his amendment was ratified as part of the United States Bill of Rights in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like case have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[1]
The state of Virginia had adopted this italicized language of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.[2] James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.[2]
A hundred years before its approval by the Congress, England’s declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day.[3] Members of Parliament then explained in August 1689 that “the Commons had a particular regard…when that Declaration was first made” to punishments like the one that had been inflicted by the King's Bench against a perjurer named Titus Oates.[3] A few months after that explanation, Parliament enacted the English Bill of Rights into law in December 1689.[3] Titus Oates was a fixture on the London pillory circuit during the reign of King James II (father of Queen Mary II),[3] and Oates has become a fixture of the U.S. Supreme Court’s Eighth Amendment jurisprudence.[4]
Pertinent part of the English Bill of Rights, December 1689.
In England, the "cruel and unusual punishments" clause was a limitation on the discretion of judges, according to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but it's discretion is regulated by law. For the bill of rights...