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57 Calif. L. Rev. 839 (1969)
Nor Cruel and Unusual Punishments Inflicted: The Original Meaning

handle is hein.journals/calr57 and id is 867 raw text is: California Law Review VOL. 57 OCTOBER 1969 No. 4 Nor Cruel and Unusual Punishments Inflicted: The Original Meaning Anthony F. Granucci* The histories of the prohibitions of cruel and unusual punishments found in the English Bill of Rights of 1689 and in the eighth amendment to the United States Constitution have never been adequately investi- gated. Judges and scholars alike have been content to accept the con- clusions of the American framers that the clause was originally designed to prohibit barbarous methods of punishment and that it was not, there- fore, intended as a general prohibition on merely excessive penalties. This Article will attempt to demonstrate that the conclusions of the American framers were based on a misinterpretation of the intent of the drafters of the English Bill of Rights. The Article first analyzes the positions of the American framers. It then traces the legal developments which resulted in the English Bill of Rights of 1689. It concludes with an explanation of the way in which the American framers mis- interpreted English law. I THE AMERICAN FRAMERS ON CRUEL AND UNUSUAL PUNISHMENT By the spring of 1776 the mood of the American colonials had gone such Lengths, that it was a Matter of Moonshine . . . whether Independence was at first intended, or not.' In early May a con- vention of delegates from the counties of Virginia was called to deter- * A.B., 1965, University of California at Berkeley; J.D., 1968, Harvard Uni- versity. Member of the California Bar. 1. Letter from George Mason to John Mercer, October 2, 1778, cited in R. RuTLAND, TH BmTR OF THE BDLL OF RIGHrS 1776-1791, at 30 (1955) [hereinafter cited as R. RuTLAND].

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