Amendment VIII

Document 11

James Iredell, Marcus, Answers to Mr. Mason's Objections to the New Constitution

1788Pamphlets 359--60

As to the constituting of new crimes, and inflicting unusual and severe punishment, certainly the cases enumerated wherein the Congress are empowered either to define offences, or prescribe punishments, are such as are proper for the exercise of such authority in the general Legislature of the Union. They only relate to "counterfeiting the securities and current coin of the United States," to "piracies and felonies committed on the high seas, and offences against the law of nations," and to "treason against the United States." These are offences immediately affecting the security, the honor or the interest of the United States at large, and of course must come within the sphere of the Legislative authority which is intrusted with their protection. Beyond these authorities, Congress can exercise no other power of this kind, except in the enacting of penalties to enforce their acts of legislation in the cases where express authority is delegated to them, and if they could not enforce such acts by the enacting of penalties those powers would be altogether useless, since a legislative regulation without some sanction would be an absurd thing indeed. The Congress having, for these reasons, a just right to authority in the above particulars, the question is, whether it is practicable and proper to prescribe limits to its exercise, for fear that they should inflict punishments unusual and severe. It may be observed, in the first place, that a declaration against "cruel and unusual punishments" formed part of an article in the Bill of Rights at the revolution in England in 1688. The prerogative of the Crown having been grossly abused in some preceding reigns, it was thought proper to notice every grievance they had endured, and those declarations went to an abuse of power in the Crown only, but were never intended to limit the authority of Parliament. Many of these articles of the Bill of Rights in England, without a due attention to the difference of the cases, were eagerly adopted when our constitutions were formed, the minds of men then being so warmed with their exertions in the cause of liberty as to lean too much perhaps towards a jealousy of power to repose a proper confidence in their own government. From these articles in the State constitutions many things were attempted to be transplanted into our new Constitution, which would either have been nugatory or improper. This is one of them. The expressions "unusual and severe" or "cruel and unusual" surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification. If to guard against punishments being too severe, the Convention had enumerated a vast variety of cruel punishments, and prohibited the use of any of them, let the number have been ever so great, an inexhaustible fund must have been unmentioned, and if our government had been disposed to be cruel their invention would only have been put to a little more trouble. If to avoid this difficulty, they had determined, not negatively what punishments should not be exercised, but positively what punishments should, this must have led them into a labyrinth of detail which in the original constitution of a government would have appeared perfectly ridiculous, and not left a room for such changes, according to circumstances, as must be in the power of every Legislature that is rationally formed. Thus when we enter into particulars, we must be convinced that the proposition of such a restriction would have led to nothing useful, or to something dangerous, and therefore that its omission is not chargeable as a fault in the new Constitution. Let us also remember, that as those who are to make those laws must themselves be subject to them, their own interest and feelings will dictate to them not to make them unnecessarily severe; and that in the case of treason, which usually in every country exposes men most to the avarice and rapacity of government, care is taken that the innocent family of the offender shall not suffer for the treason of their relation. This is the crime with respect to which a jealousy is of the most importance, and accordingly it is defined with great plainness and accuracy, and the temptations to abusive prosecutions guarded against as much as possible. I now proceed to the three great cases: The liberty of the press, the trial by jury in civil cases, and a standing army in time of peace.

The Founders' Constitution
Volume 5, Amendment VIII, Document 11
The University of Chicago Press

Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, Published during Its Discussion by the People, 1787--1788. Brooklyn, 1888. Reprint. New York: De Capo Press, 1968.

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