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Blog Post  Massachusetts Declaration of Rights – Article 26

Cruel or Unusual Punishment
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Article 26 (1780)

No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.

Article of Amendment, Article 116 (1982)

Article 26 of part 1 of the Constitution of the Commonwealth is hereby amended by adding the following two sentences:

No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.

Precedents, Following Law, and Quotations

English Bill of Rights (1689):

“And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections. . . do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare. . .
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. . .” 

46th Liberty from The Massachusetts Body of Liberties , drafted by Nathaniel Ward, adopted by the General Court of the Commonwealth of Massachusetts Bay (1641):

“For bodilie punishments we allow amongst us none that are inhumane, Barbarous, or cruel.”

Eighth Amendment, United States Constitution became law Dec. 15, 1791 when ratified by Virginia, the 10th state to approve the 10 Amendments to the U.S. Constitution, now known as the Bill of Rights:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Extensive annotations for the Eighth Amendment, including links to Supreme Court opinions, the U.S. Code, and selected topics, as well as enhanced navigation through linked footnotes, are available from the Congressional Research Service in the CRS Annotated Constitution.
Article 5, Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A, (1948):

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Death Penalty

“Article 116 of the Amendments to the Massachusetts Constitution, providing that no provisions of the Massachusetts constitution ‘shall be construed as prohibiting the imposition of the punishment of death,’ precluded this court from holding that the death penalty in itself was invalid under the State Constitution, but did not bar judicial review of the constitutionality on other grounds. General Laws . . . providing for the imposition and execution of the death penalty in certain murder cases violate art. 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.”

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