like infamous punishments?”; (17) “Can the Castle Chamber mutilate people? If not, what penalty should be inflicted on those who have done so”?; (18) “Should the Castle Chamber, in passing censure, have regard to the words of the Great Charter, Salvo Contenemento, &c.”? 612

The Latin salvo contenemento suo means “saving his livelihood.” 613 In his Commentaries on the Laws of England, Sir William Blackstone later observed that “[t]he reasonableness of fines in criminal cases has also been usually relegated by the determination of Magna Carta, concerning amercements for misbehavior in matters of civil right.” In looking back to a much earlier use of the “salvo contenemento” language, Blackstone quoted the following text from the Magna Carta: “Liber homo non amercietur pro parvo delicto, nisi secundum modum ipsius delicti; et pro magno delicto, secundum magnitudinem delicti; salvo contenemento suo: et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur, salvo wainagio suo.” Blackstone’s translation: “no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear: saving to the landholder his contenement, or land; to the trader his merchandise; and to the countryman his wainage, or team and instruments of husbandry.” 614 According to one study of the Magna Carta, which had been written in Latin: “It was not in the interest of the state itself that the liber homo should be so heavily amerced as to be incapable of keeping up his position. Hence the common law confirmed by Magna Carta prohibited such ruinous amercements.” 615

The idea of avoiding excessive punishments thus dated back many centuries, long before the formation of the Queries in Ireland. “The English history of the prohibition on excessive fines is based on the principle of salvo contenemento, or the idea that no fine should be so damaging that it amounts to a life sentence,” one modern scholar, Tim Donaldson, explains, adding this commentary: “Despite excessiveness and proportionality having evaded bright-line classifications since before the Magna Carta, fines should not be so ruinous that they leave a person without means to care for themselves or their family. Historically, this principle even extended to merchants, providing them with sufficient means for economic survival when courts assessed monetary sanctions.” 616 Shortly before James II’s reign, Donaldson writes of a decision handed down during Charles II’s reign, “Chief Justice North of the Court of Common Pleas commented in Lord Townsend v. Hughes that ‘[i]n cases of fines for criminal matters, a man is to be fined by Magna [Carta] with a salvo contenemento suo; and no fine is to be imposed greater than he is able to pay.’” 617 “The Court of King’s Bench,” Donaldson emphasizes, “contemporaneously acknowledged in another case that it should mitigate fines imposed by lower tribunals when excessively imposed.” 618 In The Case of the William Earl of Devonshire (1689), the House of Lords struck down a £30,000 fine as “excessive and exorbitant, against Magna Charta, the common right of the subject, and against the law of the land.” 619

The 1641 Queries “placed the Irish council immediately on the defensive,” historian Jon Crawford writes of the Irish Privy Council, noting that “both Protestant and Catholic members of the parliament” supported the Queries even as “Bramhall and Bolton penned defences of their actions in the Irish council and warned that the replacement of the lord chancellor as speaker would threaten the stability of the kingdom as well as the lawful proceedings of parliament.” “The delay of the Irish judges prompted the commons to submit the Queries to the English parliament for a ruling on the points of law,” Crawford explains, observing that Patrick Darcy later emphasized in a speech in June 1641: “Ireland is annexed to the crown of England, and governed by the laws of England.” 620 The third query, or interrogatory, Crawford writes, “was the vital one for the continued existence of the conciliar court; the fourth query—asking the same question of the chief governor acting alone—suggested “that Strafford arrogated to himself the judicial power of the council board”; and the queries that followed demanded to know the legal authority for grants of monopolies and the legitimacy of Ireland’s lord deputy—as Crawford puts it—“to fine, imprison, pillory or mutilate those who violated the regulation of monopolies.” The Queries, Crawford notes, “placed the Irish judges in a hopeless quandary, since the lord lieutenant was now impeached, the lord deputy had recently died, the lords justices were personally compromised and the judges themselves sat on the very tribunals which were now under attack.” 621

Before the Irish judges ultimately offered “timid responses” to the Queries in August 1641, historian Jon Crawford explains, “the Irish committee of the privy council, writing on 11 May 1641, replied to the Queries by simply restating the judicial boundaries which delineated the star chamber in England and required castle chamber to conform to them”; the commons sought from the lords an answer to the Queries on May 12th, the day Thomas Wentworth, the Earl of Strafford, was executed at the age of 48 on Tower Hill; the Irish Parliament was prorogued as authorities played for more time; and after Wentworth’s execution, “Charles I proceeded to address the Irish grievances by his own authority, rather than that of parliament.” “Sitting with twelve members of the privy council on 16 July 1641,” Crawford observes, “the king ordered the secretary of state, Dudley Carleton, to enter the royal answers in the register of the council and to prepare letters to be given to the Irish parliament.” 622 On August 19, 1641, in a communication to Edward Littleton (appointed Lord Keeper of the Great Seal of England after the previous keeper, John Finch, fled into exile), Thomas Tempest—the Attorney General for Ireland—reported:

The Commons asked the Lords to require the Judges to answer certain questions, and when the answers given were not satisfactory to the Commons, that House drew up answers on points of law to its own questions. I send you questions and answers. When the Commons’ answer came to be voted on by the Lords, the Judges were absent on circuit, and I (being present by virtue of his Majesty’s writ) asked to speak. I reminded their Lordships of Lord Chancellor Egerton’s speech on the question of the Postnati, in which he said that the Lords, for their judgment on matters of law, are informed by the Judges. I also read them part of the Irish Statute of 11 Eliz., which declared that, according to Poynings’ law, no matters could be settled in the Irish Parliament without the King’s consent, and desired that the Judges’ answers and the other declarations might be sent to England. In this I failed. 623

Along with enclosing a “Copy of Questions submitted by the Irish Commons to the Irish Lords, with a request that the Lords will require the Judges to give their opinions on them,” there was enclosed an “Answer and Declaration of the Judges to the foregoing.” 624

The enclosed “Answer and Declaration of the Judges” read in part as follows:

They preface their answers with a few general considerations.

They protest against being asked questions in this way. There is no precedent for it, except in the time of Richard II., and this they think is not an example. They beg that their reasons for this objection may be remembered, and imparted to anybody who receives a copy of their answers.

. . . .

These twenty-two questions contain at least fifty general interrogatories. If they are now forced to give an answer upon all these points, they will not be bound by it in future. Judges, Holy Fathers, Councils, and Parliaments have ever been apt to change their opinion. Their answer on these questions must necessarily be based on the details, and if they give an answer now, it might quite rightly be upset if a change of details presented the problem in a different form at some future time.

Many of the questions asked affect in a high degree the Prerogative, the Government, the Revenue, and the martial affairs of the King. The Judges can give no opinion on these points. If, moreover, the questions are drawn up with a view to punishment, they must necessarily give their opinion only with the most careful reserve. The answering of such questions might prejudice the position of the Bench in future. Many of them have already been voted and presented to the King as grievances. The questions take for granted many of the questions upon which they demand an opinion, and the Judges do not think that any useful end would be served by answering such general interrogatories as “By what law? in what case? of what power? of what force? how? where? why? by whom? wherefore? what punishment? by what rule of policy? in what condition of persons? On all these questions subsequent Judges might differ from them. Nevertheless they answer as follows:—

(1.) The people of Ireland are free, and subject to the English laws, but as many laws have grown obsolete in England, “and some particular ancient laws, as well in criminal as civil causes, have been changed by interpretation of the Judges there, as they find it most agreeable for the general good of the Commonwealth, and as the times did require it; so our predecessors, the Judges of this kingdom, as the necessities of the times did move them, did declare the law in some particular cases, otherwise than the same is practised in England, which the now Judges cannot alter without apparent diminution of a great part of his Majesty’s standing revenue, and opening a gap for the shaking and questioning of the estates of many of his Majesty’s subjects.” The law with regard to felony and treason is different here from in England. A man killed in rebellion here forfeits all his property to the Crown. This is not so in England. In the same way the Irish Bench has always held that persons who commit felony and then will not submit to the law, but hide and live by robbery, are levying war against the King, and are, therefore, guilty of treason. . . . [T]here are several statutes in force, both in England and Ireland, which are not part of the common law, as Lex et Consuetudo Parliamenti and others.

(2.) The Judges do take the oath of Judges, as prescribed and explained in 18 and 20 Ed. III. They may not delay suits, except when they sit under pretence of any Act of State, proclamation, or order from the Government. There is no penalty for their transgressions, other than what is declared in their oath.

(3.) This is a question of the Prerogative which we, as Judges, do not feel called upon to decide. We hold that it is no part of our duty to seek, without the Royal permission, into the Commissions or Instructions of the Chief Governor and Council of Ireland as to give opinion on their jurisdiction. See 28 Hen. VI., c. 2 [Ireland], where, after matters are directed to be sent to the ordinary Courts, the King’s prerogative is expressly saved.

(4.) Their answer is here the same as to the third question.

(5.) Prima facie, all grants of monopolies are against the law, but the King, whose advantage is that of the Commonwealth, may make particular exceptions to this rule. Thus, if somebody introduces a new trade, he may fairly be given a monopoly by the King for a certain time. The thing may become lawful or unlawful, according as the details alter. The Statute 21 Jac. I., c. 3 [England], concerning monopolies, should be consulted.

(6.) Answer same as to 3.

(7.) Acts of State or Proclamations cannot override the common law, but they are useful, and, when they are not given ultra vires, the contemners of them may be punished. They can say no more.

(8.) They know no rule of law by which martial law can be enforced, but this is a matter of prerogative.

(9.) The taking and giving of voluntary oaths may be illegal, as the King alone, the fountain of justice, is empowered to give them. Persons doing these things may be tried by the common law, or, in bad cases, by the Castle Chamber. Orders and acts based on such voluntary oaths are apt to cause strife.

(10.) There is no certain rule for reducement of fines. The matter is one which the King’s clemency decides after the sentence has been passed. It is usual not to reduce the fine till the person affected has admitted his guilt.

(11.) Copies of their indictments cannot be denied to those accused of treason or felony.

. . . .

(16.) Judges are judges of validity of evidence, even though jurors be sole judges of fact. Juries which give their verdict clearly against the weight of evidence, have been and ought to be censured in the Castle Chamber. They have of old been punishable by a second jury of 24, who can brand them as perjurors if they find the verdict to have been against the weight of evidence. This is the right Court to do these things.

(17.) Answer same as to 16.

(18.) The clause of the Great Charter which is mentioned is only to be understood of amerciaments, not of fines. 625

Eventually, the handling of, and responses to, the Queries, became moot as the Irish rising began in October 1641 and all the violence took the oxygen away from those making legal arguments. “[T]he Irish Rebellion in October 1641,” Crawford observes, brought “a sudden end to the relevance of the Queries and the opportunity to resolve the central issues of prerogative law in relation to common law principles.” 626 “On 22 October 1641,” Crawford notes, “the rebellion in Ulster by Phelim O’Neill and the arrest of conspirators in Dublin by the lords justices created a military emergency which made the return of normal judicial routine impossible.” As Crawford adds: “Fighting quickly drew into the conflict all the Irish counties, and outrageous military excesses widened the gap between adversaries and made negotiations more difficult, although every side in the deepening civil war claimed to be fighting for the crown.” 627 The “targeting” of the Court of Castle Chamber by the Queries, Crawford concludes in retrospect of that prerogative court, “is a remarkable, even modern, example of legislative reform posing as interrogation.” “Without claiming that the court was inherently illegitimate,” he notes, the Queries served the purpose of showing that “the tribunal had become a rogue carnivore, tearing ruthlessly at the social fabric and undermining the faith and trust of the king’s subjects in his law.” 628

In the decade prior to the Irish rising of 1641, the Court of Castle Chamber imposed draconian sentences. Indeed, chapter ten of Jon Crawford’s book is aptly titled “The Menace of Judicial Despotism: The Court of Castle Chamber, 1629 to 1641.” The court continued ordering the use of the pillory during this period, with one man, Patrick O’Mulvaney, convicted of slandering members of the Irish nobility in the early 1630s and ordered to be whipped and pilloried and imprisoned for life, and a sheriff, James McCarton, found guilty of extortion, fined £200, and ordered to be pilloried in Dublin and Downpatrick in 1631. Much of the period covered by chapter ten of Crawford’s book coincided with Thomas Wentworth’s stint as Ireland’s lord deputy from 1632 to 1640, with Wentworth recalled to England in the late 1630s, then impeached in 1640 before being put on trial and executed the following year as a result of a bill of attainder. 629 One historical account notes that from January until March of 1641, the members of the Irish Parliament “were busy co-operating with the Commons of England in regard to the Earl of Strafford’s trial.” 630

During his tenure as lord deputy, Wentworth used the Court of Castle Chamber—as Crawford writes—“as a threat to his adversaries, intimidating Lord Wilmot through bills in castle chamber and exchequer so that he would agree to transfer his interest in the castle of Athlone to the crown,” and by threatening “a heavy fine and imprisonment” against “the former lord chief justice, the wealthy earl of Cork” that led to “the humiliating capitulation of the earl prior to a full hearing of his cause.” Fines and imprisonment ordered by the Court of Castle Chamber—or the threat thereof—were also used to coerce jurors, with the court also handling ecclesiastical matters. “The famously extra-legal machinations of Wentworth as lord deputy of Ireland were prefigured in his multiple star chamber cases in England,” Crawford writes, noting how, in England, the “cunning Wentworth” had commenced an action against his Yorkshire neighbor, David Foulis, for “scandalous words” that resulted in Foulis being fined £1,000 and the attachment of his lands for payment. 631

In those contentious, prejudice-filled times, prerogative courts such as England’s Star Chamber and Ireland’s Court of Castle Chamber were thus powerful tools of oppression. Thomas Wentworth—King Charles I’s chosen Lord Deputy of Ireland, and later known as the Earl of Strafford—had nearly “complete control of the Court of Castle Chamber” by the beginning of 1636. 632 “Without control of the Court of Castle Chamber,” historian Hugh Kearney explains, “it is very doubtful whether Wentworth would have been able to force through his policies so effectively and so swiftly.” 633 Noting that Wentworth “depended on it to deal with any tendency towards opposition which he found in important quarters,” Kearney writes: “Resistance to the plantation of Galway was crushed by the imposition of heavy fines and the imprisonment of the Galway jury on the grounds of conspiracy.” 634

The Court of Castle Chamber was “used to enforce proclamations” and to punish the offence of “conspiracy,” and those threatened included Sir Vincent Gookin and Viscount Wilmot, former vice-president of Connacht. 635 “Other references in the State papers provide examples of heavy fines and imprisonment being inflicted,” Kearney stresses, adding: “Perhaps the most important intervention of the court in Wentworth’s later years was in Ulster where it inflicted heavy fines and life imprisonment upon a group which refused to take an oath denouncing the Scottish National League and Covenant.” 636 “The resentment which it aroused was concealed until after Wentworth’s fall from power,” Kearney notes of the Court of Castle Chamber, “but even then it was difficult to attack the legal position of the court directly and the opposition groups in the 1640 parliament had to content themselves with asking by what law were jurors sentenced to great fines, pillories, loss of ears, being bored through the tongue, branding and similar punishments.” 637

The use of the cruel and unusual punishments terminology in the 1642 Ulster Remonstrances in association with various non-lethal corporal punishments is significant, because it makes clear that such corporal punishments—even decades before the English Bill of Rights—were plainly seen as qualifying as cruel and unusual ones. Indeed, a straightforward application of the interpretive canon ejusdem generis—Latin for “of the same kind or class” 638—establishes that excessive and non-lethal corporal punishments qualified as “cruel and unusual punishments” in that era. 639 As noted above, the 1642 Irish remonstrances refer to “heavy fines, mulcts, and censures of pillory, stigmatizings, 640 and other like cruel and unusual punishments.” 641

The ejusdem generis canon, the use of which in England predated the Irish remonstrances 642 and which was embraced, like the noscitur a soclis maxim, 643 by early American courts, 644 applies “when a list of more than one item within an enumeration is followed by a catch-all phrase at the end.” 645 Such interpretive maxims—the case law shows—have long been employed in interpreting statutes and constitutions. 646 “The meaning of the catch-all phrase,” the Supreme Court of Indiana has written of the application of that canon, “turns on the nature of the items within the enumerated list.” 647 As that court emphasized, using the same “other like” language found in the 1642 remonstrances but in a very different factual example:

Suppose, for example, an invitation to a party says the menu will consist of “hamburgers, hot dogs, and other like food.” Under common usage, we expect “other like food” to be defined with reference to the foods listed. Hamburgers and hot dogs are casual foods, inexpensive, and easy to prepare. Because they “all belong to an obvious and readily identifiable genus”, we expect that “the speaker or writer has that category in mind for the entire passage.” Given the invitation’s list of specified foods, it would come as little surprise if the host also served baked beans and potato salad. But no one would expect the menu to include lobster thermidor or pheasant under glass. 648