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The United States Supreme Court, in its decisions on the Eighth Amendment, has enquired into the English antecedents of the prohibition against cruel and unusual punishment. The decision of Mr. Justice Marshall in Furman v. Georgia contains a scholarly discussion of that history.

The Eighth Amendment's ban against cruel and unusual punishments derives from English law. In 1583, John Whitgift, Archbishop of Canterbury, turned the High Commission into a permanent ecclesiastical court, and the Commission began to use torture to extract confessions from persons suspected of various offences. Sir Robert Beale protested that cruel and barbarous torture violated Magna Carta, but his protests were made in vain.

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

The treason trials of 1685 - the 'Bloody Assizes' - which followed an abortive rebellion by the Duke of Monmouth, marked the culmination of the array of horrors, and most historians believe that it was this event that finally spurred the adoption of the English Bill of Rights containing the progenitor of our prohibition against cruel and unusual punishments. The conduct of Lord Chief Justice Jeffreys at these trials has been described as an 'insane lust for cruelty' which was 'stimulated by orders from the King' Games II). The Assizes received wide publicity from Puritan pamphleteers and doubtless had some influence on the adoption of a cruel and unusual punishment clause. But, the legislative history of the English Bill of Rights of 1689, indicates that the Assizes may not have been as critical to the adoption of the clause as it is widely thought. After William and Mary of Orange crossed the Channel to invade England, James II fled, Parliament was summoned into session, and a Committee was appointed to draft general statements containing 'such things as are absolutely necessary to be considered for the better securing of our religion, and liberties.' An initial draft of the Bill of Rights prohibited 'illegal' punishments, but a later draft referred to the infliction by James II of 'illegal and cruel' punishments and declared 'cruel and unusual' punishments to be prohibited. The use of the word 'unusual' in the final draft appears to be inadvertent.

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

Whether the English Bill of Rights prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishment, as a reaction to barbaric and objectionable modes of punishment. or both, there is no doubt whatever that in borrowing the language and including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments.21

The United States Supreme Court has indicated in the clearest terms that whatever the original meaning of the English Bill of Rights' prohibition against cruel and unusual punishment, the court was not to be imprisoned within those historical origins in approaching the Eighth Amendment. The amendment has not been regarded as a static concept; as Chief Justice Warren said in an often-quoted phrase, 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'22 Similarly, it was submitted in the McCann case that Parliament, in passing the Canadian Bill of Rights in 1960, did not intend to give a restricted meaning to section 2(b). The section's very wording embraces treatment as well as punishment, and indicates that the clause was intended to operate in the context of modern Canadian society, and was not to be bound by the narrow historicism of England in 1688. Further, to read 'cruel and unusual' as a prohibition simply against illegal punishment or treatment would be to assign the clause to the status of mere rhetoric. Clearly, it would not have been necessary for Parliament to pass a special enactment protecting Canadian citizens against punishment and treatment for which there was no lawful authorization.

In one of the earlier Canadian decisions, R. v. Buckler,23 His Honour Judge Carlson, in seeking guidance in the proper interpretation of section 2(b), looked to the Universal Declaration of Human Rights (1948), article 5, which reads, 'no-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'24 He also quoted the views expressed by two respected criminal law scholars on this clause:

Underlying this proposition are the two ideas that punishment may offend against human rights because (a) it imposes unnecessary suffering, that is, suffering not justified by some purpose other than the infliction of suffering, and (b) even if it does not inflict unnecessary suffering, it may constitute an affront to human dignity and decency.

Little more need be said about these two ideas than that they must be related to the social circumstances standards of living, and attitudes to the individual citizen in each countrv.25

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