Insurrections often are propagated upon misinformation. So too are the most recent band of domestic terrorist who like to hide behind our most sacred American institutions. In this series, I want to explore the Bill of Rights and why some of the hype and hyperbole thrown around by the extremist is not just wrong but dangerously misguided.
Over the next several weeks, I will discuss the history of our constitutionally protected rights and why Congress chose to codify these and not others. I am not an attorney so I will not go into some of the legal aspects of these amendments, so please don’t ask me if your religious obsession for cordite is protected by Amendment 1 or Amendment 2. I plan to focus on why these amendments exist.
Today, I want to discuss part of Amendment 8:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
As said by Caretaker Argus Filch in Harry Potter and the Sorcerer’s Stone: “A pity they let the old punishment die… Was a time detention found you hanging by your thumbs in the dungeons… God, I miss the screaming.” The English were EXTERMELY creative and cruel when it came to punishments for crimes. People were “hanged, drawn and quartered”, burned, drowned, stoned, lashed, pilloried, and any all manner of extreme punishment and degradation. Huge fines and bails were common and the intent of punishment.
In the 18th-century, law enforcement was very different from modern-day policing. The prosecution of criminals remained largely in the hands of victims themselves, who frequently wanted revenge more than justice. While criminal cases during the 1700s were brought before local magistrates, who dealt with crimes without the benefit of a jury. Magistrates were themselves unpaid officials who were drawn from the ranks of the wealthy, and were expected to defend the English law as amateurs. As a result, many magistrates were easily corrupted and frequently demanded excessive bails or even bribes from both sides as they adjudicated cases.
For more serious crimes such as rape or murder, cases were referred to Crown courts, who sat at quarterly assizes in large towns. Most felony cases did not involve defense attorneys and witnesses were usually examined directly by the judge and even by members of the jury. The vast majority of cases lasted for only a matter of minutes, and it was not uncommon for dozens of cases to be heard in a single day.
The 18th-century criminal justice system relied heavily on the existence of the ‘bloody code’. This was a list of the many crimes that were punishable by death – by 1800 this included well over 200 separate capital offences. Guilty verdicts in cases of murder, rape and treason – even lesser offences such as poaching, burglary and criminal damage – could all possibly end in a trip to the gallows. Though many people charged with capital crimes were either let off or received a lesser sentence, the hangman’s noose nevertheless loomed large.
Most punishments during the 18th-century were held in public. Executions were elaborate and shocking affairs, designed to act as a deterrent to those who watched. Prisoners were executed in front of noisy, riotous audiences and many hangings resembled more of a fair than a solemn legal ceremony. A range of other punishments were, however, also frequently imposed. Criminals convicted of lesser crimes were fined, branded on the hand by a hot iron, or shamed in front of the general public: by being whipped ‘at the cart’s tail’, or being set in the pillory and pelted with rotten eggs and vegetables.
In a speech before the Virginia House of Burgesses, Patrick Henry stated: “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging the future but by the past.” The “past,” as the member of our first Congress knew it, was one shadowed by the threat of torture for any who disagreed with government policies. Believing that inhumane punishments had no place in a nation founded upon the principle of liberty, the first Congress sought to prohibit cruel and unusual punishment. The colonists were also wary of authority figures and were particularly concerned about guarding against an abuse of power by such individuals. The Eighth Amendment spoke to this concern by prohibiting judges from imposing arbitrary punishments upon individuals who came before the court.
In some countries, “disloyal or troublesome” citizens are jailed indefinitely on trumped-up charges. If they cannot pay their bail, they don’t get out. The U.S. Constitution, however, recognizes that those accused of crimes have rights. The Bill of Rights guarantees the basic human right of people to be treated with respect, even if they are convicted criminals. In this way, the Eighth Amendment is similar to the Sixth: it protects the rights of the accused, the people most susceptible to abuse because they have the least resources. And it prohibits the use of cruel or unusual punishment.
We still execute people in the United States. Sometimes punishments are still extreme and malicious but we live in a nation with evolving standards of decency (POST Trump). What was considered commonplace and reasonable in the 18th and 19th Century are now considered “cruel and unusual” eventually we will live up to standard we set for ourselves in 1791.
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Michael Carver -- Historical Interpreter/Reenactor 