Amicus Curiae Brief — Tyson Timbs, Petitioner v. Indiana

Supreme Court briefSep 10, 2018

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No. 17-1091

IN THE

Supreme Court of the United States

_________

TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petitioners,

STATE OF INDIANA,

_________

Respondent.

On Writ of Certiorari to the

Indiana Supreme Court

_________

BRIEF AMICI CURIAE OF

EIGHTH AMENDMENT SCHOLARS IN

SUPPORT OF NEITHER PARTY

_________

DAVID SCHULMEISTER*

NICHOLAS M. MCLEAN

CADES SCHUTTE LLP

1000 Bishop Street

Honolulu, HI 96813

dschulmeister@cades.com

(808) 521-9392

*Counsel of Record

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .......................... 2

SUMMARY OF ARGUMENT ........................... 2

ARGUMENT ..................................................... 5

I. THE RIGHT TO FREEDOM FROM

EXCESSIVE FINES HAS DEEP

HISTORICAL ROOTS ................................. 5

A. Magna Carta Recognized

Fundamental Limitations on

Monetary Penalties ................................ 5

B. The English Bill of Rights’ Provision

that “Excessive Fines” “Ought Not To

Be” “Imposed” Was a Reaction to

Notorious Seventeenth Century

Abuses ..................................................... 8

1. The Star Chamber ............................. 8

2. The Bill of Rights of 1689.................. 12

II. FROM THE EARLY YEARS OF

AMERICAN HISTORY, FREEDOM

FROM EXCESSIVE FINES WAS

RECOGNIZED AS A FUNDAMENTAL

RIGHT .......................................................... 25

A. Early American Understandings of

the Right to Freedom from “Excessive

Fines” Were Informed by the Lessons

of History ................................................ 25

B. In Colonial and Early State History,

the Term “Fines” Was Understood to

Encompass a Broad Range of

Penalties ................................................. 32

CONCLUSION .................................................. 36

APPENDIX ........................................................ 1a

TABLE OF AUTHORITIES

Page(s)

Cases

Austin v. United States,

509 U.S. 602 (1993) .............................................. 32

Browning-Ferris Indus. of Vermont, Inc.

v. Kelco Disposal, Inc.,

492 U.S. 257 (1989) ...................................... passim

Commonwealth v. 1997 Chevrolet &

Contents Seized from Young,

639 Pa. 239, 160 A.3d 153 (2017) ........................ 36

Commonwealth v. Morrison,

9 Ky. (2 A.K. Marsh.) 75 (1819) ........................... 29

Dep’t of Revenue of Montana v. Kurth

Ranch,

511 U.S. 767 (1994) .............................................. 36

District of Columbia v. Heller,

554 U.S. 570, 593-94 (2008) .......................... 27, 31

Godfrey’s Case,

11 Co. Rep. 42a, 77 Eng. Rep. 1199

(K.B. 1615)........................................................ 9, 28

Goodall v. Bullock,

Wythe 328 (Va. Ch. 1798) .................................... 35

Hanscomb v. Russell,

77 Mass. 373 (1858) ............................................. 33

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 17

Impeachment of Sir Richard Bolton,

4 How. St. Tr. 51 (Parl. (Ire.) 1641) ..................... 11

John Hampden’s Case,

9 How. St. Tr. 1054 (K.B. 1684) .................... 12, 13

Jones v. Commonwealth,

5 Va. (1 Call) 555 (1799) ................................ 28, 29

Jones v. SEC,

298 U.S. 1 (1936) .................................................. 11

Kerry v. Din,

135 S.Ct. 2128 (2015) ........................................... 27

Klopfer v. North Carolina,

386 U.S. 213 (1967) ................................................ 5

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 31

Powell v. McCormack,

395 U.S. 486 (1969) ........................................ 14, 15

Rex v. Bennett,

1 Strange 101, 93 Eng. Rep. 412

(K.B. 1718)............................................................ 22

TABLE OF AUTHORITIES—Continued

Page(s)

Second Trial of Titus Oates,

10 How. St. Tr. 1227 (K.B. 1685)......................... 17

Solem v. Helm,

463 U.S. 277 (1983) .......................................... 2, 27

Spalding v. New York,

45 U.S. 21 (1846) ............................................ 29, 30

State v. Danforth,

3 Conn. 112, 116, 117-18 (Conn.

1819) .................................................................... 31

The Case of William Earl of Devonshire,

11 How. St. Tr. 1353 (Parl. 1689) ............... passim

Townsend v. Hughes,

2 Mod. 150, 86 Eng. Rep. 994 (C.P.

1677) ..................................................................... 12

United States v. Bajakajian,

524 U.S. 321 (1998) ...................................... passim

Weems v. United States,

217 U.S. 349 (1910) .............................................. 18

TABLE OF AUTHORITIES—Continued

Page(s)

Constitutional Provisions & Declarations

U.S. Const. amend. VIII .................................... passim

U.S. Const. amend. XIV ........................................ 2, 30

English Declaration of Rights (1688) ............... passim

Mass. Body of Liberties (1641) ................................. 34

N.Y. Charter of Liberties and Privileges

(1683) .................................................................... 26

Penn. Frame of Gov., Laws Agreed

Upon in England (1682) ...................................... 25

Va. Decl. of Rights (1776) ...................................... 2, 27

TABLE OF AUTHORITIES—Continued

Page(s)

Statutes & Codes

Magna Charta, 9 Hen. III, ch. 14 (1225),

1 Stat. at Large 1 (1762 ed.) ........................ passim

Bill of Rights, 1 Wm. & Mary, 2d Sess.,

ch. 2 (1689), 9 Stat. at Large 67, 69

(1764 ed.) ...................................................... passim

Claim of Right Act 1689, Wm. & Mary c.

28 (Scot.) ............................................................... 16

1672 Conn. Pub. Acts 7 ............................................. 34

1702 Conn. Pub. Acts 10-11 ...................................... 34

1700-1769 Del. Laws 423 (1766) ............................... 35

1702 N.Y. Laws 49 .................................................... 34

1747 Mass. Acts 237-39 ............................................. 33

1754 N.H. Laws 73 .................................................... 35

1759 R.I. Pub. Laws 80 ............................................. 34

1764 Va. Acts 449-50 ................................................. 33

1765 Ga. Laws 248-64 ............................................... 33

1769 S.C. Acts i-276 .................................................. 33

1771 Pa. Laws 361..................................................... 33

vii

TABLE OF AUTHORITIES—Continued

Page(s)

1776-1777 Del. Laws 354-56 (1777) ......................... 33

1777 N.C. Sess. Laws 208-26 .................................... 33

1778 Conn. Pub. Acts 485-89 .................................... 33

1779 R.I. Pub. Laws 20 ............................................. 33

1779 Vt. Acts & Resolves 64-65 ................................ 33

1780 N.H. Laws 229 .................................................. 33

1782 Del. Laws 4 ...................................................... 33

1782 Md. Laws xvii-xviii ........................................... 33

1782 N.Y. Laws 479 .................................................. 33

1783 R.I. Pub. Laws 52 ............................................. 33

1785 N.Y. Laws 63 .................................................... 33

1785 Pa. Laws 244..................................................... 34

1785-1786 Del. Laws 8 (1786) .................................. 34

1786 N.J. Laws 344 ................................................... 33

1786 Va. Laws Ch. 64................................................ 28

1787 N.Y. Laws 398 .................................................. 34

1787 N.Y. Laws 426 .................................................. 34

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Other Authorities

Akhil Reed Amar, Sixth Amendment

First Principles, 84 Geo. L.J. 641

(1996) .................................................................... 27

Allan Nevins, The American States

During and After the Revolution,

1775-1789 (1924) .................................................. 27

Anon., A Letter to a Gentleman at

Brussels, Containing an Account of

the Causes of the Peoples Revolt from

the Crown (1689) .................................................. 15

Benjamin L. Oliver, The Rights of an

American Citizen (1832) .................................. 4, 30

Bernard Bailyn, The Ideological Origins

of the American Revolution (1967) ...................... 25

1 Bernard Schwartz, The Bill of Rights:

A Documentary History (1971) .................... passim

2 Bernard Schwartz, The Bill of Rights:

A Documentary History (1971) .................... passim

Beth A. Colgan, Reviving the Excessive

Fines Clause, 102 Cal. L. Rev. 277

(2014) ............................................................ passim

TABLE OF AUTHORITIES—Continued

Page(s)

Calvin R. Massey, The Excessive Fines

Clause and Punitive Damages: Some

Lessons from History, 40 Vand. L.

Rev. 1233 (1987) ................................................... 13

Cesare Beccaria, On Crimes and

Punishments and Other Writings

(Richard Bellamy ed., Richard

Davies trans., 1995) (1764) .................................. 21

Chilton L. Powell, Marriage in Early

New England, 1 New England Q.

323 (1928) ............................................................. 32

8 David Hume, The History of England

from the Invasion of Julius Caesar to

the Revolution in 1688 (1782) .............................. 14

David S. Lovejoy, The Glorious

Revolution in America (1987) .............................. 26

8 Debates of the House of Commons:

From the Year 1667 to the Year 1694

(Anchitell Grey ed. 1763) ..................................... 14

Edmund Randolph, Essay on the

Revolutionary History of Virginia

(c. 1809-1813) ....................................................... 27

Edward Coke, The Second Part of the

Institutes of the Laws of England 28

(E & R Brooke 1797) (1642) ............................. 7, 27

TABLE OF AUTHORITIES—Continued

Page(s)

1 Frederick Pollock & Frederic William

Maitland, The History of English

Law Before the Time of Edward I

(1895) ................................................................. 7, 8

Giles Jacob, A New Law-Dictionary (8th

ed. 1762) ................................................................. 6

H.D. Hazeltine, The Influence of Magna

Carta on American Constitutional

Development, 17 Colum. L. Rev. 1

(1917) .................................................................... 25

2 Henry Hallam, The Constitutional

History of England From the

Accession of Henry VII to the Death

of George II (2d. ed. 1829) .................................... 11

4 Henry Walter, A History of England

(1834) ...................................................................... 9

J.R. Tanner, English Constitutional

Conflicts of the Seventeenth Century

1603-1689 (1971 ed.) .............................................. 9

Jeremiah Dummer, A Defence of the

New-England Charters (1721) ............................. 26

2 John Bouvier, A Law Dictionary (15th

ed. 1890) ............................................................... 10

TABLE OF AUTHORITIES—Continued

Page(s)

4 John Campbell, Lives of the Lord

Chancellors and Keepers of the Great

Seal of England (1847) ........................................ 13

John F. Stinneford, Rethinking

Proportionality Under the Cruel and

Unusual Punishments Clause, 97 Va.

L. Rev. 899 (2011) ............................................ 3, 17

John Fox, Contempt of Court (1927) ......................... 12

John H. Langbein, The Origins of

Adversary Criminal Trial (2003)................... 16, 18

John Phillip Reid, The Ancient Constitution and the Origins of AngloAmerican Liberty (2005) ...................................... 16

Joseph Chitty, A Practical Treatise on

the Criminal Law (1819 ed.) ............................ 3, 24

Joseph Story, Commentaries on the

Constitution of the United States

(1833 ed.) .............................................................. 30

Kathryn Preyer, Penal Measures in the

American Colonies: An Overview, 26

Am. J. Legal Hist. 326 (1982) .............................. 31

Lois G. Schwoerer, The Declaration of

Rights, 1689 (1981) ...................................... passim

xii

TABLE OF AUTHORITIES—Continued

Page(s)

‘Mariland’s Grevances Wiy The Have

Taken Op Arms’, reprinted in 8 J. S.

Hist. 392 (1942) ................................................... 26

Nicholas M. McLean, Livelihood, Ability

to Pay, and the Original Meaning of

the Excessive Fines Clause, 40 Hastings Const. L.Q. 833 (2013) .................................. 3

Paul R. Hyams, King, Lords and

Peasants in Medieval England

(1980) .................................................................. 6, 7

Roger Lockyer, The Early Stuarts: A

Political History of England, 16031642 (1989) ............................................................. 9

Sollom Emlyn, Preface, in A Complete

Collection of State Trials (1730 ed.) .................... 22

Steven G. Calabresi et. al., State Bills of

Rights in 1787 and 1791: What

Individual Rights Are Really Deeply

Rooted in American History and

Tradition?, 85 S. Cal. L. Rev. 1451

(2012) .................................................................... 28

The Declaration of the Estates of the

Kingdom of Scotland (1689) ................................ 16

10 The Journals of the House of

Commons (1803 ed.) (1689) ................................. 17

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

1 The Manuscripts of the House of

Lords, 1689-1690 (1889 ed.) ................................ 17

The Star Chamber (John Southerden

Burn ed. 1870) ...................................................... 10

The Works of the Right Honourable

Henry late L. Delamer[e], and Earl of

Warrington (1694) ......................................... 19, 20

Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which

Rest Upon the Legislative Power of

the States of the American Union

(1868) ................................................................ 4, 31

Thomas Madox, The History and

Antiquities of the Exchequer of the

Kings of England (1711) ........................................ 7

Thomas Pitt Taswell-Langmead,

English Constitutional History:

From the Teutonic Conquest to the

Present Time (10th ed., 1946) .............................. 15

Thomas Tayler, The Law Glossary (1833

ed.) ........................................................................ 23

Walter J. Baldwin, Punishment Without

Crime; or Imprisonment for Debt

(1813) .................................................................... 21

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

4 William Blackstone, Commentaries on

the Laws of England (1769) ......................... passim

William Eden (Baron Auckland),

Principles of Penal Law (3d ed. 1775) ......... passim

William Hudson, A Treatise on The

Court of Star Chamber (1635), reprinted in 2 Francis Hargrave, Collectanea Juridica (1791) ...................................... 10

William Rawle, A View of the Constitution of the United States (2d ed.

1829) ..................................................................... 30

William Sharp McKechnie, Magna

Carta: A Commentary on the Great

Charter of King John (2d ed. 1914) ....................... 6

No. 17-1091

IN THE

Supreme Court of the United States

_________

TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petitioners,

STATE OF INDIANA,

_________

Respondent.

On Writ of Certiorari to the

Indiana Supreme Court

_________

BRIEF AMICI CURIAE OF

EIGHTH AMENDMENT SCHOLARS IN

SUPPORT OF NEITHER PARTY

_________

STATEMENT OF INTEREST

Amici curiae John D. Bessler, Beth A. Colgan,

and John F. Stinneford are law professors who study

and write about the Eighth Amendment.1

SUMMARY OF ARGUMENT

In deciding whether the Excessive Fines Clause

is incorporated against the States by the Fourteenth

Amendment, this Court must also address an

essential predicate question: What is the nature of

the right that the Excessive Fines Clause

guarantees?

This brief provides context for these questions by

offering an account of the constitutional and common

law history of the Excessive Fines Clause. The

Clause derived from English antecedents,2 and the

traditional common law right to freedom from

excessive monetary sanctions—recognized in Magna

Carta, reaffirmed in the English Bill of Rights of

1689—was widely regarded as a fundamental

1 Biographical statements are included in the Appendix.

No counsel for a party authored this brief in whole or in

part, and no person other than amici or their counsel

made a monetary contribution to its preparation or

submission. The parties consent to the filing of this brief.

2 The Excessive Fines Clause “was based directly on

Art. I, § 9 of the Virginia Declaration of Rights (1776),”

Solem v. Helm, 463 U.S. 277, 285 n.10 (1983), and its

language was drawn “verbatim from the English Bill of

Rights of 1689.” United States v. Bajakajian, 524 U.S.

321, 335 (1998). As a whole, the Eighth Amendment’s text

differs only in that “shall not be” replaces “ought not to

be” in the two earlier documents, and in minor orthographic variations in the English version.

precept of law by the seventeenth and eighteenth

centuries. This common law right protected offenders

in two core ways. First, it required that the amount

of a penalty bear a relationship to the gravity of the

offense it was designed to punish.3 Second, it

required that a penalty not exceed an offender’s

ability to pay it, and permitted an offender to

preserve a minimum core level of economic

subsistence and security notwithstanding the

imposition of punishment. This second principle—

sometimes referred to in cases and treatises by a

Latin maxim drawn from the language of Magna

Carta, “salvo contenemento”4—also enabled offenders

to avoid the severe collateral consequences often

associated with oppressive economic penalties, such

as imprisonment for nonpayment and the

impoverishment of innocent family members.5

3 This principle has been recognized by this Court, see

Bajakajian, 524 U.S. at 334, and has also been the subject

of substantial scholarly commentary, see, e.g., John F.

Stinneford, Rethinking Proportionality Under the Cruel

and Unusual Punishments Clause, 97 Va. L. Rev. 899

(2011) [Stinneford, Rethinking]; John D. Bessler, The

Birth of American Law: An Italian Philosopher and the

American Revolution 142-224, 368-75 (2014).

4 See Nicholas M. McLean, Livelihood, Ability to Pay,

and the Original Meaning of the Excessive Fines Clause,

40 Hastings Const. L.Q. 833, 836-38, 853-72 (2013)

(discussing this concept).

5 See, e.g., 1 Joseph Chitty, A Practical Treatise on the

Criminal Law 490 (1819 ed.); accord William Eden (Baron

Auckland), Principles of Penal Law 73 (3d ed. 1775); 4

William Blackstone, Commentaries on the Laws of England *371-73 (1769) [Blackstone, Commentaries]; see

infra I.A-B.

In America, as in England, these fundamental

principles shaped early understandings of what it

meant to enjoy the right to freedom from “excessive

fines.” This is demonstrated by colonial declarations

of rights, early decisional law, the American editions

of leading English treatises, and the influential

works

nineteenth

century

American

commentators. Moreover, there is substantial

historical evidence suggesting that in the American

colonies and the early states, the term “fines” was

broadly understood to encompass a variety of forms

sanctions—including

monetary

payments,

payments in kind, payments to a sovereign, and

payments to victims and nongovernmental entities—

and not artificially constrained by a proceeding’s

label as “civil” or “criminal.”7

6 See, e.g., Thomas M. Cooley, A Treatise on the Consti-

tutional Limitations Which Rest Upon the Legislative

Power of the States of the American Union 328 (1868) (“A

fine should have some reference to the party’s ability to

pay it.”) [Cooley, Constitutional Limitations]; Benjamin L.

Oliver, The Rights of an American Citizen 185 (1832)

(stating that, when fines are assessed, “[a] man’s farm or

stock in trade, ought never to be made a sacrifice, to the

ruin of himself and the distress of his family”); see infra

II.A.

7 Beth A. Colgan, Reviving the Excessive Fines Clause,

102 Cal. L. Rev. 277, 300-08 (2014) [Colgan, Reviving]; see

infra II.B.

ARGUMENT

THE RIGHT TO FREEDOM FROM

EXCESSIVE FINES HAS DEEP HISTORICAL

ROOTS

Magna

Carta

Recognized

Fundamental

Limitations

Monetary Penalties

The history of the right to freedom from

excessive monetary sanctions stretches back at least

to Magna Carta, the “foundation of our English law

heritage.” Klopfer v. North Carolina, 386 U.S. 213,

223 (1967). The barons who assembled at

Runnymede in 1215 and forced King John to agree to

Magna Carta “sought to reduce arbitrary royal

power, and in particular to limit the King’s use of

amercements as a source of royal revenue, and as a

weapon against enemies of the Crown.” BrowningFerris Indus. of Vermont, Inc. v. Kelco Disposal, Inc.,

492 U.S. 257, 270-71 (1989). Amercements were “the

most common criminal sanction in 13th-century

England,” id. at 269, and were a “medieval

predecessor[ ] of fines.” Bajakajian, 524 U.S. at 335.

Chapter 14 of Magna Carta, first codified in

statute in 1225, provides in relevant part:

A Free-man shall not be amerced for a

small fault, but after the manner of the

fault; and for a great fault after the

greatness thereof, saving to him his

contenement [“salvo contenemento suo”];

(2) and a Merchant likewise, saving to

him his merchandise; (3) and any

other’s villain than ours shall be

likewise amerced, saving his wainage, if

he fall into our mercy.

Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at

Large 1, 6-7 (1762 ed.).8 Chapter 14 limited abuses

by, inter alia, “requiring that the amount of the

amercement be proportioned to the wrong,”

Browning-Ferris, 492 U.S. at 271, and by requiring

that an amercement not be so severe as to take an

offender’s

“contenement,”

“wainage,”

“merchandise”—sometimes rendered in modern

translations as “livelihood.” Id.

“[T]o save a man’s ‘contenement’ was to leave

him sufficient for the sustenance of himself and

those dependent on him.” William Sharp McKechnie,

Magna Carta: A Commentary on the Great Charter of

King John 293 (2d ed. 1914). This meant that “[i]n no

case could the offender be pushed absolutely to the

wall: his means of livelihood must be saved to him.”

Id. at 287.9 The effect of Magna Carta’s protections

for “[m]erchant[s]” and “villain[s]”10 was similar: By

protecting “merchandise” and “wainage,” a minimum

8 The amercements chapter of Magna Charta, originally

numbered as Chapter 20, was renumbered as Chapter 14

in the version codified by statute in 1225.

9 See also Giles Jacob, A New Law-Dictionary (8th ed.

1762) (unpaginated) (defining “contenement” as “that

which is necessary for the Support and Maintenance of

Men, agreeable to their several Qualities, or States of

Life”).

10 A “villain,” or “villein,” was a type of feudal tenant.

See Paul R. Hyams, King, Lords and Peasants in Medieval England (1980) [Hyams, Peasants].

core level of economic subsistence was assured,

despite the imposition of monetary punishment.11

The principles set forth in Magna Carta were

confirmed and restated numerous times in

subsequent legislation during the thirteenth,

fourteenth, and fifteenth centuries. See Faith

Thompson, Magna Carta: Its Role in the Making of

the English Constitution, 1300-1629 10 (1948).

“Following Magna Charta a writ to enforce the

concept

salvo

contenemnento

developed,

fourteenth-century petitions tested it, and other laws

confirmed it.” Lois G. Schwoerer, The Declaration of

Rights, 1689 91 (1981) [Schwoerer, Declaration]; see

also Hyams, Peasants 44, 76, 143-44 (impact of

poverty as limiting amercements); Thomas Madox,

The History and Antiquities of the Exchequer of the

Kings of England 678 (1711) (similar; noting early

cases in which amercements were set such that an

offender could “sav[e] the Maintenance of himself,

his Wife and Children”).

For subsequent generations, Magna Carta

“becomes a sacred text, the nearest approach to an

irrepealable ‘fundamental statute’ that England has

ever had.” 1 Frederick Pollock & Frederic William

Maitland, The History of English Law Before the

Time of Edward I 152 (1895). “In age after age a

11 Coke describes wainage as “the contenement or coun-

tenance of the villain,” Edward Coke, The Second Part of

the Institutes of the Laws of England 28 (E & R Brooke

1797) (1642), and also suggests (relying on Ranulf de

Glanvill’s late twelfth-century treatise) that the protections of Chapter 14 were “made in affirmance of the

common law[.]” Id. at 27.

confirmation of it will be demanded and granted as a

remedy for those oppressions from which the realm

is suffering[.]” Id. Indeed, “[m]ore important than the

literal intent of the men of Runnymede is the

meaning that future generations were able to read

into their words.” 1 Bernard Schwartz, The Bill of

Rights: A Documentary History 7 (1971) [Schwartz,

Documentary History]. In this way, a document that

was a product of thirteenth century feudal class

struggles could nevertheless come to serve as a

“basis for molding the foundations of a

Parliamentary monarchy,” as a “vehicle to enable the

Parliamentary leaders to resist the misdeeds of

Stuart Kings four centuries later,” and, ultimately,

as “the core of the rights of Englishmen asserted by

American colonists[.]” Id.

The

English

Bill

Rights’

Provision that “Excessive Fines”

“Ought Not To Be” “Imposed” Was a

Reaction to Notorious Seventeenth

Century Abuses

The ancient right to freedom from oppressive

monetary sanctions was severely tested in the

seventeenth century. From the notorious and wellchronicled abuses of that era emerged the English

Bill of Rights’ provision that “excessive Fines” “ought

not to be” “imposed.”

The Star Chamber

“In the early seventeenth century, the levying of

fines became entangled in the constitutional and

political struggles between the king and his

parliamentary critics.” Schwoerer, Declaration 91.

When, from 1629 to 1640, Charles I sought to govern

without convening Parliament, the absence of

Parliamentary appropriations made finding new

ways of raising revenue essential. Accordingly, “the

King’s financial advisers devised” “expedients of a

novel kind” “to take advantage of the law’s

technicalities” to benefit the public fisc. J.R. Tanner,

English Constitutional Conflicts of the Seventeenth

Century 1603-1689 74 (1971 ed.). The machinery of

criminal justice—and the High Court of Star

Chamber, in particular12—was a useful means to

that end.

The Star Chamber “impos[ed] such fines as

should supply the king with a considerable revenue,

in the absence of parliamentary grants.” 4 Henry

Walter, A History of England 135 (1834); see Roger

Lockyer, The Early Stuarts: A Political History of

England, 1603-1642 260 (1989) (observing that “the

impetus behind [a] spate of prosecutions in the 1630s

was financial”).

“The proponents of the common law sought to

apply the principle of Magna Charta to fines imposed

by the court[.]” Schwoerer, Declaration 91. A 1615

decision reported by Coke—Godfrey’s Case, 11 Co.

Rep. 42a, 43a-44a, 77 Eng. Rep. 1199, 1202 (K.B.

1615)—had held that the “reasonableness of [a] Fine

shall be adjudged by the Justices; and if it appears to

them to be to be excessive, it is against Law, and

shall not bind; for excessus in re qualibet jure

12 As a prerogative court, the Star Chamber was consid-

erably less independent from the Crown than the common

law courts were.

reprobatur communi”13 and that “[a]n excessive Fine

at the Will of the Lord, shall be said oppression of

the people.”

Yet the Star Chamber disregarded such

limitations and “imposed heavy fines”—particularly

“on the king’s enemies[.]” Schwoerer, Declaration 91.

William Hudson’s Treatise on The Court of Star

Chamber, written circa 1635, observes that in earlier

years, the fines imposed by that court were “trenched

not to the destruction of the offender’s estate and

utter ruin of him and his posterity as now they do,

but to his correction and amendment, the clergy’s

song being of mercy[.]” William Hudson, A Treatise

on The Court of Star Chamber (1635), reprinted in 2

Francis Hargrave, Collectanea Juridica (1791).

Similarly, a tract published in 1637 contrasted

the contemporary practices of the Star Chamber with

earlier practices under John Whitgift (Archbishop of

Canterbury from 1583 until 1604), noting that

“Archbishop Whitgift did constantly in this Court

maintain the liberty of the Free Charter that none

ought to be fined but salvo contenimento. He seldom

gave any sentence but therein did mitigate in

something the acrimony of those that spake before

him[.]” A Discourse Concerning the High Court of

Star Chamber (1637), reprinted in The Star Chamber

4, 10 (John Southerden Burn ed. 1870).

During an impeachment trial in the Irish House

of Lords in March 1641, one advocate declared:

“[T]hough Magna Charta be so sacred for Antiquity;

though its Confirmation be strengthened by Oath,

13 Lit. “Excess in any thing is reprehended by common

law.” 2 John Bouvier, A Law Dictionary 179 (15th ed.

1890).

though it be the proper Dictionary that expounds

meum and tuum,[14] and assigns every Subject his

Birthright, it only survives in the Rolls, but is

miserably rent and torn in the Practice. These

Words, Salvo Contenemento, live in the Rolls, but

they are dead in the Star-Chamber.” Impeachment of

Sir Richard Bolton, 4 How. St. Tr. 51, 53 (Parl. (Ire.)

1641) (argument).

The Star Chamber would be remembered as a

cautionary tale of the danger that inheres when

legitimate penological interests are warped and

corrupted by financial self-interest: “[T]he strong

interest of the court in these fines … had a tendency

to aggravate the punishment[.]” 2 Henry Hallam,

The Constitutional History of England From the

Accession of Henry VII to the Death of George II 49

(2d. ed. 1829). As Hallam put it, “those who inflicted

the punishment reaped the gain, and sat, like

famished birds of prey, with keen eyes and bended

talons, eager to supply for a moment, by some

wretch’s ruin, the craving emptiness of the

exchequer”—“regardless of the provision of the Great

Charter, that no man shall be amerced even to the

full extent of his means[.]” Id. at 47.

In July 1641, the Star Chamber’s myriad abuses

“brought that institution to an end at the hands of

the Long Parliament[.]” Jones v. SEC, 298 U.S. 1, 28

(1936). But the Star Chamber’s final years would live

on in the legal and popular imagination as a

uniquely unconstitutional moment—a clarifying,

galvanizing, paradigm example of what no court

should ever do.

14 Lit. “mine” and “yours.”

The Bill of Rights of 1689

The right to freedom from excessive fines was

again tested in the years leading up to the Glorious

Revolution, when further abuses in the assessment

of fines took place. See Schwoerer, Declaration 91. In

the decades following the Star Chamber’s abolition,

some common law courts had recognized the

applicability of Magna Carta’s amercement

provisions to fines imposed by courts. See, e.g.,

Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994

(C.P. 1677) (North, C.J.) (“In cases of fines for

criminal matters, a man is to be fined by Magna

Charta with a salvo contenemento suo; and no fine is

to be imposed greater than he is able to pay[.]”).

But other judges—including the infamous George

Jeffreys—held “that Magna Carta did not apply to

fines for offenses against the Crown.” BrowningFerris, 492 U.S. at 290 (O’Connor, J., concurring in

part and dissenting in part). For example, in John

Hampden’s Case, 9 How. St. Tr. 1054 (K.B. 1684),

Jeffreys flatly rejected the defendant’s argument

that, per Magna Carta, “there should be a Salvo

Contenemento in all fines[.]” Id. at 1124. As a purely

historical and technical matter, the position Jeffreys

advanced in John Hampden’s Case was not wholly

unsupportable. Historically, the terms “fines” and

“amercements” had indeed referred to different forms

of sanctions. See, e.g., John Fox, Contempt of Court

118-19 (1927) (discussing this distinction). But

though fines and amercements had distinct historical

antecedents, they served fundamentally similar

purposes—and, by the seventeenth and eighteenth

centuries, the terms were often used interchangeably

in common parlance. See Browning-Ferris, 492 U.S.

at 290-91 (O’Connor, J., concurring in part and

dissenting in part); Calvin R. Massey, The Excessive

Fines Clause and Punitive Damages: Some Lessons

from History, 40 Vand. L. Rev. 1233, 1264 (1987); 4

Blackstone, Commentaries *371-73 (identifying

Magna Carta’s amercement provisions as regulating

“[t]he reasonableness of fines in criminal cases”).

By applying an unduly narrow, technical reading

to Magna Carta in John Hampden’s Case, Jeffreys

had effectively allowed an exception to swallow the

rule—and violated the very principles for which

Magna Carta had come to be seen to stand. See, e.g.,

4 John Campbell, Lives of the Lord Chancellors and

Keepers of the Great Seal of England 412 (1847)

(characterizing

Jeffreys’

rejection

the

proportionality and salvo contenemento principles for

judge-imposed fines as having “pervert[ed] the law”;

noting that John Hampden, a “young gentleman”

who “was only heir apparent to a moderate estate,

and not in possession of any property,” “was

sentenced to pay a fine of 40,000l.” “for a trifling

misdemeanour”).

Moreover, decisions such as John Hampden’s

Case had disastrous practical consequences because

“English courts during the reigns of Charles II and

James II took advantage of their newly acquired

power and imposed ruinous fines on wrongdoers and

critics of the Crown.” Browning-Ferris, 492 U.S. at

290 (O’Connor, J., concurring in part and dissenting

in part). By the mid-1680s, “the use of fines ‘became

even more excessive and partisan,’ and some

opponents of the King were forced to remain in

prison because they could not pay the huge monetary

penalties that had been assessed.” Browning-Ferris,

492 U.S. at 267 (quotation omitted).

Initial attempts at Parliamentary reform had

been unavailing. In 1680, a “Bill for the relief of the

Subject against arbitrary Fines” was introduced in

the House of Commons. See 8 Debates of the House of

Commons: From the Year 1667 to the Year 1694 226

(Anchitell Grey ed. 1763). During the debate on the

bill, one member observed that “[t]he Fines imposed

by Magna Charta, and at Common Law, are with a

salvo contenemento.” Id. at 226. Another member

recalled a case in which a man “was fined a thousand

Marks, and was not worth a thousand Shillings,” and

suggested that “[w]hen the Judges become as great

Malefactors as other men, there must be some

remedy.” Id. at 227. He continued, “[i]f the Judges

had fined men according to Magna Charta, with

salvo contenemento, there had been no need of this

Bill.” Id. Another member emphasized the

importance of “know[ing] the ability of the Person”

subjected to fines and observed, “[w]e have had

excessive Fines imposed by the Judges.” Id. at 228.

David Hume, writing in the 18th century,

described the abusive nature of the penalties

imposed during the 1680s. In one case in 1682,

“enormous damages to the amount of 100,000 pounds

were decreed.” 8 David Hume, The History of

England from the Invasion of Julius Caesar to the

Revolution in 1688 178 (1782). This, Hume

explained, was unlawful: “By the law of England,

ratified in the great charter, no fines or damages

ought to extend to the total ruin of a criminal.” Id.

A tract published in 1689 observed that “severe

fines” had been imposed, and suggested that “the

generality of people … did much complain” and some

had “groaned under extravagant Summs, imposed

contrary to Magna Charta’s salvo contenimento, i.e.,

saving to them their livelihoods[.]” Anon., A Letter to

a Gentleman at Brussels, Containing an Account of

the Causes of the Peoples Revolt from the Crown 6-7

(1689).

The “conflict between Parliament and the Crown

culminat[ed] in the Glorious Revolution of 1688 and

the English Bill of Rights of 1689.” Powell v.

McCormack, 395 U.S. 486, 502 (1969). “After James

II fled England … the House of Commons, in an

attempt to end the crisis precipitated by the vacation

of the throne, appointed a committee to draft articles

concerning essential laws and liberties that would be

presented to William of Orange.” Browning-Ferris,

492 U.S. at 290-91 (O’Connor, J., concurring in part

and dissenting in part).

The Declaration of Rights of 1688 was “[a]

distinct and solemn assertion of the fundamental

principles of the constitution and of the ancient

franchises of the English nation[.]” Thomas Pitt

Taswell-Langmead, English Constitutional History:

From the Teutonic Conquest to the Present Time 501

(10th ed., 1946). The document included “a recital of

all the illegal and arbitrary acts committed by James

II” and “an emphatic assertion, nearly following the

words of the previous recital, that all such

enumerated acts are illegal[.]” Id. Having recited,

inter alia, that “excessive fines have been imposed,”

the Declaration provides “[t]hat excessive Baile

ought not to be required, nor excessive Fines

imposed, nor cruell and unusuall Punishments

inflicted.” Decl. of Rights of 1688. Shortly thereafter,

Parliament enacted the Declaration by statute as the

Bill of Rights of 1689, further entrenching a set of

“undoubted rights and liberties[.]” 1 Wm. & Mary, 2d

Sess., ch. 2, 9 Stat. at Large 67, 69 (1764 ed.).15

Although the Glorious Revolution represented a

period

significant

constitutional

change,

Parliamentary reformers characterized much of their

work as restoring ancient rights and privileges. See,

e.g., John Phillip Reid, The Ancient Constitution and

the Origins of Anglo-American Liberty 99-103 (2005).

Two leading cases, decided around the time the

English Bill of Rights was framed, illustrate how

that document’s provision that “excessive fines”

“ought not to be” “imposed” was understood at the

time of its enactment. First, scholars and members of

this Court have suggested that the highly publicized

trial and punishment of the Anglican cleric and

perjurer Titus Oates16 may help to illuminate

contemporary understandings of the protections set

forth in the English Bill of Rights. See, e.g.,

15 The events associated with the Glorious Revolution in

Scotland are also instructive. When, in April 1689, the

Convention of Estates of Scotland voted to remove King

James from the throne of Scotland, it declared that he

had “Invade[d] the Fundamental Constitution of this

Kingdom, and Altered it from a Legal Limited Monarchy,

to an Arbitrary Despotick Power” by, among other things,

“imposing Exorbitant Fines, to the Value of the Parties

Estates, extracting extravagant Bail; and disposing Fines

and Forfeitures before any Process or Conviction.” The

Declaration of the Estates of the Kingdom of Scotland 1-2

(1689). Accordingly, it was declared “[t]hat the imposing

of extraordinary Fines, the exacting of exorbitant Bail,

and the disposing of Fines and Forfeitures, before Sentence, are contrary to Law.” Id. at 4. See also Claim of

Right Act 1689, Wm. & Mary c. 28 (Scot.).

16 See John H. Langbein, The Origins of Adversary

Criminal Trial 69-73 (2003) (discussing Oates’ perjury

and the notorious “Popish Plot”) [Langbein, Origins].

Harmelin v. Michigan, 501 U.S. 957, 969-70 (1991)

(plurality); Stinneford, Rethinking 932-38.

In 1685, Judge Jeffreys and his colleagues on the

King’s Bench had sentenced Oates to a fine of 2,000

marks, life imprisonment, whippings, pilloring, and

defrockment. Id. at 933 (quoting Second Trial of

Titus Oates, 10 How. St. Tr. 1227, 1315-17 (K.B.

1685)). “[R]epresentatives from the House of

Commons asserted that the House had Oates’s case

in mind when it drafted the Bill of Rights[.]” Id. at

933 (citing 10 H.C. Jour. 247 (1689)). In 1689, Oates

challenged his punishments as cruel and illegal, and

his fine as excessive. Id. In a writ of error to the

House of Lords filed on Oates’ behalf, the

excessiveness of the fine imposed on Oates was

characterized as follows:

4. Exception. Fined 1,000 marks in each

judgment, and committed in execution

for the fines aforesaid; which fines are

excessive, twice as much as the

Defendant was worth, and therefore

against Magna Charta, by which all

fines ought to be with a salvo

contenimento.

Petition of Titus Oates, Rex v. Oates, reprinted in 1

The Manuscripts of the House of Lords, 1689-1690 81

(1889 ed.).

Oates’ petition was rejected by the House of

Lords by a vote of 35 to 22, id. at 80, but several

members dissented on the ground that the sentence

was “contrary to the declaration … that excessive

bail ought not to be required, nor excessive fines

imposed, nor cruel nor unusual punishments

inflicted.” 10 How. St. Tr. at 1325. The House of

Commons aligned itself with the dissenting Lords:

“On the 2d of July, A bill was brought into the House

of Commons to reverse the two judgments against

Oates, it was passed and carried up to the Lords on

the 6th[.]” Id. at 1329. Oates was pardoned and

released from prison. Langbein, Origins 72.

A second late seventeenth century decision—The

Case of William Earl of Devonshire, 11 How. St. Tr.

1353 (Parl. 1689)—further clarifies the sort of factors

that could make a fine excessive. See, e.g., Weems v.

United States, 217 U.S. 349, 375-76 (1910)

(discussing the case). The petitioner, Lord

Devonshire, “was fined £30,000 for an assault and

battery[.]” Id. at 376. “[T]he House of Lords, in

reviewing the case, took the opinion of the law Lords,

and decided that the fine ‘was excessive and

exorbitant, against Magna Charta, the common right

of the subject, and the law of the land.’” Id.

(quotation omitted). The case was decided just

months after the English Bill of Rights had been

enacted.

In Bajakajian, this Court suggested that the

unlawful nature of the fines imposed in cases such as

Devonshire was “described contemporaneously only

in the most general terms.” 524 U.S. at 335. But

although the opinion issued in Devonshire did not

specify exactly what was meant by “excessive and

exorbitant, against Magna Charta, the common right

of the subject, and the law of the land,” the argument

that Devonshire’s advocate, Henry Booth (Lord

Delamere),17 presented on Devonshire’s behalf

clarifies the grounds on which the fine was perceived

to be unlawful. See The Works of the Right

Honourable Henry late L. Delamer[e], and Earl of

Warrington 563-82 (1694).18

In making the case for “[t]he Excessiveness of the

Fine,” id. at 565, Delamere began by invoking the

nation’s experience under the Star Chamber: “The

Court of Starchamber was taken away, because of

the unmeasurable Fines which it impos’d, which

alone was a plain and direct prohibition for any other

court to do the like, for otherwise the Mischief

remain’d[.]” Id. at 574. He observed that “those great

Fines, imposed in that Court, were inconsistent with

the Law of England, which is a Law of Mercy, and

concludes every Fine which is left at discretion, with

Salvo Contenimento.” Id. “If the Fines imposed in the

Starchamber were an intolerable Burden to the

Subject, and the means to introduce an Arbitrary

Power and Government, as [the statute abolishing

the Star Chamber] recites, the like proceeding in the

King’s Bench can be no less grievous, and must

produce the same Evil.” Id. at 574-75. “Laws that are

grounded upon the ancient Principles of the

17 Delamere served alongside Devonshire on the “rights

committee” in the House of Lords, which played an

important role in drafting and revising the English

Declaration of Rights. Schwoerer, Declaration 237-41,

306-07. John Hampden—whose argument that Magna

Carta applied to fines had been rejected by Judge Jeffreys

in 1684—served on a similar committee in the House of

Commons. Id. at 91.

18 See also 11 How. St. Tr. at 1353-66 (reproducing

Delamere’s argument to the Lords in this “remarkable

Case”).

Government cannot cease, because the Reason of

them will ever continue[.]” Id. at 575.

Magna Carta’s provisions, Delamere explained,

served a critical purpose: “[T]he Judges cannot

impose a greater Fine than what the Party may be

capable of paying immediately into Court: but if the

Judges may commit the Party to Prison till the Fine

be paid, and withal set so great a Fine as is

impossible for the Party to pay into Court, then it

will depend upon the Judges pleasure, whether he

shall ever have his Liberty, because the Fine may be

such as he shall never be able to pay: And thus every

Man’s Liberty is wrested out of the dispose of the

Law, and is stuck under the Girdle of the Judges.”

Id. at 576-77.

Delamere also alluded to the broader societal and

dignitary interests that were at play: “Because the

Nation has an Interest in the Person of every

particular Subject, for every Man, either one way or

other, is useful and serviceable in his Generation,

but by these intolerable Fines the Nation will

frequently lose a Member, and the Person that is

Fin’d shall not only be disabled from doing his Part

in the Common-wealth, but also he and his Family

will become a Burden to the Land, especially if he be

a man of no great Estate, for the excessive Charge

that attends a Confinement will quickly consume all

that he has, and then he and his Family must live

upon Charity.[19] And thus the poor man will be

doubly punish’d, first, to wear out his days in

perpetual Imprisonment; and secondly, to see

Himself and Family brought to a Morsel of Bread.”

Id. at 577.20

The Lords agreed with Delamere, and held the

£30,000 fine to be “excessive and exorbitant, against

Magna Charta, the common right of the subject, and

the law of the land[.]” 11 How. St. Tr. at 1372.

Together, the two famous cases of Oates and

Devonshire shed considerable light on the ancient

principles that the English Bill of Rights’

proscription of “excessive fines” was thought to have

reaffirmed.

Following the Bill of Rights, the right to freedom

from excessive fines was settled law. Consider, for

example, the description of the rules governing

monetary punishments set forth in the noted jurist

Sollom Emlyn’s preface to the 1730 edition of State

19 Cf. Cesare Beccaria, On Crimes and Punishments and

Other Writings 53 (Richard Bellamy ed., Richard Davies

trans., 1995) (1764) (observing that “fines ... take bread

from the innocent when taking it from the villains”);

Walter J. Baldwin, Punishment Without Crime; or Imprisonment for Debt 44 (1813) (“it is the spirit of the

Constitution not to punish ‘fault,’ or even ‘crime’ itself,

but ‘according to its degree, or in proportion to its heinousness’ and therefore, as neither debt nor inability to

pay debt is in any ‘degree heinous,’ it is, we conceive, in

direct opposition to this spirit to inflict”).

20 Delamere also argued that the amount of the fine was

greater than other fines previously imposed, and that the

proceedings “will make ... the government look very rigid

and severe,” which “will set [the people] upon their

guard.” Id. at 578.

Trials. See Sollom Emlyn, Preface, in A Complete

Collection of State Trials (1730 ed.). Emlyn

emphasizes that the judge, “though he be intrusted

with so great power, yet he is not at liberty to do as

he lists, and inflict what arbitrary Punishments he

pleases; due regard is to be had to the Quality and

Degree, to the Estate and Circumstances of the

Offender, and to the greatness or smallness of the

Offence[.]” Id. at x. This was important because “that

Fine, which would be a mere trifle to one man, may

be the utter ruin and undoing of another[.]” Id.

Moreover, failure to abide by these precepts would

undermine the proportionality principle as well: “If

no Measures were to be observed in these

discretionary Punishments, a Man who is guilty of a

Misdemeanor might be in a worse Condition than if

he had committed a capital Crime” because “he

might be exposed to an indefinite and perpetual

Imprisonment, a Punishment not at all favour’d by

Law, as being worse than death itself[.]” Id.21

Blackstone’s observations are also instructive.

After noting that “[t]he reasonableness of fines has

also been usually regulated by the determination of

magna

carta

concerning

amercements

for

misbehavior in matters of civil right,” 4 Blackstone,

Commentaries *372, Blackstone recites the language

of Magna Carta and describes that the law requires

“that no man shall have a larger amercement

imposed upon him, than his circumstances or

personal estate will bear: saving to the landholder

his contenement, or land; to the trader his

21 See also, e.g., Rex v. Bennett, 1 Strange 101, 93 Eng.

Rep. 412, 413 (K.B. 1718) (“The fine here will be salvo

contenemento, according to Magna Charta, and the Bill of

Rights.”) (argument).

merchandize; and to the countryman his wainage, or

team and instruments of husbandry.” Id. Blackstone

elaborates:

[T]he ancient practice was to enquire by

a jury, when a fine was imposed upon

any man, quantum inde regi dare valeat

per annum, salva sustentatione sua, et

uxoris, et liberorum suorum.[22] And,

since the disuse of such inquest, it is

never usual to assess a larger fine than

a man is able to pay, without touching

the implements of his livelyhood; but to

inflict corporal punishment, or a stated

imprisonment, which is better than an

excessive fine, for that amounts to

imprisonment for life.

Id. at *373; see also id. at *371 (stating that “the

duration and quantity” of “discretionary fines and

discretionary length of imprisonment” “must

frequently vary, from the aggravations or otherwise

of the offence, the quality and condition of the

parties,

and

from

innumerable

other

circumstances”); id. (“[t]he quantum, in particular, of

pecuniary fines neither can, nor ought to be,

ascertained by any invariable law” because “[t]he

value of money itself changes from a thousand

causes; and, at all events, what is ruin to one man’s

fortune, may be matter of indifference to another’s”).

In the 1770s, William Eden (Baron Auckland)

discussed these principles in his treatise, Principles

22 Lit. “How much from thence he be able to pay the

King annually, having besides a maintenance for himself,

his wife and children.” Thomas Tayler, The Law Glossary

347 (1833 ed.).

of Penal Law. After suggesting that “the Bill of

Rights was only declaratory of the old constitutional

privileges,” Eden writes that “[i]t is the usage of the

courts, superinduced on the clause of Magna Charta

relative to civil amercements, never to extend the

fine of any criminal so far, as to take from him the

implements, and means of his profession, and

livelihood; or to deprive his family of their necessary

support.” William Eden (Baron Auckland), Principles

of Penal Law 72-73 (3d ed. 1775).

Joseph Chitty’s early nineteenth century

criminal treatise also presents an extensive

discussion of this rule. Chitty explains that where a

discretionary power to punish is delegated to a court,

“it must not be understood that the power thus

vested in them is a mere arbitrary discretion, which

ignorant or malevolent magistrates would be allowed

with impunity to abuse.” 1 Joseph Chitty, A Practical

Treatise on the Criminal Law 489 (1819 ed.). “Before

the revolution,” Chitty observes, “the court of Starchamber levied the most exorbitant fines upon the

subject in defiance of every principle of law, to enrich

the treasuries of the sovereign.” Id. “[B]y the bill of

rights,” however, “it was specifically enacted, that

excessive fines be not imposed”; “since this provision,

it is never usual to assess a larger fine than the

delinquent is able to pay without touching the means

of his subsistence[.]” Id. at 490.

In short: substantial evidence suggests that

Magna Carta, the common law, and the English Bill

of Rights were understood to require that a just and

lawful monetary penalty (1) be proportionate to the

offense and (2) not destroy a minimum core level of

economic security and subsistence for those against

whom penalties are assessed, determined with

reference to personal circumstances and ability to

pay.

II.

FROM

THE

EARLY

YEARS

AMERICAN HISTORY, FREEDOM FROM

EXCESSIVE FINES WAS RECOGNIZED AS A

FUNDAMENTAL RIGHT

Early American Understandings of

the Right to Freedom from

“Excessive Fines” Were Informed

by the Lessons of History

The fundamental right to freedom from excessive

fines was embraced by the American colonists. The

colonists “looked upon the English Constitution as

their own,” H.D. Hazeltine, The Influence of Magna

Carta on American Constitutional Development, 17

Colum. L. Rev. 1, 23 (1917), and “English law—as

authority, as legitimizing precedent, as embodied

principle, and as the framework of historical

understanding—stood

side

with

Enlightenment rationalism in the minds of the

Revolutionary generation.” Bernard Bailyn, The

Ideological Origins of the American Revolution 31

(1967).

Even before the English Bill of Rights was

enacted, American colonists had sought to claim for

themselves the right to freedom from unreasonable

and oppressive fines. The Pennsylvania Frame of

Government of 1682—one of “the most influential of

the Colonial documents protecting individual rights,”

1 Schwartz, Documentary History 130—provided

“[t]hat all fines shall be moderate, and saving men’s

contenements, merchandize, or wainage.” Penn.

Frame of Gov., Laws Agreed Upon in England, art.

XVIII (1682), reprinted in 1 Schwartz, Documentary

History 132, 141. Likewise, the New York Charter of

Liberties and Privileges of 1683 provided “[t]hat A

ffreeman Shall not be amerced for a small fault, but

after the manner of his fault and for a great fault

after the Greatnesse thereof Saveing to him his

freehold, And a husbandman saveing to him his

Wainage and a merchant likewise saveing to him his

merchandize[.]” N.Y. Charter of Liberties and

Privileges (1683), reprinted in 1 Schwartz,

Documentary History 163, 165.

A few years later, during Maryland’s Protestant

Revolution of 1689—when religious and economic

tensions led to a revolt against the proprietary

government—one stated reason for the rebellion was

“[t]he Imposseinge Exessive fines Contrary to magna

Charta without any respect had to the salvo

Contenemento suo sibi therein Injoyned.” ‘Mariland’s

Grevances Wiy The Have Taken Op Arms’, reprinted

in 8 J. S. Hist. 392, 401 (1942). See also David S.

Lovejoy, The Glorious Revolution in America 288-91

(1987) (discussing the rebellion and its causes).

In 1721, Jeremiah Dummer’s influential work A

Defence of the New-England Charters declared that

“[t]he Subjects Abroad claim the Privilege of Magna

Charta, which says that no Man shall be fin’d above

the Nature of his Offense, and whatever his

Miscarriage be, a Salvo Contenemento suo is to be

observ’d by the Judge.” Jeremiah Dummer, A

Defence of the New-England Charters 16-17 (1721).

By the Founding, documents such as Magna

Carta, the Habeas Corpus Act, and the English Bill

of Rights had long represented “a towering common

law lighthouse of liberty—a beacon by which framing

lawyers in America consciously steered their course.”

Akhil Reed Amar, Sixth Amendment First Principles,

84 Geo. L.J. 641, 663 (1996). Broad acceptance of

common law rights was consistent with the high

esteem in which the leading English expositors of the

law were held. Coke’s “Institutes ‘were read in the

American Colonies by virtually every student of the

law,” Kerry v. Din, 135 S.Ct. 2128, 2133 (2015)

(plurality) (quotation omitted), and Blackstone was

“the preeminent authority on English law for the

founding generation,” District of Columbia v. Heller,

554 U.S. 570, 593-94 (2008) (quotation omitted). The

Founders were also “aware and took account of the

abuses that led to the 1689 Bill of Rights.” BrowningFerris, 492 U.S. at 267.

The landmark Virginia Declaration of Rights of

June 1776 echoed the English Bill of Rights,

providing “[t]hat excessive bail ought not to be

required, nor excessive fines imposed; nor cruel and

unusual punishments inflicted.” Va. Decl. of Rts., § 9.

Section 9 was one of several provisions “borrowed

from England,” Edmund Randolph, Essay on the

Revolutionary History of Virginia (c. 1809-1813),

reprinted in 1 Schwartz, Documentary History 246,

248, in a document that in many respects “was a

restatement of English principles—the principles of

Magna Charta, the Petition of Rights, the

Commonwealth Parliament, and the Revolution of

1688.” Allan Nevins, The American States During

and After the Revolution, 1775-1789 146 (1924).23

Virginia’s Declaration, in turn, influenced the

declarations of rights of other states and, ultimately,

23 Cf. Solem, 463 U.S. at 286 (“use of the language of the

English Bill of Rights” deemed “convincing proof” of intent

“to provide at least the same protection”).

the Bill of Rights itself. By 1787, “[e]ight states …

had state constitutions prohibiting the imposition of

excessive fines”24 and, in 1789, four states—Virginia,

Pennsylvania, New York, and North Carolina—

urged that the Nation’s charter be amended to

include such a provision. 2 Schwartz, Documentary

History 1167. The amendments proposed by the

Virginia Ratifying Convention were particularly

influential. Id. at 762-65.

In light of this history, early decisional law

interpreting the Virginia Declaration of Rights is

particularly instructive. For example, in Jones v.

Commonwealth, 5 Va. (1 Call) 555 (1799), the

Supreme Court of Appeals of Virginia was called

upon to consider whether a fine could be assessed

jointly. At the time, the imposition of fines in

Virginia was governed both by the excessive fines

clause of the Virginia Declaration and by a 1786

statute that implemented the constitutional

provision by requiring that “in every … information

or indictment, the amercement … ought to be

according to the degree of the fault, and saving to the

offender his contenement[.]” 1786 Va. Laws ch. 64, at

42. One member of the Jones court, Judge Spencer

Roane, described the 1786 statute as “founded on the

spirit” of the Declaration’s excessive fines provision.

Id. at 556-57.

In deciding whether a joint fine could lawfully be

imposed, Judge Roane referred to William Hawkins’

Treatise of the Pleas of the Crown, which in turn

relied upon Godfrey’s Case as “establish[ing] the

24 Steven G. Calabresi et. al., State Bills of Rights in

1787 and 1791: What Individual Rights Are Really Deeply

Rooted in American History and Tradition?, 85 S. Cal. L.

Rev. 1451, 1517 (2012).

doctrine … bottomed upon an article of magna

charta, that fines be imposed secundum quantitatem

delicti salvo contenemento[.]” Id.25

Judge Roane further reasoned that a prohibition

on joint fines was “fortified not only by the principles

of natural justice, which forbid that one man should

be punished for the fault of another; but also, by the

clause of the bill of rights prohibiting excessive fines

and the act of 1786 founded on the spirit of it and

providing, that the fine should be according to the

degree of the fault and the estate of the offender.” Id.

at 556-57. See also id. (such a result would be

“unjust and contrary to the spirit of the

constitution”). A second member of the three-judge

panel concurred that the joint fine was unlawful,

reasoning that “it is clear that the makers of the

constitution,

well

the

Legislature

contemplated, that no addition, under any pretext

whatever was to be imposed, upon the offender,

beyond the real measure of his own offence.” See id.

at 557-58 (Carrington, J.).

Other early state decisions also looked to

traditional common law principles. See, e.g.,

Commonwealth v. Morrison, 9 Ky. (2 A.K. Marsh.)

75, 99 (1819) (fine “should bear a just proportion to

the offense committed” and to “the situation,

circumstances and character of the offender”); see

also Spalding v. New York, 45 U.S. 21, 30 (1846)

(argument by counsel that fine “was excessive, and

was a cruel punishment for the offence, for it

imposed an impossibility” and that “[t]he law never

25 Lit. “according to the quantity of the offense, saving

contenement.”

imposes a fine, where it presumes the party can have

nothing to pay”).26

American commentators also drew on the lessons

of history. The 1829 edition of William Rawle’s

treatise characterized the Eighth Amendment as

“protect[ing]” “against all unnecessary severity in the

prosecution of justice,” and looked to the history of

the Stuart period for guidance as to the meaning of

the Excessive Bail Clause. William Rawle, A View of

the Constitution of the United States 130 (2d ed.

1829). Story’s Commentaries similarly drew

connections between the Eighth Amendment and the

English Bill of Rights, explaining that the Eighth

Amendment served “to warn … against” a repeat of

the events that had transpired during “the arbitrary

reigns of some of the Stuarts”—when, among other

things, “[e]normous fines and amercements were …

sometimes imposed[.]” Joseph Story, Commentaries

on the Constitution of the United States 710-11 (1833

ed.). Benjamin Oliver’s 1832 treatise suggests that

imposing “[a] ruinous fine upon an inconsiderable

offence, or otherwise wholly disproportioned to the

magnitude of it” “would be inconsistent with the

spirit” of the Eighth Amendment. Benjamin L.

Oliver, The Rights of an American Citizen 185 (1832).

Oliver further suggests that “[a] man’s farm or stock

in trade, ought never to be made a sacrifice, to the

ruin of himself and the distress of his family, but, if

necessary to make an example, he should rather be

26 The doctrinal basis of this Court’s decision in Spal-

ding is unclear, but the case—involving a state proceeding—predates not only modern incorporation jurisprudence, but the ratification of the Fourteenth Amendment

itself.

imprisoned for a longer period, and a more moderate

fine be imposed.” Id.

Thomas Cooley’s 1868 treatise Constitutional

Limitations—which

was

“influential”27

and

“massively popular”28 in its time—observes that

although “the question what fine shall be imposed is

one addressed to the discretion of the court,” that

discretion is “to be judicially exercised, and it would

be error in law to inflict a punishment clearly

excessive.” Cooley, Constitutional Limitations 328.

Cooley elaborates: “A fine should have some

reference to the party’s ability to pay it.” Id. Cooley

bases this conclusion on Chapter 14 of Magna Carta,

the “merciful spirit” of which “addresses itself to the

criminal courts of the American States through the

[excessive fines] provisions of their constitutions.” Id.

at 328-29. In this regard, Cooley also refers

approvingly to the general rule that “[t]he common

law can never require a fine to the extent of an

offender’s goods and chattels[.]” Id. at 329 (quoting

State v. Danforth, 3 Conn. 112, 116, 117-18 (1819)).

Additionally, the historical record suggests that

at least some colonial and early state courts did, in

practice, consider the individual characteristics of

offenders when determining and remitting fines. See,

e.g., Kathryn Preyer, Penal Measures in the

American Colonies: An Overview, 26 Am. J. Legal

Hist. 326, 350 (1982) (fines “tailored individually to

the particular case” and set such that “it was within

the expectation on the part of the court that it would

27 McDonald v. City of Chicago, 561 U.S. 742, 821 (2010)

(Thomas, J., concurring in part and concurring in the

judgment).

28 Heller, 554 U.S. at 616.

be paid”); Chilton L. Powell, Marriage in Early New

England, 1 New England Q. 323, 333 n.23 (1928)

(noting court records indicating that “amount [of

fines] apparently depend[ed] upon the culprits’

ability to pay”).

In Colonial and Early State History,

the Term “Fines” Was Understood

to Encompass a Broad Range of

Penalties

There is substantial historical evidence that

protection

from

“excessive

fines,”

properly

conceptualized, extends to a variety of different

forms of economic sanctions—including civil

forfeitures. The historical record does not offer a

precise definition for the term “fines.” See BrowningFerris, 492 U.S. at 295 (O’Connor, J., concurring in

part and dissenting in part). What the historical

record does show is that by the eighteenth century,

the term “fine” in colonial America had come to be

understood as encompassing a broad swath of

sanctions. These included penalties payable in cash

and in kind (i.e., forfeitures), and penalties made

payable not only to the sovereign, but to private

parties as well—and not strictly limited to nominally

criminal proceedings.

Historically, the terms “fines” and “forfeitures”

were used interchangeably. Leading dictionaries of

the Founding era suggest that the word “‘fine’ was

understood to include ‘forfeiture’ and vice versa.”

Austin v. United States, 509 U.S. 602, 614 n.7 (1993)

(citing Founding-era sources). Further, many

colonial and early American “statutes referenced

‘fines and forfeitures’ simultaneously when

referencing economic sanctions[.]” Colgan, Reviving

302 & n.136 (citing 1778 Conn. Pub. Acts 485-89;

1776-1777 Del. Laws 354-56 (1777); 1765 Ga. Laws

248-64; 1782 Md. Laws xvii-xviii; 1747 Mass. Acts

237-39; 1780 N.H. Laws 229; 1786 N.J. Laws 344;

1782 N.Y. Laws 479; 1777 N.C. Sess. Laws 208-26;

1771 Pa. Laws 361; 1783 R.I. Pub. Laws 52; 1769

S.C. Acts i-276; 1764 Va. Acts 449-50; 1779 Vt. Acts

& Resolves 64-65). For example, a 1782 Delaware

statute required an offender to “forfeit and pay the

Sum of Three Shillings and Nine-pence,” referring to

the penalty as “the said Fine and Forfeiture.” Id.

(quoting 1782 Del. Laws 4 (1782)).

Similarly, a New York statute “prohibiting

willfully setting fire to the woods dictated that one so

convicted ‘shall forfeit and pay the sum of five

pounds … and for want of effects to pay such fine the

offender or offenders shall be committed” to a period

of imprisonment,” id. (quoting 1785 N.Y. Laws 63),

while a Rhode Island statute prohibited grain millers

from taking an excess toll “upon the Penalty of

forfeiting as a Fine Twelve Pounds for each Offence,”

id. (quoting 1779 R.I. Pub. Laws 20); see also, e.g.,

Hanscomb v. Russell, 77 Mass. 373, 374-75 (1858)

(observing that the term “fine” has a narrow

“technical meaning[ ],” but also recognizing that “the

word ‘fine’ has other meanings; as appears by most of

the dictionaries of our language, where it is defined

not only as a pecuniary punishment, but also as a

forfeiture, a penalty, &c” and concluding that it was

appropriate to interpret the word “fine” to “include

not only one of its technical meanings, but also its

meaning ‘according to the common and approved

usage of the language’” (quotation omitted)).

“Fines” as a category also included economic

sanctions payable to parties other than the

sovereign; indeed, “[f]rom the colonies’ earliest days,

legislatures and courts directed fines to be paid to

the sovereign as well as to a variety of other persons,

a practice which continued post-Revolution and postratification.” Colgan, Reviving 310. As early as 1641,

the Massachusetts Body of Liberties referred to the

imposition of “a proportionable fine to the use of

defendant” as a penalty for civil suits that had been

improperly brought. Mass. Body of Liberties § 37

(1641), reprinted in 1 Schwartz, Documentary

History 71, 76 (emphasis added).

Myriad examples exist in the historical record in

which “fines” were payable to victims and other

nongovernmental entities. See, e.g., 1702 Conn. Pub.

Acts 10-11; 1672 Conn. Pub. Acts 7 (“pay a fine of

One hundred Pounds, to the Parents, Husband, Wife

or Children, or next of kin to the party deceased”);

1787 N.Y. Laws 426 (“forfeit to the prisoner or party

grieved” for refusal to follow writ of habeas corpus);

1787 N.Y. Laws 398 (malicious and vexatious arrests

by sheriff: “forfeit and pay to the party or parties, so

arrested or attached”); 1785-1786 Del. Laws 8 (1786)

(“forfeit treble Damages to the Party grieved for

abuse of duties”); 1785 Pa. Laws 244 (“forfeit to the

prisoner or party grieved”); 1702 N.Y. Laws 49

(“forfeit and pay, to the Party thereby being

grieved”); cf. 1759 R.I. Pub. Laws 80 (fines for fire

distributed “among the Poor most distressed by the

Fire”); see also Colgan, Reviving 302-308 (discussing

additional examples).

“Colonial and state statutes, as well as courts of

the period, also routinely split awards between a

sovereign and individuals.” Id. at 306. A 1766

Delaware statute awarded half of fines assessed

against a public guardian to “the orphan or minor”

injured by the guardian’s neglect. 1700-1769 Del.

Laws 423 (1766). And a 1759 New Hampshire

statute provided for a “fine” for breaking street

lamps, where “all such Fines shall be Applied in this

manner namely, out of the same the owner or owners

of such Lamp or Lamps shall be payed the damages

he she or they have sustained.” 1754 N.H. Laws 73.

In Goodall v. Bullock, Wythe 328, 1798 WL 247

(Va. Ch. 1798), the Virginia High Court of Chancery

further clarified that a “fine” need not be paid to a

sovereign: “[N]ot all fines, but only those inflicted for

offences against the government, were formerly

payable to the king.” Id. at *3. Goodall explained

that “the fine in this case is appropriated to the party

injured, because it is recoverable on the motion, that

is, by the action, of the party injured[.]” Id.

Finally, the historical record is consistent with

the observation, made in Justice O’Connor’s separate

opinion in Browning-Ferris, that the understanding

of the term “fine” would not have been limited to

proceedings labeled “criminal.” In addition to

historical evidence marshalled by Justice O’Connor,

see Browning-Ferris, 492 U.S. at 287-90, 295-97

(O’Connor, J., concurring in part and dissenting in

part), it is noteworthy that, in the Founding era,

both fines and forfeitures were explicitly recoverable

by actions of debt—a nominally civil procedure. See

Colgan, Reviving 319.

In sum, the historical record would support the

conclusion that fines were understood to encompass

other forms of economic sanctions, including civil

forfeitures, thus ensuring that the excessiveness

inquiry be available so as to guard against arbitrary

abuses that Magna Carta and its progeny were

designed to prevent.

CONCLUSION

More than two decades ago, this Court began the

project of “rescu[ing] from obscurity” the Excessive

Fines Clause. Dep’t of Revenue of Montana v. Kurth

Ranch, 511 U.S. 767, 803 n.2 (1994) (Scalia, J.,

dissenting). That project remains ongoing.29 As this

Court continues its work, the unique history of the

Excessive Fines Clause may represent one source of

guidance.

Respectfully submitted,

DAVID SCHULMEISTER*

NICHOLAS M. MCLEAN

CADES SCHUTTE LLP

1000 Bishop Street

Honolulu, HI 96813

(808) 521-9392

dschulmeister@cades.com

*Counsel of Record

Counsel for Amici Curiae

September 10, 2018

29 For example, some courts have subjected forfeitures

of homes and vehicles to particularly searching constitutional review because “in our society, a home and a

vehicle are often essential to one’s life and livelihood.”

Commonwealth v. 1997 Chevrolet & Contents Seized from

Young, 639 Pa. 239, 279, 160 A.3d 153, 177 (2017); see

Bajakajian, 524 U.S. at 340 n.15 (reserving the question

whether “wealth or income are relevant to the proportionality determination”).

APPENDIX—Amici Curiae30

John D. Bessler is Associate Professor at the University of Baltimore School of Law and serves as an

Adjunct Professor of Law at Georgetown University

Law Center. He is the author of nine books, including: Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (2012); The

Death Penalty as Torture: From the Dark Ages to

Abolition (2017); and The Baron and the Marquis:

Liberty, Tyranny, and the Enlightenment Maxim

That Can Remake American Criminal Justice (forthcoming 2018).

Beth A. Colgan is Assistant Professor at UCLA

School of Law and author of The Excessive Fines

Clause: Challenging the Modern Debtors’ Prison, 65

UCLA L. Rev. 2 (2018), Reviving the Excessive Fines

Clause, 102 Cal. L. Rev. 277 (2014), and Fines, Fees,

and Forfeitures, in Reforming Criminal Justice Volume 4: Punishment, Incarceration, and Release

(Erik Luna ed. 2017).

John F. Stinneford is University Term Professor

at the University of Florida Levin College of Law.

His published works include: The Original Meaning

of ‘Cruel’, 105 Geo. L.J. 441 (2017); Rethinking

Proportionality under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899 (2011); and The

Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L.

Rev. 1739 (2008).

Parts of this brief have been drawn from Beth A.

Colgan, Reviving the Excessive Fines Clause, 102 Cal. L.

Rev. 277 (2014), and Nicholas M. McLean, Livelihood,

Ability to Pay, and the Original Meaning of the Excessive

Fines Clause, 40 Hastings Const. L.Q. 833 (2013).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.