*1 STATES. 349 WEEMS UNITED Syllabus. U.S. 217 v. UNITED STATES.
WEEMS PHILIPPINE THE COURT OF ISLANDS. THE TO SUPREME ERROR May 2, 1910. 1,1909. 30,-December November Argued Decided No. 20. of subordinate use may make authority governmental paramount A legal of a distinct the creation instruments, without governmental States Gov- the States and United United of the the case entity as is Philippine the ernment of Islands. need offense public a of Procedure Code Philippine Criminal the Under of the in words exact the information in necessarily be described not so to enable language, concise ordinary and only in but statute charge and the to understand understanding common person a judgment. pronounce court to United States of the official public as a describing the accused charge A falsifying a offense as his and Philippine Islands of the Government Carrington sufficient. held this ease in official document public and 1, distinguished* States, U. S. v. United plain a option notice may its at court that Rule 35 provision but by precedent controlled rule rigid not a is assigned, not error may what time, regardless any at exercisable discretion a confers dis- times; reluctance has less the court other at done been have civil, will act cases; and criminal, than examples prior regard under or secured nature rights constitutional Rule when under are asserted. rights a bill will, Rule under court below, this courts raised Although not court in this first time for the made of error assignment an consider meaning of within unusual is cruel sentence that provision similar Constitution Amendment Eighth rights. bill of Philippine precept aas regarded bew'll Amendment Eighth interpreting In pro- graduated be should crime punishment justice offense. portioned Constitution from taken rights Philippine bill provision A so held meaning, and the same have must States United must punishments unusual cruel prohibiting provision been. has Amendment Eighth as the interpreted prohibited unusual constitutes What no case has exactly defined been has Amendment Eighth definition. exhaustive for an calling court in this occurred heretofore TERM, 1909. OCTOBER
Syllabus. 217 U.S. constitutional, statutory and both enacted to legislation, While evils, language necessarily is not general its so existing con- remedy *2 application wider than to capable be the may it mischief fined and giving it birth. progressive prohibit is and does not merely Amendment Eighth 1787, known in punishments unusual 1689 and cruel and but
the public opinion as becomes meaning enlightened may acquire wider provision in the Philippine bill justice, and by humane a.similar imprisonment with long continued accessories dis- rights applies to offense. proportionate may oppose legislature its to that of the judiciary power the
While punishment expediency, their as to defining crimes and it is the legislature whether the judiciary to determine has con- duty of the and in prohibition respect that and for a constitutional travened . superior is judiciary of the that of purpose power the the legislature. of this court to declare a statute of the power within the Penal
It is punishment fixing its void as defining crime and violative of Code rights Philippine prohibiting bill of cruel and provision the punishment. unusual punishment is cruel and determining whether a unusual as fixed
In Commission, will punish- this court consider Philippine the by the parts States, in other of the or similar crimes United of the same ment power exhibiting difference between unrestrained and the spirit of constitutional limitations under the formed to exercised justice. establish the court penalties unites all the cannot separate the statute
Where clear that the union separable, if unless it is was not them even made penalties in this case held that the imperative.by legislature; the and accessories, under temporal, principal and art. 56 of cadena independent are not Philippine Islands óf Penal Code each other, might impose minimum which the court is sentence cruel
Where bill prohibition rights, within the of a the fault unusual is in sentence, if there is no not in the law and law under other duty can imposed be of the court to sentence declare void. the law any imposed except under law sentence cannot be that declared
Where case cannot be or void the for new sen- unconstitutional remanded reyersed with judgment must directions to tence dismiss but the n proceedings. 56 of the Penal Code Philippine the court declared In this § case WEEMS v. 'UNITED STATES. S; Argument U. for Plaintiff in Error.
Islands and pronounced a sentence thereunder, void ás violating the provision in the Philippine rights bill of contained in 5 of the act § 1, of "July 1902, 1369, e. 32 Stat. against the imposition of ex- cessive fines of cruel punishment, infliction and unusual so far being prescribed for an offense an officer Govern- ment of making false public entries in records payments as to of 616 n pesos; punishment being a 4,000 fine of pesos, and cadena tem- poral of over years twelve accessories, such accessories includ- ing the carrying chains, deprivation of rights civil during of. imprisonment perpetual thereafter disqualification enjoy political rights, office, etc., hold and subjection besides to sur-
veillance. Amendment, The history of adoption Eighth to the Consti- tution of the United States and cases involving constitutional pro- hibitions against excessive fines and unusual reviewed and opinion discussed "the court and the dissenting opinion. *3 facts,
The which involve legality of 56 of the Penal § Code of the Islands, Philippine and a sentence thereunder, un- der the against cruel guarantees and unusual punishments of the bill of rights the Philippine Islands as expressed 1, act July 1902, are stated in the opinion.
A.Mr. S. Worthington for plaintiff error: If Weems awas official of public any Government, it was the government of the Philippine Islands, and not the United Government. States See 8, acts 1902, March 32 54; Stat. July 1, 1902, 32 691, Stat. in which in a great variety of ways they distinguish between the Government of the United States government of the Philippine Islands, especially in 4, 53, 67, 71, 74 and 76-83. §§
The same distinction is maintained the Coinage Act of 2, 1903, 32 952; March Stat. in the legislation of the island government. 3395, See 3399, 3402, 1366 and 2570, §§' Acts of the Phil. Comm. Comp. objection
This
does not relate to a
matter
form, but is
substantial.
v.
Carrington
Stdtes,
United
208
S. U.
1. The
any statement
omission
record the defendant
TERM,
OCTOBER
1909.
352
Argument
Plaintiff in
Error.
217 U. S.
is another
at
trial
fatal defect. Certainly
was present
than an inference from
more
of an
something
opinion
ap-
to show that a
accused of
required
court
a
person
pellate
crime,
may
term of
long
imprisonment,
punished
at his trial. His
was essential to
presence
present
271,
could
be waived. 1 Bish.
valid trial and
Cr. Pro.
Utah,
v.
In O’Neil U. majority to consider because it was not question, court .refused error, and because the Amendment has Eighth assigned held not to to the States; been but see dissents always1 apply Field, Harlan and Brewer. In Waters-Pierce Oil Justices Ill, Texas, may was held that a fine be so Co. as to amount without due taking unreasonable property States, In Paraíso v. S. of law. United 207 U. process but was not decided. arose question number, on this are few in but see question Adjudications Co., Texas, A. R. 153,174,175. v. G. H. & S, State of the Constitution of all the United provisions While to criminal have not been ex- relating proceedings, States to the certain of the Consti- tended Philippines provisions have been made Islands tution applicable Philippine 1,1902, of July the act including under prohibition against bail and fines and cruel and excessive unusual punishment. of the act is the same as that of the language Eighth *4 Amendment, the word is used except “punishment” 5, Commonwealth, of Pervear v. instead “punishments.” 475; Kemmler’s v. Flem- Case, 436; 136 U. S. Howard Wall. 126, 135, 191 S. do not affect the ease. ing, present U. VIII, limitations on As to under Amendment punishment 661, Lim., Proc., see ed.: Maxwell’s Cooley’s Const. 7th Crim. p. Nebraska, in State, 881; Charles v. 27 cited with approval Frazier, 229, Driver, 16 D. C. v. v. State Stoutenburg App. v. UNITED STATES. WEEMS 353 Argument for in Plaintiff Error. 423, in which a 78 N. C. was held punishment unusual because excessive; In it, it was the court citing case of Lord Devon- shire, Trials, 1354, 11 State in which the House of Lords held £30,000 fine exorbitant, that a of excessive and against Charta, and the common of the Magna right and the subject State, laws of the land. Hobbs v. E. See,also 1019, 32 N. Rep. Co., Wisconsin, and Johnson v. Waukesha 64 281, 288.
Penalties must be fixed with regard the offense and can- not all be thrown in .together, small, under the large same measure Matter punishment. Frasee, 63 Michigan, 397, v. 10, and see 76 Murray, People Michigan, reversing errors, in trial, the case for at the judgment and comment- a sentence ing severity fifty upon, years being violation of a of the state constitution clause un- prohibiting Whitaker, usual In v. 48 State La. Ann. 527 a punishments. was held void under a constitutional judgment provision Amendment, identical with the because it Eighth sentenced for 2,160 days the relators to default of their imprisonment $720. fines cannot in- aggregating legislature paying a for flict death misde- punishment simple penalty Kincaid, Arkansas, 502; v. Martin meanor. 55 v. Thomas . Johnston, 33 S. W. Rep. 306..
. fixes a gives WKére statute minimum but penalty such beyond court a discretion to discretion go or\jury in reason and subordination justice must exercised - and un- to the constitutional provision prohibiting Baker, 3 So. Dak. 2941. usual State punishments. with the dis- interfering would not be justified
Courts ex- very judgment legislature, except cretion *73, How. Pr. cases, (N. Matter Y.) Bayard, treme to the offense as to shock the so disproportionate punishments in a community. given Whether sense course, in some degree, case is cruel unusual depends, inflicted other offenses. See Penal the punishment amended act of States as revised and of the United Laws District of 1088, 4, 1909, Stat. Code Colum- March vol. ccxvii —23 *5 TERM, OCTOBER 1909.
Argument for the United States. 1891, seen, that, bia March from which it will be in many cases, Code, in the Federal or in the either statutes District no term of there is minimum that left to imprisonment, being a A law convicted to be im- requiring court. person not than for less twelve cannot years any be found prisoned country statute in this save for. the most enormous crimes. a not for such offense as Certainly that which petty plain- has been convicted. tiff error under the laws Philippine
'While some crimes are punished unknown severity any in the jurisdiction with United. there this States, even sentence is to the last de- oppressive For illustrations of gree. penalties prescribed Philip- crimes, Code,' for other see 390 of the Penal pines § official embezzling funds can public be public punished severely error, as the plaintiff only -his embezzlement if 125,000 exceeds pesetas.
Even under laws, one Philippine who is of treason guilty of treason or to. misprision overthrow the Gov- conspiracy ernment United States or sedition or perjury may only thirty days and, sent prison only in case except for treason, cannot be for a term longer than from imprisoned years; six to ten and one who any sum, embezzles however cannot be for more than ten great, imprisoned years, and two years. may escape Attorney
Mr. Assistant General Fowler, with whom Mr. M. Henry Hoyt', formerly General, Solicitor brief, was on the States: for United .the fact that the record fails to show that in error plaintiff the trial is not a valid during ground for reversal. present
The third relied in- ground upon, punishment in error is cruel and plaintiff unusual, flicted does not for nor is the ground jurisdiction, afford and unusual within the.meaning expression used 1,1902. of July the act This does question give ground jurisdiction, be- v, WEEMS UNITED STATES. CO cn Ci (cid:127) Argument for the S. United states'. 217 U. time it was for the first mentioned brief of
cause plaintiff *6 Paraíso .v. States,' in error this court. United 207 U. S. 370; Walker, 152; Lawler v. 14 How. 368, 149, v. Illi- Spies nois, 131, .181; 123 Brooks v. 124 Missouri, Ü. S. S. 394; U. Morrison v.’ Watson, Ill, 115; 154 U. S. Winona &c. Land v. Minnesota, 540; Co. 159 U. S. v. Oxley Stave Co. JSutler 658; S. Co., 648, Owensboro, 166 U. Citizens’ Bank v. 173 U. S. 636, 643; Home York, Incurables v. New 155, 187 U. S. for v. 157; Co., 491,. 495; Johnson Insurance 187 U. S. Chicago v. Ry. McGuire, 196 S. Hurlbert v. 128; Co. U.- 202 Chicago, 275; Clark, U. S. Osborne v. 204 565; U. S. Serra v. Mortiga, 470; 204 U. S. Arkansas v. SchHerholz; 598; 179 S. v. Carey U. (fee. Co., Houston 150 Ry. 170, 181; U. S. Ansbro v. United States, 695; 78; 159 U. S. Cornell v. Green, 75, Cin- (fee. cinnati Ry. Thiebaud, Co. 615, 177 U. Si 620.
The sentence not a cruel imposed and punish- unusual within of meaning ment that as used expression 1, 1902, of nor July act are the of the provisions Philippine Code, Criminal under which the was sentence pronounced, in contravention of the act. provisions said
The law was one existing Islands at the Philippine States, time their cession to the United and the Philippine charged Commission was the Presided! to by maintain body of laws which regulated the and rights obligations with as little ánd people, change expedient, although has this law been enforced ever by the courts since the Phil- became Phil- States, of the United territory yet ippines Commission has modify not deemed it ippine proper in any fact that they provision respect, notwithstanding have enacted a very extensive criminal code which defines for a of offenses. See provides punishment large variety Phil. Com., 44, Acts of 1026-1052. tit. Compilation pp.
The of cruel and unusual has no' prohibition punishment to a which exceeds only punishment degree application such as is inflicted in other usually jurisdictions punishment same like offense. 1909. TEEM, OCTOBER U. S. States.
Argument United for the records the falsification prohibits which The statute act clause by the not abrogated official public punishment, unusual cruel 1902, prohibiting July if records even such falsify unlawful remains still court severe; the too be regarded provided the punishment that nullity, is a law clause hold will undertake if, will it nor enforcing means is no there where nullity just law is a beyond line draw and unusual. cruel begins the punishment within or unusual is not imposed The rights. bill Philippine meaning, of a amount fixing the guided are courts Philippine offense, whether attending the circumstances penalty Code. 81 of the Penal See or aggravating. extenuating § *7 one. is a moderate imposed fine The im- of term in a long or unusual cruel nothing There is Rights. Bill of used the are words the as prisonment, degradations, and to mutilations rather refers there description The pen- of punishment.' the or duration length to not and for 300 prescribes article cadena temporal, of alty imprisonment of a term offenses, includes ranging of class 28, articles twenty years; day one and years twelve from here years imposed of fifteen the sentence Code; and 96, Penal law. the well within is therefore' words meaning the passed has not court
This Utah, v. 99 'Wilkerson See punishment. unusual and 436. S. Kemmler, Ü. In re 136 130; S.U. as entirely accord courts are state
While that hold of the cases term, majority of meaning such signify the Constitution employed words shock as is so cruel torture, or which amount would as inhuman men; something of reason and conscience 310; Missouri, Williams, v. 88 State implied. barbarous and E. State, v. N. Hobbs 32 894; E. N. State, Rep. 49 v. Miller Becker, v. 51 546; Hun, State Bayard, In re 1019; Rep. 169; Ketchum, 65 Pac..Rep. v. Territory 1018; Rep. N. W. STATES. v. UNITED WEEMS of the Court. .Opinion v. Ver- See O’Neil 591. also 45 N. W. Morris, Rep. People disapproval, without 331, S. quoting 144 U. mont, a very sustaining of Vermont Court of the Supreme opinion a term very long imprison- in the aggregate fine large guar- the constitutional violating as not ment in addition anties. . excessive compared case seems in this
If the punishment legislative power Philippine it is for the offense, with the the law. change for Congress of the court.1 delivered the opinion McKenna
Mr. Justice judgment for review the brings up error This writ of the con- Islands, affirming of the Philippine Court Supreme and official falsifying “public in error viction plaintiff document.” begun, was by which prosecution
In the “complaint,” error, duly “a appointed, charged plaintiff of the Bureau Coast officer disbursing acting qualified Government of the United States and Transportation Guard did, such, Islands,” “corruptly of the Philippine the United there, to deceive and defraud intent, then officials, and its Islands, of the Philippine Government States document, namely, a cash book and official falsify public Islands, Manila,' Philippine the Board captain of the United Guard Transportation Coast Bureau and! Islands,” by him kept Government the Philippine States ' *8 is falsification, which officer of that bureau. disbursing by entering was committed with much alleged particularity, Service House Light out, “as wages employés as paid 1 being Moody Justice justices, Mr. argued before seven This case was having then not Mr. Justice Lurton on account sickness and absent de opinion was died before Mr. Justice Brewer taken his seat. court, the opinion of the Mr. Justice McKenna delivered livered. concurring with Day Mr. Justice, Justice Mr. Justice Chief Harlan 382, post), (p. dissenting opinion him. White Mr. delivered Justice him. concurring Mr. Justice Holmes OCTOBER TERM, 1909.
Opinion of the Court. of the United States Government of the Islands,” Philippine at the light Capul House of.208 pesos, and for like service at the Matabriga Light House 408 pesos, Philippine currency. “ A demurrer filed to the complaint,” which was overruled.
He was convicted, and the following sentence was imposed upon him: “To penalty of fifteen years of Cadena, together with the accessories of section 56 of the Penal Code, and to pay a fine of four thousand pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on ac- count of the nature of the main penalty, and to the costs pay of this cause.”
The judgment and sentence were affirmed by the Supreme Court of the islands.
It is conceded by plaintiff error that some of the questions presented to Supreme Court of the Philippine Islands can- not raised in be this court, as the does record contain evidence. Indeed, plaintiff error confines his discussion one raised point court below and three .to other ques- which, tions, though not to the brought attention of the Su- Court of preme the islands, and not included in the assign- ment errors with the filed application the writ of error are of such it is importance, said, that this court will consider them under the right reserved Rule 35.1 Rule 35. Assignments of Errors. Where an appeal or a writ of error is taken from a District Court or a Circuit Court direct court, under 5 of the § act entitled “An act to establish Circuit Courts of Appeals and to define regulate jurisdiction certain cases the of the courts of the States, United and for other purposes,” approved 3, 1891, March plaintiff in error appellant shall file with the clerk of below, the court petition with his ap for the writ of error or peal, assignment an errors, which shall set out separately par ticularly each error asserted arid intended to urged. writ of error No or appeal shall be until assignment allowed such of errors shall have been filed. When the alleged error is to rejec the admission or to the evidence, the assignment quote of errors shall the full sub tion stance of the evidence rejected. admitted or alleged When the error charge court, the assignment of errors shall set out the *9 ; n -'¡TED
WEEMS STATES.
l;l7 /Opinion S. oi O’. the Court.
These are as error on qu-^tions assigned the argu- here ment are as follows: “ 1. The below court erred in the overruling demurrer to the assignsaen-; complaint, being based the upon fact that-in in plaintiff error is complaint described as the ‘dis- officer of of bursing the-Pureau Coast Guard and Transporta- of tion the United States Government of the Is- Philippine and the cash so in the referred complaint qoqk lands/ ‘of described a book captain.of port Manila, whereas there is no such Philippine body politic Islands/ the ‘United States Government of the 'Philippine Islands.'
“2. The record does not disclose that the in plaintiff error arraigned, was that he pleaded after his complaint demurrer was overruled and he was ‘ordered to to the plead complaint.'
“3. The record does not show plaintiff error was or, tried, when he indeed, was that he present present any at time. court
“4. The of fifteen-years2 imprisonment was a cruel and unusual and, to the. punishment, extent the sen tence, the oelow judgment be reversed on this ground.” should
The assignment second of error was based upon misap fact, and has been abandoned. prehension argument the first assignment érror is support based certain acts of and certain acts Congress of the Commission in which Government of Philippine United the government are States the Islands distinguished. verbis, to toiidem part referred whéther it be instructions given or assignment refused. Such part instructions errors shall form record, transcript printed and be with it. When this is not done court; heard, except request will not be counsel at assigned according disregarded, not to this rule will be but the errors court, option, may plain assigned. its error at notice a plaintiff appellant 2. The error or shall cause the record to be 2, 3, 4, 5, 6, according provisions printed, 9 of Rule 10. §§ States, For this all rules of the Court of the United see Supreme Appendix 210 U. S. TERM, 1909. OCTOBER
Opinion of the Court. *10 of the acts (§ acts 3396 in one of the that And it is urged or to may allegiance be that there recognized it is commission) n 3397) that them,” (§ or “either both treason against authority” or insurrection against “rebellion may there be to over- be a may conspiracy that there (§ 3398) either, “ execution delay hinder or to either or prevent, throw it is cited, which, are Other sections law of either.” any of as an is insular contended, government spoken that States. of the from that United distinguished “entity,” and General, Attorney of the duty, defines 1366, which Section “causes, between distinguishes out, it is especially pointed any or officer which the United States criminal, civil or or causes, civil is a party,” in his official.capacity thereof “ Islands which the of the criminal, government Philippine is a And or officer thereof his any capacity party.” official 1366, is “C” .decisively, urged, by still more it § subdivision be for may is the cause of action Which it that recognized maybe money “belonging that the money, judgment States, that of Philippine to the Government the United is, contended therefore, or some other It Islands province.” that, that of the of the 'United States and the Government that there legal entities, distinct Islands Philippine are, that there other, to one and not to the may be civil obligations other, one liability be and not to'the may governmental must criminal, either against and that civil proceedings, to be a justify judgment. the distinction sufficient recognize these let us see the information To what apply principles, “a describes'Weems, error, pfiblic It plaintiff charges. official the United States Government of the of. Philippine dis- Islands, wit) duly acting and qualified appointed official of the Guard and bursing Transporta- Bureau Coast Is- tion' of. the United States Philippine Government of his lands,” and' advantage it- is charged taking official the United to intend to “deceive and defraud position falsified a Islands,” States Government of the he Philippine In the Gov- public and official document. the same manner v. UNITED STATES. WEEMS Opinion of the Court. U. S. . It is con- the information. is designated throughout ernment ‘United body as the “there is no politic such tended and, it is of the Philippine Government States Islands/” of form. to a matter does not relate objection that the urged, in Car- said, as the involved substantial,” point “It is as officer military S. where a Case, 208 U. rington’s of the govern- as a civil officer States was prosecuted United reversed, this . His conviction the Philippines. ment of an soldier, he was not official that, “as holding court States.” of the United but Philippines raised are expressed that the distinctions
It is true would difficult otherwise necessarily so. It statutes, and authority there is a where paramount for government provide *11 have ex- We instrumentalities. use subordinate making their lesser municipal of the and in States Union amples such lesser divi- flow from and to may rights divisions, statutes Philippine means And the distinction in sions. distinction is that, a that, and, conforming than more no is position official in Weems’ the information.. made clearly Guard of the Bureau of Coast “Disbursing Officer as described of the Government States of the United Transportation in this uncertainty real no There is Islands.” Philippine of discrimination nicety technical and whatever description, be, in now time, one cannot on at insisted been have might of Pro- Code Criminal Philippiné the provisions view in to be described offense a public which cedure, require words necessarily language,” concise “ordinary and of com- a as to enable person in such form statute, “but the court is intended know what understanding xhon further is And it the right.” according judgment pronounce “ nor is insufficient complaint or information No that provided by be affected proceeding or other trial, judgment, can tend does not which form matter of a defect reason merits” defendant right substantial prejudice 10). (§ In 1, point. is not S. States, 208 U. United v.
Carrington OCTOBER TERM, 1809.
Opinion of the Court. 217 U. S. that ease it was attempted to hold Carrington guilty of an offense a civil officer for what he as had done as military (cid:127) officer. he was latter, As he had not committed any offense under the statute. The first assignment error is therefore not sustained. admitted,
It is we seen, have that the questions presented the third and fourth of error assignments were not made in below, but a consideration of courts them is invoked under 35, Rule that court, provides “at its option, may notice a error not assigned.” plain
It is on the other side objected that Paraiso v. United States, 207 U. S. stands the way. But the rule not altogether controlled precedent. It confers a may discretion that be any time, at no exercised matter what may have been done some other time. at It is true we declined to exercise it in States, Paraíso United v. we but exercised v. Wiborg Uni 632, 658; ted States, Clyatt v. United States, 197 U. S. v. 207, 221, and United States, U. 183. It S. may Crawford said, however, that Paraíso United States is more directly as it was concerned with the same applicable, of a crime kind that, in the case at bar, it was contended there as here the amount fine and imprisonment in imposed flicted a cruel unusual punishment. It may be that we sufficiently were not with the impressed importance those saw the circumstances of the case no reason contentions *12 review, our of right to under exercise Rulé 35. As we have al said, rule is rigid one, the not .'a ready and we have less re disregard luctance to prior examples criminal cases than cases, civil and less reluctance to act under it when are rights of asserted are such high character as-to find expression sanction or bill of Constitution rights. And such are rights asserted this case.
The of error assignment is that “A punishment of fifteen years’ was a cruel imprisonment. punishment, unusual and, sentence, extent of the below judgment should on this ground.” reversed Weems convicted, as we
WEEMS v. UNITED STATES. Opinion of the Court. have seen, for the of falsification a public and official docu- ment, by entering therein, as paid out, the sums of 208 and 408 pesos, respectively, as wages to certain of the employes Light House service. In other words, in entering upon his cash book those sums as having been out paid they when were out, paid “truth,” to use language .the statute, was thereby “in perverted the narration of facts.”
A false entry is all that is necessary to constitute the offense. Whether an offender against the statute injures any one by his act or intends to injure any one is not material, the trial court held. The court said: “It is not necessary that there be any fraud nor even the desire to defraud, nor intention of personal gain on of the part person committing it, that a falsification of a public document be punishable; it is sufficient that the one who committed it had the intention pervert truth falsify the document, and it damage might to a result third party.” The court further, the definition of the nature of the offense and the purpose law, said, “in public documents the law takes into consideration not only interests, priyate but also the interests of community,” and.it is its (and endeavor for this a decision of the Supreme Court Spain, delivered in 1873, was quoted) “to protect the interest society strict faithfulness on the part .most of a official in public the administration office intrusted him,” and thereby fulfill the “responsibility the State to the community for the official public under documents the. safeguard State.” And this was to be attempted secured the law in through controversy. It is found of chap- § ter IV Code of Penal Spain. of the section caption is “falsification of official and commercial documents and tele- graphic dispatches.” Article 300 provides as follows: “The penalties cadena temporal 1,250 and fine of 12,500 from shall be pesetas on a ad- imposed who, taking public official of his vantage authority, shall commit a . . . falsification. by perverting the truth in of facts. . . .” the narration other
By code we provisions are-only find that there *13 TERM, 1909. OCTOBER
Opinion of the Court. in sóale higher of than cadena punishment two degre'es tem- cadena death, and perpetua. of cadena poral, n years day from twelve one is twenty years temporal which be 96), served” certain (arts. 28 “shall “penal is And it provided institutions'.” “those .sentenced to cadena shall perpetua cadena labor for temporal the benefit They always carry shall of the chain at the ankle, state. wrists; they shall from be hanging employed the at hard and shall receive no labor, and assistance whatsoever from painful Arts. the institution.” 106. without There are besides accessory imposed, are penalties certain defined to be interdiction; (2) perpetual civil absolute (1) disqualification; during to surveillance life. (3) These subjection are penalties follows. defined as 42. Civil interdiction shall
“Art. deprive person pun- it, he suffers long rights ished- au- parental. . or thority, guardianship person property, participation council, marital authority, family administration of right his own dispose acts property by property, Those cases are which the law ex- excepted inter vivos. its, limits effects. plicitly 43. to the surveillance of the Subjection
“Art. authorities on the following obligations, persons imposes punished. his domicil and fixing giving “1. That notice thereof to authority immediately charge surveillance, his without changé it knowledge allowed being per- mission, authority in of said writing. “ the rules of 2. To observe prescribed. inspection trade, art, some or industry,
“3. To adopt profession, not have known means of own. should he subsistence of his under surveil- “Whenever a person punished placed authorities, notice be given thereof sháll lance the governor general.” and to government absolute is the disqualification penalty perpetual The. office, even held elec- though deprivation popular deprivation be elected to to vote tion, right STATES. t>.UNITED
WEEMS *14 of Court. Opinion TT.S. honors, etc., to and office, acquire the disqualification public loss retirement etc. pay, of are These attacked infringing provision provisions which the infliction of the bill of islands forbids rights punishment. It and unusual must be confessed case, the sentence wonder minds they, and excite to a more considerate adaptation accustomed of crime. In a sense the law in controversy the degree to of degrees. may seems to be One be an offender independent seen, it, as we have he though gain and against nothing injure has, however, It some human nobody. is not indulgence —it Draconian exactly uniformity. it starts with se- .Though a between that and the vere maximum it penalty, penalty yields something extenuating Indeed, circumstances. by arti- Penal is penalty cle 96 declared to be “divisi- Code of its ble,” and term is legal “duration understood dis- three into the three parts forming is, tributed degrees—that minimum, medium, maximum,” and being respectively years and one day from twelve fourteen years and eight months, from fourteen years eight day months and one years and months, four seventeen from seventeen years four and one day twenty years. months The law therefore al- from twelve range years lows a and a day to twenty years, brief the Government its and ventures to say that “the years of fifteen is well sentence within the law.” But the law, is attacked as well as the sentence and what it to be js the law a few will minimum well within words exhibit. The twelve imprisonment years, that, term therefore, for be imposed “perverting must truth” item of single record, though there be no one a public injured, there though it, or fraud no purpose gain be no desire it. Twenty maximum is the years imprisonment, that only can . be in every for truth item perversion of an imposed officer’s be accounts, whatever covered and whatever it time fraud or tends conceal. Between conceals these two possible relation, seem to sentences, have no adaptable or rather TERM, OCTOBER 1909. Opinion of the Court. years for the lowest offense eight possible
in the difference years courts below selected three highest possible, minimum of twelve for the years, day to the to add of two items of expenditure, amounting falsification and 204 And the fine “aecesories” of 408 pesos. sums into view. The fine thousand brought was four must excess also over the minimum. The “aecesories” an pesetas, already defined. We can now have give description we graphic and of the law under im- sentence which it was of Weems’ law, us confine to the minimum degree Let posed. the law that we are most it is with concerned. Its mini- *15 is confinement in a institution for twelve degree penal mum a chain day, one at the ankle wrist of the of- and and years labor, hard and no or fender, painful assistance from friend authority marital or relative, parental rights no rights even in family no council. These participation property, his endure for the term of penalty imprisonment. parts there is no bars other intermission. His parts prison From removed, true, years, are it is after twelve but he chains limitation of his He is liberty. from them to perpetual goes crime, under the shadow of his forever kept kept forever and view the criminal not magistrate, being within voice domicil his without notice to the “au- change giving able immediately surveillance,” of his and- with- thority charge seek,' may He even other writing. out permission other to retrieve his fall from recti- among people, scenes and Even that is taken from him and he is hope subject tude. that, if not so regulations tangible as iron bars tormenting walls, continuity, much their de- oppress stone liberty. No essential circumstance of degradation prive be may cruelty that even the is not It of pain is omitted. a chain day. must bear He is con- night He omitted. as well as labor. What labor painful hard painful demned exact no measure. It must be something mean we have may It may labor. labor than hard hard pressed more for such Such offenses amaze those penalties pain. point WEEMS v. UNITED STATES. Opinion of the Court.
who have formed their
conception
relation of a state to
even its
citizens
offending
from the practice of the American
commonwealths, and believe that it is a
of justice
precept
punishment for crime should be graduated and proportioned
to offense.
' Is this also a
precept
fundamental
law? We say
fundamental
law, for the provision of the
bill of
Philippine
rights,
prohibiting
infliction of cruel and unusual punish-
ment, was taken from the Constitution of the United States
and must have the same meaning. This was decided in Kepner
v. United States,
Opinion of the Court. come to would appreciate, Islands” Philippine of the thought branch every division and “upon observance their he imposed of the Philippines.” government of the infliction which the was rules that prohibited those Among in the It was repeated punishment. and unusual of cruel for the administration 1, 1902, providing July act court islands, and this government civil of the affairs they that President of the instructions and of itof said Islands those prin- to the carry Philippine “intended were be President declared government our ciples of individual for the maintenance of law as rules established act of President and instructions The freedom.” Penal the islands existence in in nominal found Congress mili- been declared having its continuance Spain, Code could not and there may be It tary order. and a determination itsof provisions consideration careful or were repugnant accorded they extent what which had “made law” been and liberty “great principles institution system.” Upon governmental of our the basis before, that con- commission, if not government the courts necessarily came to determination and sideration record. by this presented are has not crueí unusual constitutes What ordinarily the has been said It exactly decided. been barbarous, torture and inhuman something imply terms Massachusetts, 322. Commonwealth,173 McDonald like. “ that the possibility conceded case however, court, The of years term long for a the State prison imprisonment to constitute a to the offense disproportionate sobe might selected cases have Other punishment.” unusual as illustrat- monarchs of the English acts tyrannical certain its prohibi- the extent the clause meaning ing tion. We Congress. little' debate very received provision Mr. Smith 225, that p. Register, Congressional from
find 'nor words cruel and “objected Carolina of South *17 ' 369 STATES. v. UNITED WEEMS Court. Opinion S.U. too indefinite.” being themof import punishment/ unusual clause, saying: adoption opposed Livermore Mr. on of.humanity, deal a great to express seems clause
“The to it;, but as it seems to no objection I have account which necessary. What it I not think it, do meaning no have to be the judges? bail? Who are excessive terms by meant the court lays fines? It by excessive is understood What be is to punishment and unusual No determine. to man, a villains necessary hang to sometimes it is inflicted; ears cut having their and perhaps whipping, deserve often these inflicting from be future, prevented we, in are off; but If mode more lenient cruel? are they because punishments commission from deterring others vice correcting in the legis- very invented, it would be prudent could of it security that some we have until it, but adopt lature neces- making from to be restrained ought not done, we will be of this kind.” declaration any .by laws sary it clause, agreed and was on the put question The majority. a considerable has for an called in this court occurred has case No Commonwealth, 5 v. The In Pervear definition. exhaustive did not apply that decided 475, it was clause Wall. further, and But we went legislation. national but state or cruel or' unusual excessive, nothing we perceive that said labor at hard fifty dollars imprisonment for fine ain which was months, imposed three for correction house license, a tenement without maintaining, for keeping intoxicating liquors. illegal keeping sale illegal for dissent. no one will from which decision A came 130, the clause up S. Utah, 99 U. In Wilkerson “a that provided of Utah A statute consideration. for again suffer death offense should a capital convicted person direct, might court beheaded,” as the or hanged shot, being his execu- to the manner his option “have he should court out The pointed was sustained. statute tion.” murder, pre- usual was an death ccxvii —24 vol. TERM, 190&, OCTOBER
Opinion 217 U. So C~mú, vailed in the Territory lor many years, aad was inflicted by shooting, also that oí mode execution was usual under law. military It was hence concluded that it was not forbid- den by the Constitution the United States as cruel or unusual. court quoted Blackstone as saying that sentence of death was generally executed but hanging, also that circumstances' of terror, pain or disgrace were sometimes superadded. “Cases mentioned author,” the court “ said, are where the person drawn or dragged to place of execution, treason; or where he was alive, disembowelled beheaded and quartered, in high treason. Mention is also made of public dissection in murder and burning alive treason committed by a female.” And it was further said: “ of such Examples legislation the early history of the parent country are given by the annotator of the last edition of Arch- bold’s treatise. Arch. Crim. Pr. PI. (eighth'edition) 548.”
This court’s final commentary was that “Difficulty would attend the effort to define with exactness the extent of the constitutional provision provides that cruel and unusual punishments shall be inflicted; but it is'safe to affirm that punishments torture, such as those mentioned by the com- mentator to, referred and all others in the same line of unnec- essary cruelty, are forbidden by that amendment to the Consti- tution. Cooley, Const.' (4th Lim. ed.) 408; Wharton, Cr. L. (7th ed.), 3405.” § That passage was quoted in In re Kemmler, 136 U. 436, S.
447, and this comment was made: “Punishments are cruel they when involve torture or a lingering death; but the punish ment of death is not cruel, within the meaning that word as used in the Constitution. It implies there in something human and barbarous, and something more than the mere extinguishment of life.” The case was an application habeas corpus and went off aon question of jurisdiction, court holding that the Eighth Amendment did not apply to state legislation. It was not meant in the language we have quoted to give comprehensive definition of cruel and unusual
. WEEMS v. UNITED STATES. S.
217 U. Opinion of the Court. punishment, only but to explain the application of the pro- vision to the punishment of death. In other words, to de- scribe what might make the punishment of death, cruel and unusual, though itself it is not so. It was found as a fact cpurt by the state that death by electricity was more humane than death by hanging.
In O’Neil v. Vermont, 144 U. S. the question was raised but not decided. The reasons given for this were that because it was not as a Federal question assigned as error, and, so far *19 as it arose under the constitution of Vermont, it was not within the province of the Moreover, court to decide. it was said, as a Federal question, it had always ruled been that the Eighth Amendment of the Constitution of the United States not did apply States. Mr. Justice Field, Mr. Justice Harlan and Mr. Justice Brewer were of the opinion that the question was presented, and Mr. Field, Justice construing the clause of the Constitution prohibiting the infliction of cruel and unusual punishments, said, the other two justices con curring, that the inhibition was directed, not only against punishments torture, which inflict “but against all punish which by ments their excessive length or severity are greatly risproportioned to the offenses charged." He said further: “The whole inhibition is against that which is excessive in the required ball or fee imposed, punishment inflicted." writer?-, bui'qnree. The law Story in Ms work on the n ; n ‘TT, nys that ^í)í Constitution,. the provisión “is an r transoms exwt ?. .-(cid:127)*the bill of rights in the framed ' oxpresced revolution <r? -le the view that the pro- 'r:i vision “would .«an ->]Iyunnecessary in a gov- tree : ernment, since ri .iC vrocy possible that any department of a government
such bnoald authorize or justify such atrocious “ He, conduct.” however, observed that it was adopted as an admonition all departments of the national government, to warn them such against violent proceedings has taken place arbitrary England reigns some of the Stuarts." For cites 2 he Elliott/s Debates, 345, and refers to 2 Lloyd’s TERM, 1909. OCTOBER
Opinion of the Court. If Debates, the learned Elliott’s 345. 226; 3 Debates, of the pro- this to confine prohibition meant author such, inflicted as were and punishment penalties vision to Indeed, not sustain him. do Stuarts, his citations Debates, 2in Elliott’s except not mentioned is provision are The other citations already quoted. have from which we Convention, in the Henry Virginia Patrick remarks of Patrick Convention. Pennsylvania Mr. and of Wilson Con- in the there was danger adoption said that Henry Mr. considered a bill of Wilson rights. without stitution from the omitted and had been unnecessary, purposely it was the- Both, indeed, tyranny referred to Constitution. bill England said that Henry people Stuarts. what William, Orange, upon Prince of rights prescribed “The Wilson said that doctrine reign. he should terms from borrowed have been rights of a declaration practice remarkable England on some the conduct people which their gov- and maxims on occasions; but the principles different from those of ours.” widely ernment constituted are like therefore, Wilson, thought and those who It appears, trusted, Wilson, liberty felt sure that could spirit debased, by ideals would be represented, legis- and that its *20 who would take Henry and those believed as he did lation. Their was distrust no chances. predominant political impulse pn and constitutional limitations they of insisted power, more than to surely they its abuse. But intended against a fear of went of the forms of abuse that out register practice the Stuarts. their of a saner Surely, with had jealously power action, than that. were men of They justification practical not it must and beset with vain and sagacious, imagining, cruelty by have coiné to them that there could be exercises of laws other mutila- than those which inflicted bodily pain unlimited, tion. to With a if power legislature great, n give’ criminal character to the of with men, power actions n unlimited fix of terms what imprisonment accompani- they ments of cruelty what more instrument might, potent 373 STATES. v. UNITED
WEEMS
the Court.
of
Opinion
U. S.
n
believed
it was
And
of power?
hands
into
be put
could
motive
This was
cruelty.
tempted
be
might
that power
provi-
intelligent
an
attribute
are to
if we
clause, and
of
intended
was
that
think
we cannot
its advocates
dence
only
prevent
or to
Stuarts,
like
only practices
to prohibit
think
cannot
We
history.
of
repetition
exact
an
other
through
exercised
cruelty being
a coercive
of
possibility
cru-
“coercive
sayWe
overlooked.
was
forms
ordi-
than
considered
to be
more
there
because
elty,”
instrument
an
become
might
Cruelty
laws.
nary criminal
or sinister.
honest
either
for a purpose,
zeal
tyranny;
enacted,
constitutional,
statutory and
both
Legislation,
language
general
its
evils, but
true,
experience
from an
isit
form
confined
necessarily
therefore, be
not,
should
into
brings
changes,
works
Time
taken.
theretofore
had
evil
a principle
Therefore
and purposes.
conditions
new
existence
than the
application
of wider
be capable
must
vital
be
'to
consti-
true of
This is peculiarly
it birth.
gave
which
mischief
designed
enactments,
not ephemeral
They are
tutions.
of Chief
words
are, to use
They
occasions.
meet passing
nearly
immortality
to approach
Marshall, “designed
Justice
is their
future
The
it.”
can approach
institutions
human
tendencies
bad
of good
for events
provision
care and
of a
In the application
made.
be
can
no prophecy
only
be
cannot
contemplation
our
therefore,
constitution,
rule
other
any
Under
may be.
of what
been but
has
what
would
itas
easy
application
asbe
would indeed
constitution
general principles
Its
power.
efficacy
deficient
into
by precedent’
be converted
value
little
have
would
words
declared
Rights
formulas.
lifeless
impotent
recognized.
been
has
And
reality.
be lost
might
developed
have
of the Constitution
vitality
meaning ex-
is an
There
construction.
and restrictive
narrow
against
Missouri, Wall.
State
Cummings
of this
ample
given
laws was
ex post
against
the prohibition
where-
facto
*21
of this court
minority
awhat
than
application
extensive
(cid:127)more
TERM,
OCTOBER
1909.
Opinion of the Court.
217 U.S.
thought had been given in Calder v. Bull,
. There are many illustrations of resistance to narrow con- structions of the grants of power to the National Government. One only need be noticed, and we select it because it was made against a poWer which more than any other is kept present óur minds in visible and effective action. We mean the power over interstate commerce. This power was deduced from the eleven simple words, “to regulate commerce with foreign nations and among the several States.” The judgment which established was pronounced by Chief Justice (Gib- Marshall bons v. Ogden), and reversed a judgment of Chancellor Kent, justified, as' that celebrated jurist supposed, by a legislative practice of years fourteen and fortified by the opinions of men familiar with the discussions which had attended the adop- tion of the .Constitution. Persuaded by such considerations the learned chancellor confidently decided that the Congres- sional power related to “external, internal, commerce,” and adjudged that under an act of the State of .New York, Livingston and Fulton had the exclusive right of using steam- boats all of the navigable waters of the State. The strength of the reasoning was not underrated. It was sup- ported, it was said, “by great names, bynames which have all the titles to consideration that virtue, intelligence and office can bestow.” The narrow construction, however, did not prevail, and the propriety of the arguments upon which it was based questioned. It was said, in effect, that they supported a construction which “would cripple the govern- *22 v. UNITED STATES.
WEEMS 'O',r, Gemios, of the Cauri!. "2J.7 Bient for which it unequal and Benderit was. objects given, declared to be and to which the powers instituted, understood, render it . . .” fairly competent; discussion we need not farther But We general pursue. on conditions which existed when the may rely the Constitu- seen, we have it was the thought tion was As adopted. to indeed, it must come a less trained reflection than
Story, the his, by instituted Consti- government people by that not imitate the conduct of monarchs. arbitrary tution would might, indeed, The abuse of be but not power apprehended, in that it would be manifested or provisions practices would shock the sensibilities of men. in
Cooley, his “Constitutional in Limitations,” apparently between the effect to be ancient struggle given to examples in and the a dread of them these inconsequence enlightened times, is not clear or decisive. He hesitates to advance very definite views and expresses “difficulty determining by what is meant cruel and unusual precisely punishment.” however, was he that says, “any It probable, in declared statute an offense which was punishable at law be way regarded the same common could not as cruel unusual, a constitutional sense.” And he says further “ any statutory new be may punished offense probably extent the mode the com- permitted [italics ours] law for of a similar nature.” mon offenses In cases in the state courts different views of the pro Driver, 427, 423, vision are taken. In State 78 N. C. was and its are so legislation said that administration criminal uniformly that there is seldom for complaint. humane occasion battery In case a of the defendant for sentence assault for five jail his wife was imprisonment county upon security and at the thereof years, expiration give keep years sureties, $500 for five 'the sum peace its judgment cruel and unusual. held To sustain and unusual court said that prohibition against pun erratic against merely ishment was not “intended to warn OCTOBER TERM, 1909. Opinion of the Court.
modes punishment or torture, but applied expressly ‘ ‘ ’ ‘ ” “ bail,’ fines punishments.’ It was also said that earliest application of the provision in England 1689, was in the first year after adoption the bill rights to avoid an excessive pecuniary fine imposed Lord upon Devonshire by the court of King’s (11 Bench Trials, State 1354).” Lord Devonshire was fined thirty thousand pounds for an assault and battery Colonel Culpepper, *23 House of Lords, in reviewing case, took the of opinion law Lords, and decided that the fine “was excessive and exor- bitant, against Magna Charta, the common right subject and the of law the land.” Other cases have given a narrower
construction, feeling constrained by thereto the incidences of history.
In Hobbs State, 32 N. E. Rep. the Supreme Court Indiana expressed the opinion that the provision did not apply to punishment “fine or imprisonment or both, but such as that inflicted'at the whipping post, the pillory, burning at the stake, on breaking the wheel,” etc.
It was further said: “The word, to according modern inter- pretation, does not affect legislation providing imprisonment for life or years for or.the death penalty by hanging elec- trocution. If it did, our laws for the punishment of crime give would no security to the citizen.” That conclusion cer- tainly would not follow and its expression can only be ex- plained by the impatience the court exhibited at the contention in that case, which attacked a sentence of years’ two imprison- ment in the state prison for combining assault, beat and bruise a inman the night time. Indeed the court ventured the inquiry “whether this country, at the close of the nine- teenth century,” the provision was “not obsolete,” as except an admonition to the courts “against the infliction of punish- ment so severe as not to 'fit the crime.’” In other words, that it had to be ceased a restraint upon legislatures and had become an admonition only to the courts not to abuse the dis- cretion which might entrusted them. Other cases might STATES. v: UNITED
WEEMS Court. Opinion S. 217 U. examples backwards looking illustration, some
be cited giving others clause; meaning fix the such provision, character and vital more expansive and it thought possessed States of the United the President it possessed Commission Philippine admonished main- the rule law rights] other “essential [with freedom.” of individual tenance inter- courts in the state cases
An review extended It not make. will we constitutions .their respective preting challenge such was not that there of them of all bemay said of the inhibition consequence to the import presents. consideration as the law under unusual punishments remember Let us legislation. no fellow in American has It form of a different government us from a come to has of imprison- in its excess It is cruel from ours. and genius imprisonment. follows which accompanies ment and that (cid:127) under come Its punishments in its character. It unusual on account both rights, the bill- of condemnation at- those bad would have they And and kind. degree their enactment in Federal found if were they even tributes *24 source. from an alien not taken to our brought been have cases which
Many
the state
sen-
are based
no comment.
require
They
attention
laws.
validity
the constitutional
courts,
not upon
tences
in their
merit
vary
cases
The
other
contentions
seen what
have
consideration.
serious
.We
justification
however,
others,
In
State, supra.
in Hobbs
was
contention
In Com-
inquiry.'
historical
inducement
an
was more
there
had
post
whipping
6 Rand.
v. Wyatt,
monwealth
“bar-
In comparison
was
justified
justified.
castration, etc.,” it
chains,
hanging
of quartering,
barities
latter
court
insignificance.
reduced
easily
cases
Other
but not unusual.”
it “odious
case pronounced
it,
have
more than odiousness
something
have seen
cer-
It is
forbidden punishments.
one of-the
it as
regarded
has been pro-
latter
pillory,
as. odious
tainly
OCTOBER TERM, 1909.
Opinion of the Court.
&,
217 U.
nounced to be within the prohibitory clause. Whipping was
also sustained in Foot v. State,
In Hobbs v. State, supra, and in other cases, prominence is given to the power of the legislature to define crimes and their punishment. We concede the power in most of its exercises. We disclaim the right to assert a judgment against the legislature of the , expediency of the laws or the right to.
oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case our discretion but our legal duty, strictly defined and impera- *25 tive in its direction, is invoked. Then the legislative power is brought to the judgment of a power- superior to it for the STATES. v. UNITED
WEEMS the Court. Opinion of S. 217 U. there of'such power exercise for the proper
instant. And or did the legislature that of all must be a comprehension mis- the of is, a consideration account, into that take could certain subordina- However, there is a remedy. chief and function legislature. to judiciary tion of the fortified presumptions its exercises legislature primary, lightly, be not to interfered and is legality, and right or wisdom propriety. of their conception by any judicial nor ones, constitutional we but limitation, repeat, no have They ex- haveWe judge. must the judiciary those are and what the misapprehension truths avoid elementary these pressed of power wide range to the fullest the not recognize we that do to condi- laws penal its adapt legislature possesses accord- men the crimes and they may punish exist tions in this do not intend We frequency. forms and to their ing those proposi- that contravenes anything to express opinion tions. in Terri- instance, For may be illustrated. meaning
Our brought has been a case 718,M. Ketchum, 10 N. tory unusual cruel and views of our antagonistic attention our imposed pen- which was sustained a statute punishments, make an assault should who any person alty upon death for the purpose locomotive train, car or railroad any upon felony murder, robbery or other commit with the intent and agent. mail messenger express or employé, upon passenger purpose discussed the Territory Court The Supreme to those opposed views expressed Amendment the Eighth decision its rested finally but in this opinion, we announce Territory existed which the conditions accompanied which danger of terror circumstances legislation we mention may also So crime denounced. definition common-law enlarging States some a severer fixing degrees, into dividing of burglary, from that time night for that committed in which buildings for arson time, day in committed bemay buildings from beings arson may human *26 380 OCTOBER TERM, 1909.
Opinion of the Court. 217 U. S. vacant. In all such cases there is something more to give character and degree to the crimes than the seeking of a felo- nious gain and it may properly become an element in the measure of their punishment.
From this comment we turn back to the law in controversy. Its character and the sentence in this case may be illustrated by examples even better than it can be represented by words. There are degrees of homicide that are not punished so severely, nor are the following crimes: misprision of treason, inciting rebellion, conspiracy to destroy the Government by force, recruiting soldiers in the United States to fight against the United States, forgery of letters patent, forgery of bonds and other instruments for the purpose of defrauding the United States, robbery, larceny other crimes. Section 86 of the Penal Laws of the United States, as revised and amended by c, act of Congress of March 4,1909, (35 Stat. 1088), pro- vides that any person charged with the payment of any appro- priation made by Congress who shall pay to any clerk or other employé of the United States a sum less than that provided by law and require a receipt for a sum greater than that paid to and received by him shall be guilty embezzlement, and shall be fined in double the amount so withheld and imprisoned not more than two years. The offense described has similarity to the offense for which Weems was convicted, but the punish- ment provided for it is in great contrast to the penalties of cadena temporal and its “accesories.” If we turn to the legis- lation of the Philippine Commission we find that instead of the penalties of cadena temporal, medium degree, (fourteen years eight months and*one day to seventeen years and four months, with fine and “accesories”), to cadena perpetua, fixed by the Spanish penal code for the falsification of bank notes and other instruments authorized by the %w kingdom, it is provided that the forgery of or counterfeiting the obligations or securities of the United States or of Philippine Islands shall be punished by a fine of more than ten thousand pesos imprisonment of not more than STATES. v. UNITED
WEEMS
Opinion
Court.
pos-
words, the highest'punishment
In other
years.
fifteen
many
loss of
thousand
may causé
which
sible for a crime
should
of the State
duty
which
dollars, and
prevent
in a
of truth
public
the perversion
to prevent
be
eager
may
imposed
than
is not
document,
greater
con-
And this
account.
of a
item
single
public
*27
falsifying
judg-
of legislative
exercises
different
shows more than
trast
the sentence
It condemns
than that.
is
It
greater
ment.
a difference
It exhibits
unusual.
as cruel and
in this case
under
is exercised
that which
and
power,
between unrestrained
establish
limitations formed
of constitutional
the spirit
no
and loses
nothing
power.
suffers
thereby
The State
justice.
fulfilled, crime is repressed
is
of punishment
The purpose
is pre-
its
severity,
repetition
tormenting,
not
just,
penalties
the criminal.
reformation of
for
is given
vented,
hope
and
imprisonment
for
the provision
that
suggested
It is
accessory
punishment,
from
is separable
code
Philippine
the former
leaving
illegal,
bemay
declared
the latter
that
48,
153 U. S.
Pridgeon,
United States
to have application.
case was
decided
The proposition
to.
is referred
offense,
of the person
jurisdiction
has
a court
“where
what the law permits
excess of
óf a sentence
the imposition
the sentence
portion
and authorized
the legal
not render
(cid:127)does
may be
sentence
portion
leaves
only
such
void, but
proposition
This
attack.”
question
open
in excess
imprisonment
bar.
at
case
to' the
applicable
is not
were
They
the law.
accordance
were in
accessories
it.
It
required
were
it,
positively
but
in excess
sentenced
those
seen, that
we have
in article
provided
State;
benefit
labor
shall
temporal
cadena
wrist;
from
ankle, hanging
at
carry chain
always
shall
no
receive
labor; shall
and painful
hard
at
be employed
shall
institutions.
the penal
without
from
whatsoever
assistance
of cadena
that,
penalty
56
in article
is provided
it And
accessory penalties.
include
shall
temporal
be “the
recognized
461, it was
S.U.
Graham, re
In
In
OCTOBER TERM, 1909.
J., dissenting.
White,
rule
general
that a judgment rendered by a court in a criminal
case must conform strictly to the statute, and that any varia
tion from its provisions, either in the character or the extent
of punishment
inflicted, renders the judgment absolutely
void.
.
.
In Ex parte Karstendick,
The Philippine code unites the penalties cadena temporal, principal accessory, and it is not in our power to separate them, even if they are separable, unless their independence is such that wé can say that their union was not made impera tive by the legislature. Employers’ Liability Cases, 207 U. S. . 463 This certainly cannot be said of the Philippine code, as a Spanish enactment, and the order putting into effect
in the islands did not attempt destroy the unity of its pro *28 visions or the effect of that unity. In other words, it was into put force as it existed with all its provisions dependent. cannot, We therefore, declare them separable. It follows from these views that, even if /the. minimum
penalty cadena temporal had been imposed, it would have been répugnant to the bill of- rights. In other words, the fault is the law, and, as we are pointed to no other under which a sentence can be imposed, judgment must :be re- versed, with directions to dismiss the proceedings. ordered„
So Mr. Justice Lurton, not being a member of the court when this case was argued, took no in its decision. part -
Mr. Justice White, dissenting. The Philippine law made criminal the entry a public record by a public official of a knowingly false statement. The
í/VEEMSv. UNITED STATES í?, S. White, dissenting. for
punishment ibis was im- law fine and prescribed violating in a institution at hard prisonment penal labor for painful from twelve period ranging years daya to twenty years, She as accessories to main prisoner being subjected, punish- ment, Ms at carrying during a chain imprisonment ankle from the hanging wrist, term of deprivation during of civil besides to imprisonment rights, subjection per- petual disqualification, office, etc., to enjoy rights, hold political and, after to the surveillance of the authorities. discharge, error, The been plaintiff having convicted a violation law, this im- was sentenced to a small fine and to pay undergo accessory for fifteen v/ifch the prisonment years, resulting above referred Neither to. at the trial punishments court of nor in first instance Court of the Supreme Philip- was raised any question Islands pine concerning repug- the crime defining of the statute its nancy fixing punish- bill of forbidding ment to the Philippine rights, provision Indeed, question cruel and unusual no on punishment. to in indirectly assignments was even referred
subject error below writ of filed the court this purpose counsel, error. In court con- however, the brief of this void, tention was made that the sentence was because the term was cruel and unusual one and therefore a- imprisonment bill of to be rights. Deeming contention repugnant of such as to it to be supreme require passed upon, importance below, now holds that the stat- although raised the court ute, because which it prescribes, repug- void, nant to the bill of and for this reason rights therefore reverses to discharge. alone and remands directions and- bill which is construed Philippine rights applied. *29 with the cruel and unusual clause of is identical punishment of it identity Amendment. Because is now the Eighth bill necessary that it is to of give Philippine decided attributable the on the rights meaning properly provision Amendment, the found the subject Eighth using same of in the statute is to be the that Amendment language TERM, 1909. OCTOBER dissenting. J.,
White, intended to the words give their Congress presumed now made, ruling therefore, significance. constitutional Amendment, and of the Eighth announces is an interpretation that Amendment on imposes which Congress limitation the authority define and its legislative punish exercising when of the decision is hence obvious. importance The great crime. where is for the every case inflicted course, punishment Of of crime, suffering if the the punishment by commission the sense of alone aroused regarded compassion wrongdoer im- judicial duty and render the performance mislead would conceded that this And it is to be natural conflict possible. and the sense of commiseration commands of duty between of the crime by when the nature defined is augmented which that law law and prescribes Philippine considered, since the is at abstractly once impression only is authority severely has been ex- legislative produced abstractly considered, because the first only I say erted. by merely abstract view of the sub- producéd impression duty that the defining the admonition is met ject in any country has never civilized been ex- crime punishing mere abstract considerations inherent nature erted upon always has involved the but most prac- the crime punished, , tendency at a particular time to consideration tical crimes, of the difficulty same, repressing certain commit remedies necessary far it is stern how impose pre- course, And, of such crimes. as.these the commission vent familiarity involve the for a necessity considerations I Islands which do not Philippine pos- conditions local additionally want of at once admonishes knowledge sess, such from to arise in-' wrong forming judgment upon ofme or without a knowledge subject-matter data sufficient indeed, is to be exerted. Strength, the judgment last fact that no suggestion question to this added was raised the courts there subject concerning below therefore, was afforded and, no those considered, opportunity least, relatively familiar with the local at courts, presumably, *30 385 STATES. v. UNITED WEEMS White, J., dissenting. TJ. S. the considerations as to views their conditions, express to of the punishment the prescribing led have to may which mere emotional therefore,, from aside, Turning question. of the the aid by alone my judgment and guiding tendencies ruling the to with agree command, I am unable my at reason rests an upon ruling my inAs, opinion, court. the of clause of unusual punishment the cruel and of interpretation announced, which before Amendment, never Eighth the employed language of the import to the natural repugnant the legislative curtails interpretation which clause, and the asserting by crime and punish to define Congress of power power, of that exertion over the supervision of judicial right legislative the between the distinction in disregard my duty to I Government, deem the departments judicial reasons. my state dissent state- outset a precise at the duty requires this
To perform now made ruling the by given construction of the ment to do inability My Amendm'ent. Eighth of the provision to fix I it impossible find because confessed, however, be must, that pro- to gives the court which meaning the precision in order solely but criticising, Not for purpose vision. my the reasons subject, on the my perplexity to indicate as fol- mind it appears my to Thus briefly given. are doubt against inhibition court interprets That First. lows: Congress as imposing punishment unusual the nature according to punishment duty proportioning of determin-. duty judiciary crime, and casts upon in a- apportioned properly been have whether punishments ing This it. enforce to decline if not statute, and particular made reference case, because be .the me to seems (im- the principal the harshness court be the it deems what toas its comments prisonment), result accessories inhumanity, if severity, in substance it, declaration accompany from of proportioning principle the just offend against things these stated crime punished, to the.naturé .punishment von. ccxvii —25 OCTOBER . TERM, 1909.
Whitk, J., dis.centmg. 21? U. S. fundamental precept justice and of American crirmn&ilaw. That this is the view now me, upheld, it seems to is addi- tionally demonstrated fact that the punishment for the *31 crime in question as imposed by the Philippine law is com- other pared with Philippine punishments for crimes deemed heinous, be less and the conclusion is deduced that this fact itself serves establish that the punishment imposed in this ease is an exertion of unrestrained power condemned by the cruel and unusual punishment clause.
Second. That this duty of apportionment compels not only that the lawmaking power should adequately apportion pun- ishment for the crimes toas which it legislates, but also further exacts that the performance of the duty of apportionment must be discharged by taking into view the standards, whether n lenientor severe, existing in other and distinct jurisdictions, and that a failure to do so authorizes the courts to consider standards their such discretion and judge of the validity of the law I accordingly. say- this because, although the court expressly declared in the opinion, when considering ease de- cided by the highest court of one of the Territories of the Uni- States, ted the legislative power to define and punish crime committed in a Territory, for the purpose of the Eighth Amendment, is separate and distinct from the legislation of Congress, yet in testing the validity of the punishment affixed by the law here in question, proceeds to measure it alone by Philippine legislation, but by the provisions several acts Congress punishing crime and in substance declares such Congressional laws to be a proper standard, and in effect holds that the greater proportionate punishment inflicted the Philippine law over the more lenient punishments- pre- scribed the laws of Congress establishes that the Philippine law is repugnant to the Eighth Amendment.
Third. That the .cruel and unusual clause the Eighth Amendment controls not only the exertion of legislative power as modes of punishment, proportionate or otherwise, but addresses itself also mainspring of
WEEMS v. UNITED STATES. White, J., dissenting. legislative motives enacting legislation punishing crime in a case, particular and therefore confers courts the power to refuse to enforce a law particular defining punishing crime inif their such law does opinion not manifest that the lawmak- ing power, fixing punishment, was sufficiently impelled by a to effect a purpose reformation of the criminal. This is said because of the statements contained in the opinion as to court the legislative duty to shape legislation not only with a view to but to punish reform criminal, and the in- ferences which I deduce that it is conceived that the failure to do so is a violation of constitutional duty.
Fourth. That the cruel and unusual punishment clause does not merely limit the legislative to fix power the punishment crime out of that excepting authority the to im- right bodily pose punishments kind, a cruel in the strict accepta- terms, of those tion but limits the legislative in de- discretion to what termining degree of severity an appropriate and usual *32 punishment may mode case be particular inflicted, and therefore endows the courts with the right the to-supervise exercise discretion as to legislative the adequacy of punish- ment, even resort is had although to only authorized kinds of the thereby courts with the punishment, endowing to re- power fuse to enforce laws crime if in the punishing judicial judgment branch of the legislative Government has a too prescribed severe punishment. able to being these, seems,
Not assent to as it to me some or at all events conflicting, widely divergent respects proposi- I shall tions, by consider them all as sanctioned the interpre- Amendment, now given prohibition Eighth tation the subject. with this mind shall consider conception and Before the text of the approaching Eighth ^Amendment inwhy out my its true let me meaning briefly determine point must receive cannot have it to. significance it opinion if In- the first place, sustain the rested it propositions upon it.. im- crime is be that the lawmaker in defining punishing restrained constitutional provisions apportion peratively TERM, 1909. OCTOBER dissenting. J., White, heinous- abstract alone of the by a consideration punishment sois result that the power it must offenses punished, ness all events execution, or at to be impossible circumscribed into ac- taking exclude the possibility as to restricted is so those considerations crime all defining punishing count to commit tendency society, condition concerning same, difficulty detecting crime, the particular of repression, to stern measures for resorting necessity been deemed which have at all times subjects other various And crime. punishing weighed in'defining to be essential law- vested of the discretion certainly paralysis is im- accomplish which the authority propositions making duty this when is considered that' measurably magnified into account taking requires punishment proportioning countries in other or different prevailing the standards on the at once thereby exacting legislation jurisdictions, not to the must proportioned, of crime subject conditions but must be based con- to apply, which it is intended no when enacted will have legislation which the ditions And when it is considered that whatever. or concern relation insist that if further and the legislation go the propositions im- mind not to have been sufficiently the judicial seems to criminal, of reformation of the such legis- by motives pelled is to be held crime defining punishing repugnant lation limitations, of the legislative the impotency constitutional is made manifest. When to define and crime punish power that the is added consideration interpretation result effect does not cause the cruel and necessary simply its of the domain of clause to carve out "unusual *33 resort kinds authority the to to power prohibited legislative control, the of degree but to subjects judicial of punishments, of be may with which authorized modes severity is conclusive seems to me that the demonstration inflicted, it be left of the independent legislative will nothing power if now crime, define the made to and interpretation punish to its conclusion. logical be future application pushed 389 STATES. UNITED WEEMS v. dissenting. J., White, U. S. for the Amendment, purpose Eighth the me come But let not, my opinion, does question clause why the stating of does it, and therefore from drawn the deductions authorize now made. ruling the sanction in the origin as to its a, Amendment the consider I^shall given prior there meaning the country and
mother in the existence and its Revolution; b, migration American the of the adoption to the and prior the Revolution after States and the Constitution into Constitution; c, incorporation its the beginning from practice to it given construction the has re- which it and, the-judicial interpretation time; cl, this affixed, both prac- construction with the ceived, associated found in various same provision judicially, and tice of rights. or bills constitutions state suffi detail, it unnecessary historical into going
Without S.U. Kemmler, re in In the court out, as did to point cient unusual and in reference “the 446, that provision to.cruel act of well-known Parliament from the taken punishments of the liberties the and declaring rights actAn 1688, entitled crown.” And of the the succession settling subject form a crystalliza observed, regular was but in to be act, it is Hallam,. year. same rights declaration tion certain, as-declared It is also 106. Hist., vol. 3, p. Const. -(cid:127) had reference of rights declaration “this case, that 'Kemmler departments judicial of the-executive and. acts grievances embodied the it But since England,” government usurpations been suffered had deemed it was In the courts. authority by transgressions crown and the bill of rights in -the both declaration recitals, cruel illegal of were that grievances complained rights, di utterly “which are inflicted, been punishments.had and freedom and statutes laws to the known contrary rectly bill of the declaration in-both realm,” while of this against declaration was a formulated remedy rights and unusual punishments. infliction (cid:127) mean- in'fixing if any, difficulty, may Whatever *34 390 OCTOBER TERM, 1909.
White, J., dissenting. ing the prohibition at its may origin, not be doubted, and indeed is not questioned by any one, that the cruel punish- ments against which the bill of rights provided were the atrocious,, sanguinary and inhuman punishments which had .been-inflicted in the past persons criminals. This certain, being the difficulty of interpretation, if any is in- volved, in determining what was intended by the unusual punishments referred to and which were provided' against. Light, on however, this subject is at once afforded ob- serving that the unusual punishments provided against were responsive to and obviously considered to be the illegal punish- ments complained of. These complaints were, first, that cus-' tomáry modes' of bodily punishments, such as whipping and the pillory, had, under the exercise of judicial discretion, been applied so unusual a degree them, as to cause to be illegal; and, second,' that in some cases an authority to sentence to perpetual imprisonment had been exerted under the assump- tion that power to do so resulted from the existence of judicial discretion to sentence to imprisonment, when it was unusual, and therefore illegal, to inflict life (cid:127) imprisonment in the absence legislative express authority. In other words, the prohibi- tions, although conjunctively stated, were really disjunctive, and embraced a, follows: Prohibitions against a resort to the inhuman bodily punishments of the past; b, or, where certain bodily punishment's were customary, a prohibition against their infliction to such an . extent as to be unusual and conse- quently c, illegal; or the infliction, under the assumption judicial exercise of discretion, of unusual punishments not bodily which could not be imposed except express statute, or which were wholly beyond jurisdiction of the court to impose.
-The and. scope power the guarantee as we have thus stated it will be found portrayed in the reasons assigned by the members of the House-of Lords who against dissented two judgments' for perjury entered in Bench King’s against Titus Oates. 10 Howell’s State Trials, col. 1325. STATES. UNITED
WEEMS J., dissenting. White, U. S. are copied reasons dissenting and the The judgments margin.1 *35 of the conferees the to as report referred well the dissent
As upon two indict upon conviction against Titus Oates Judgment court, State (10 Howell’s by the announced perjury, for as ments 1325). Trials, col. 1316-1317 & “ marks fine, you pay 1000 a that First, order for The Court does each Indictment. upon Habits. your stript of all Canonical “Secondly, you That be upon the Pil-. award, you do stand That does “Thirdly, The Court gate, upon before Westminster-hall Pillory, here in the lory, and hour’s, 12; of 10 and time, hours between the next, for an Monday with round (which first walk you must your over head a paper with Westminster-hall) your crime. declaring in the Courts to all about upon the first Indictment. And that Indictment), Tuesday, you shall (on Second “Fourthly, the London, Exchange Royal Pillory, the at upon, and stand two; and hours twelve hour, the between space of an for the inscription. same the Aldgate to whipped from Wednesday be next upon the “You shall Newgate. Tyburn, by Newgate to from whipped be Friday, you shall “Upon hangman. common of the hands par- several remember, were there Oates, cannot but “But, we Mr. commem- therefore, about; as annual false you swore times ticular live, long you we as as people all to orations,'that- be known may it punishment. annual an you care special taken have live, you are you to as every year, long as April 24th "Upon the just opposite Pillory, Tyburn, at Pillory and upon the stand of ten and hour, the hours between space of an for the gallows, to twelve. here at Pillory, Westminster- upon, and stand “You to are live. And long you as every year, so August, every 9th of gate, hall remember, what it, he ’tis what we mean known may be that 12th the 8th between town Ireland’s.being in Mr. about swore August. Charing-cross, on the Pillory, at upon, and in stand are “You life, hour, between for an during your year, August, every 10th twelve. ten and the 11th. Temple gate, upon over-against like “The time, (which is another notorious September, 2d upon the “And OCTOBER TERM, 1909.
White, J., dissenting. on the part House of Commons, made to body that con- cerning a bill set aside the judgments against Oates above (Cobbett’s to, referred Pari. History, V, vol. col. 386), pro- ceeded upon identity of what was deemed the illegal practises complained and which were intended to be rectified prohibition against cruel and unusual punishments you cannot but be of) you remember’d are to upon, stand space for the Pillory, hour, of one between two, twelve and at Royal Exchange; you all this are do every year, during life; your to be prisoner, committed close long you live.” Dissenting of minority statement of the House of Lords: For king’s “1. bench, being a temporal court, made it part judgment, Oates, Titus clerk, being should for his perjuries, said be divested of his canonical and-priestly habit, and to divested life; continue all his which is a matter wholly out of their power, belonging to the ecclesiastical courts only. *36 “2. For that the said judgments .are barbarous, inhuman, and un- christian; and there precedents- is no to warrant punishments whipping and committing prison life, for the crime of perjury; yet part but which were punishments inflicted upon him. For that the particular “3. matters which the indictments found,, were points were objected against Mr. Titus Oates’ testi- trials, in of the mony several in which he was allowed to be a good and witness, though credible testified against him most of same the. persons, who against witnessed him upon those indictments. For that “4. will be an encouragement and allowance for cruel, giving the like barbarous, illegal judgments hereafter, un- judgment less this be reversed. Holt, sir Because John “5. sir Henry Pollexfen, jus- the two chief tices, sir Robert baron, Atkins chief with six judges more (being then present); all that where for.-these and many reasons, other did, us, solemnly before deliver opinions, their and unanimously declare, judgments That the said were contrary to law and practice, ancient erroneous, and therefore -and ought to be reversed. it contrary “6. Because to the declaration on the twelfth Feb- last, ruary which was ordered Spiritual Lords and Temporal assembled, and Commons then and by thei/ engrossed declaration in parchment, among and enrolled parliament, records of and re- chancery; corded whereby it appear, doth -that bail excessive ought not to required, nor fjruel excessive fines imposed, nor nor unusual punishments inflicted.” WEEMS v. UNITED STATES. 393' White, J., dissenting. U. S. inmade the declaration of rights, treated that prohibition, stated, already substantially disjunctive, and as forbid- of the ding doing we things have above enumerated. See, for the disjunctive character the.provision, Stephen, Comm. Law of 15th England, ed., 379. p.
When origin of the purpose declaration and the bill is thus fixed it rights becomes clear that that declaration is now susceptible meaning attributed to the same found language the Constitution of the United States. That England was nowhere deemed that any theory of pro- was portional punishment Suggested by the bill of rights that a protest thereby intended'against severity punishments, speaking. generally, is demonstrated by the which practise prevailed England as to crime punishing from the time of. the bill of to the time rights of the Ameri- can Revolution. on this Speaking subject, in his Stephen, of .the history criminal law of England, vol. 470-471, pp. says: ’ “The severity.of the criminal law was greatly increased all through eighteenth century by the creation of new felonies benefit of . . . clergy. However,- after making without. all deductions’on these grounds, there can be no doubt that the legislátion eighteenth century criminal matters- was severe highest and destitute of degree, any sort of prin- or system.” ciple
For the sake of brevity a review of the pr^tises prevailed colonial will not bé referred to. There- period *37 fore, attention is at once directed to the express guarantees Declaration, certain the state constitutions after the adopted Independence to the formation of prior the Constitution the United States, and the circumstances connected subsequent Amendment. adoption Eighth In Maryland, in a bill of rights (1 declared Charters and Constitutions, 818, 819): pp.
“XIV. That avoided, as sanguinary laws to be far as ought ^consistent with the safety and no law to inflict S,tate; OCTOBER TERM, 1909.
White, J., dissenting. 217 TJ. S. cruel and unusual pains penalties ought to be in any made case, any or at time hereafter.”
“XXII. That excessive bail ought not to be required, nor excessive fines nor cruel or imposed, unusual in- punishments courts, flicted, by the of law.”'
The constitution of North Carolina of 1776 in general terms prohibited infliction of “cruel or unusual punishments.” Virginia, by 9 of the bill of rights in 1776, adopted § pro- as vided follows:
“That excessive bail not to be ought required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” - In the Massachusetts declaration of rights a direct prohibition placed infliction or magistrates courts of cruel or unusual punishments, the provision being follows:
“Art. XXVI. No or of law magistrate court demand shall excessive bail or sureties, excessive or impose fines, inflict cruel or unusual punishments.”
The declaration of rights of New Hampshire 1784, was as follows:
“XVIII. All ought to be penalties proportioned to the na- ture the offense. No wise sapie will legislature affix the theft, crimes of forgery and the like, which do they to those of murder and treason; where the same un- distinguishing severity exerted is against all offenses; the led to peoplé-aré forget the real distinction in the crimes them- selves, and to commit the most flagrant with as little com- punction do those they offthe lightest dye: the same For reason of sanguinary laws is both multitude and un- impolitic just. true of all design punishments being reform, to exterminate, mankind.”' n “XXXIII. No-magistrate court of law shall ex- demand cessive bail or sureties, impose fines, excessive or- inflict or unusual punishments.”
The substantial identity between the of these provisions- several constitutions or bills of rights shows beyond doubt that
WEEMS v. UNITED STATES. ' dissenting. -White, J.,
217 U. S. say, that is to that the understood, signifi- was meaning their in mother as the result country attributed to them the cance and it was of-1689 was bill of rights appreciated, of .the words to them the same give intended in the identical using observed that the New It is to be meaning. well-understood as a clause admonishing bill of contains rights Hampshire ac- wisdom of the of crime apportionment punishment offense, to the nature of the but marked contrast cording reenactment, terms, of the cruel express positive bill of rights, clause punishment English unusual ad- merely advisory, the provision .apportionment .to and accurate ditionally demonstrating precise conception of the then entertained the nature and character prohibition from"the English'bill rights. adopted (cid:127) to the forma- Undoubtedly, States, American prior for Constitution, of the af- protection tion necessity guarantee the cruel and unusual by forded punishment concern, be- a matter rights bill had ceased to be English times of former as a rule the cruel bodily cause punishments moderate, bodily where no longer imposed, judges, were discretion, usual, not, had under the guise unusual a de- the infliction of to so directed such punishménts limits of discretion and cause the pun- as to transcend the gree in virtue of to be and had also not illegal, attempted, ishment discretion, such and extreme punish- mere to inflict unusual only to be inflicted always had been deemed-proper ments as authority. these statutory Despite the result of express the solicitude considerations, it’ is true that some of ratification, after the of the Constitution arose submission ratification, in , -whichthreatened such delay prevent against to guarantee least was occasioned the failure at part Thus, infliction of cruel and unusual punishments. Holmes, discussing general Mr. convention, Massachusetts the Constitution conferred judicial powers result fix define and the punish- right Congress (cid:127)referring the. Ill): El. Deb. crime, (2 ment for said X OCTOBER TERM, 1909. dissenting.
White, J., *39 “They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; no there.is constitutional check on them,1 but that racks and gibbets may be amongst the most mild instruments their of discipline.”
That-the opposition the ratification in the con- Virginia vention was earnestly and eloquently voiced by Patrick Henry well is too known require anything but statement. That the absence of a guarantee against cruel and unusual punishment one of causes'of the by solicitude which Henry was , is shown possessed by the debates that convention.. Thus n Patrick Henry (3 said El. Deb. 447):
“In this of business legislation, your members of Congress' lose will the restriction of not imposing, excessive fines, de- manding bail, excessive crüel inflicting and unusual pun- ishments. These are prohibited by yoúr declaration of rights. has What distinguished our ancestors? That they would not ' admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference of common law. They may introduce -practice France, Spain Germany torturing, —of extort a confession of the crime. They say that they .will might as well draw from examples those countries as from Britain, Great and they will tell you that there is such a neces- sity strengthening arm government that they must have a criminal equity, and extort confession by torture, mpre order to with still punish relentless severity! areWe then lost and undone. And any can man think it troublesome when we can a small bv interference prevent our rights from If being you lost? will, like the Virginian government, give them knowledge the extent of the rights by retained and the peqple, powers of themselves, they will, if they honest men, thank you for it. Will they not wish on go - sure grounds? But, if you leave them otherwise, they'will know uncertainty, how to proceed; and, they being state of will assume give up by rather than .powers implication.”
WEEMS UNITED STATES. (cid:127) dissenting. J., S.U. White, observations, These it is seen, to be plainly were addressed to the fear of the either repetition sanction of law or courts, practice the barbarous modes bodily torture, protest against which was em- bodied the bill of in 1689. rights
The ultimate by Henry of the patriotic duty to recognition ratify the Constitution- and trust to the subsequent adoption bill of of a rights, submission and adoption of the first ten amendments as a bill(cid:127) of rights followed ratification,', Mr. the connection of Madison with the drafting amend- ments, and the fact that the Eighth Amendment inis words precise guarantee on that subject Vir- bill of would ginia rights, seem to make it clear perfectly *40 only was intended by that Amendment to' remedy the it. which had been wrongs provided against the English bill of rights, which were likewise provided against the. and therefore were Virginia provision, intended to guard vividly the evils so against by portrayed Henry the de- bate which we have-quoted. That this was the common un- which must have derstanding existed on the subject plainly to inferred from the fact that the Eighth Amendment was be. substantially submitted by without Congress any debate on 2 Elliot's Deb. 225.- course, the Of view subject. of the Consti-, of and character which the government nature called into of the being, incorporation tution -Eighth caused its to Amendment a direct and provisions operate (as branch well controlling prohibition upon legislative all, it other from departments), restraining authorizing- bodily infliction of the directing punishments or was one of to be sought the evils prevented the past, gko by bill of the'Englisli rights, restrained for the future from Congress from them exerting empowering the courts exert discretion modes by way punish- -to-select usual, modes of not or usual were ment which could alone 'usual and which by not imposed to a degree law. But this obvious authority result no lends express TERM, OCTOBER 1909. J., dissenting.
White, of the Amendment theory to the adoption support branch was intended to prevent legislative operated from to its according concep- of the prescribing, Government > se- such required, tion what public policy punishments, otherwise, necessary it deemed for the prevention vere or only resort was not had to the infliction crime, provided of a cruel and barbarous character bodily, punishments , Not to provided! which the Amendment expressly against in addi- to hold that because the Amendment so conclude is au- of the lawmaking power right tion to depriving .re- bodily of cruel had punishments the infliction thorize them, where discretion was courts, possessed stricted or in a manner so mode exerting punish from power n sanction, thereby legislative deprived unusual as to require which the sanction the punishments Congress power were merely they because being imposed forbade Amendment words, that because the power In other sanctioned. legisla-' certain' without things to the do judiciary denied legisla- on the thereby right part authority, tive away. was taken And authority to confer ture equally impossible would lead conclusion impossible was to Con- of the Amendment deprive that- the’ effect result crime, by authority prescrib- punish of its legitimate gress even not before modes punishment, such ing although for.,the as were purpose. appropriate employed, now to the Amendment as is ascribed meaning *41 no such That it at the time of its is shown adoption to attributed was (cid:127) such a mean- that it had single suggestion not a fact that the the to, and that on the other hand practise is ing pointed contrary directly shows very beginning from-the very the Amend- Congress adopted that the demonstrates I have it. This is it in as construed practice construed ment of act the States first crimes United prescribed so, since any without as- utterly reference to for crime a punishment or of a of a conception rule of proportion right sumed to action of Congress respect to supervise judiciary ' STATES. v. UNITED WEEMS White, J., dissenting. S. 217 U. always right excluding of severity punishment, bodily punishments the cruel as a punishment
impose there be can demonstration What clearer were prohibited. Ex by this court parte the statement of this than made 427, act, of first crimes nature S. of the Wilson, U. as follows: States, of forgery of the United first Crimes Act
“By securi- securities, uttering forged public or knowingly public defraud, treason, murder, piracy, as well with intent to ties of a rescue of a convicted robbery, capital or mutiny, person death; were most other offences crime, was with punishable was part fine and imprisonment; whipping punished records, fraudulently or falsifying of stealing the punishment or stolen bail, larceny goods, receiving acknowledging hold office was part punish- goods; disqualification or convicted subor- bribery; perjury and those ment of were fined and being imprisoned, besides nation of perjury, hour, one rendered for incapable pillory to stand '30, States. Act of court of the United any April testifying 112-117; Mr. 9; 1 Wilson's Stat. Justice 1790, Charge ch. Works, 380, 1791, 3 Wilson's 381.” Jury Grand I even of is, think, beyond question that
And it power of the first act the date crimes of Congress from .legislation been of what has time truth but exemplifies present to-the time to time altered from since that said, legislation modes the amount diminishing increasing punishment, necessary the public for good, deemed character, ref- without of a new punishments prescribing or 'the con- any assumed rule of apportionment erence was deemed right judicial supervision ception brevity to dem- any regard It impossible obtain. But illustrations. let me many statements by these onstrate by Congress enacted from legislation sample give (Art. the first dimes 14 of act By of punishment. § change 115), etc., 1790, 9, forgery, 1 Stat. ch. April States, or the ut- knowingly of the United securities public *42 TERM, 1909. OCTOBER 400 J., dissenting. 217 U. S. White, for sale of counterfeited securi- forged and offering tering defraud, with intent to was States made ties of the United fine The now of not by death. a punishment punishable hard labor not $5,000, and at 'imprisonment than more Stat., years. Rev. 5414. fifteen more than § also, as in numerous others since first crimes act By the for the time, various additional commis- punishments that to disqualification were imposed, prescribing sion of crime courts, etc., be witness the and as late office, to hold by enacted Congress prescribed law was which 1865 a disqualification enjoy rights for crime the Stat., 1996, 1997, 1998. Rev. citizenship. §§ (cid:127) court,1 at the' of this it rulings looking Comprehensively in they definitely have not that be conceded hitherto may of the clause be meaning question, the precise terpreted in which the in most of the cases protection cause the cases came from courts of has invoked been Amendment room for the States, leave opinions last resort they upon implied assumption proceeded contention nQt by did the States govern Amendment Eighth How of the Fourteenth Amendment. adoption virtue S. a case Utah, coming v. 99 U. ever, Wilkerson Utah, of the Territory'of meaning from court in question directly came Amendment Eighth clause was whether for decision a sen question review. under had been by shooting, imposed death tence discretionary of a assumed exercise power under court sentence, was mode of execution repugnant fix the not, it was deciding-that the court While clause. clause, fully meaning interpret undertake did exclusion, nevertheless, reasoning expressly negatived it. It said 135- now (pp. placed the construction 136): 1 475; Utah, v. 5 Wall. Massachusetts, v. Wilkerson Pervear 142 436; 155; S. U. S. Brush, 130; 136 Kemmler, McElvaine In re U. U. S. 126. Fleming,
Howard v.
WEEMS v.- UNITED STATES.
, J., dissenting. 217 U. S. White.
“Difficulty would attend the effort to define exact- ness extent of the constitutional provision pra- vides that cruel and unusual punishments shall not be in- flicted; but is it safe to affirm that of torture, punishments such as those mentioned to, commentator referred all others in the same line of cruelty, are for- unnecessary bidden by that amendment to the Cooley, Constitution. Const.' Lim. (4th ed.), 408; Wharton, L. (7th ed.), Cr. sec. 3405.”
And it was doubtless this ruling which caused the court subsequently to in In re say Kemmler, 136 436, S.U. 447:
“Punishments are cruel when they involve torture or a death; lingering but the punishment of cruel, death is not within the of that meaning word as used in the Constitution.
It there implies something inhuman barbarous, some- more than the thing mere extinguishment of life.” Generally viewing action of the States in their bills as to the right prohibition against inhuman or cruel and unusual punishments, is true say that those provisions substantially conform to the bill English of rights and to the provision Eighth Amendment we arfeconsidering, some using.the expression cruel and unusual, others the more ac- curate expression cruel or unusual, and some cruel only, and. in a few instances a provision requiring to be punishments to the proportioned nature of the offense is added in- to the against hibition cruel and unusual punishments. In one (Illinois) the prohibition against cruel and unusual punish- ments is not expressed, although'proportional is commanded, yet Kelley v. The Illinois, People, discussing the extent of punishment inflicted a criminal statute, the Court Supreme of Illinois declared that “it wpuld be for the not court to say the penalty proportioned nature of to the the offense.” In another (Ohio) State where early constitution of the State proportionate punish- conjoined ment was with the cruel and unusual punishment the proportionate provision, provision was omitted in a later constitution.
Vol. ccxvii —26 TERM, 1909. OCTOBER
White, J., dissénting. my time Here, say, forbidding indulg- it is true again, all the statutes, that the legislation review ing to the in conflict with and absolutely repugnant States clause, to the since that legislation now given construction exertion of to define legislative but power exemplifies crime according legislativo conception and punish situation, without the indica- the necessities of the slightest duty the assumed to proportion punishments, tion of of the existence of judicial without the suggestion power discretion, only control the legislative provided forbidden were to. not resorted bodily punishments *44 of seems resort, And of the state courts last it the decisions me, uniformity with absolute and without a single excep- this is from the It beginning,' proceed upon conception. tion in that when the the various cases reasoning employed true of will mani- critically is examined difference conception fested as to the occasion for the of the bill adoption English remedy of and of the which it rights provided. Generally when carefully analyzed, it will be seen that speaking, was by difference occasioned treating provision against cruel and unusual instead of dis- punishment conjunctive fact, which I junctive, thereby think has overlooking case, been demonstrated to be the that the term previously unusual, clause, as used in the not a qualification was cruel but against synony- was provision simply punghments, mainly mous and was intended to restrain the illegal, courts, discretion, under the of guise from in an indulging consequently unusual exertion of Certain illegal power. however, is, may whatever be these of differences reason- out in bold in cases, there stands relief the State as it is ing, them, me to understand without a single exception, given, any clear certain exclusion of prohibition upon to determine the with which lawmaking adequacy power only bodily crime shall be the cruel punished, provided pun- ishments of are not resorted to. Let me re- briefly the past the cases. fer to some,^
WEEMS v. UNITED STATES. J., dissenting. White, S.
217 U. 447, decided Commonwealth, v. Va. Cas. In about Aldridge Amendment, of the Eighth after the twenty years ratification of evils to which the- guarantee concerning speaking and unusual of rights against punishment's bill Virginia addressed, court, after referring, punishments was in to crime the time that State usually at applicable 450): said of the bill of rights Virginia, (p. adoption sufficiently rigorous; “We consider these sanctions as hearts of the of our we knew that the best heads and land loudly, ’against had declaimed wanton long ancestors in other coun- cruelty many punishments practiced was framed tries; rights and this section the bill effec- tually these, to exclude so that no future' legislature, excitement, moment should be great general perhaps any our code the introduction of disgrace tempted those odious modes punishment.”
And, years later,- 1828, four the same doctrine applying 6 Rand. where a Wyatt, Commonwealth punishment contrary bill whipping challenged "Virginia 700): the court said “The of offenses rights, (p. odious, cannot 'by certainly but be said to be'un- stripes usual.” 1865 there was no provision
Until the constitution of guaranteeing cruel and unusual Georgia expressly against *45 The constitution of that year, however, con- punishments. in terms with Amendment, tained a clause identical the Eighth guarantee of the arose for scope decision 1872 State, v. 297. The Georgia, Whitten case was this: Upon 47 for assault battery a conviction Whitten had sen- been $250 or the tenced to of a fine of imprisonment payment The contention was sentence was so costs. dis- this ' offense as to be committed proportionate In repugnant unusual and one of its im- guarantee. mediate the case involved the aspects guarantee against fines, but as the excessive was the coercive imprisonment means for the payment fine, the case aspect TERM, OCTOBER 1909.
White, J., dissenting. 217 IT. S. involved the cruel clause, and unusual punishment and the considered, so and, court in coming to interpret the clause 301): said (p.
“Whether the law is unconstitutional, a violation of that article of the Constitution which declares excessive fines shall not be imposed nór cruel and unusual punishments 'inflicted, is question. another The latter was, clause doubt- less, intended to prohibit barbarities of quartering, hang- , in chains, ing etc. When castration, by the adopted framers Constitution the United' States, was larceny gen- erally by punished hanging; forgeries, burglaries, etc., for, the bame be it way, remembered, penitentiaries are of modern I origin,.and doubt it\ver entered into the mind if day of men of that that a.crime such as this witness makes guilty defendant of deserved a less penalty than the judge inflicted. It would has be an interference with matters left Constitution to thé legislative department the gov- fqr ernment us to undertake to weigh the propriety or that penalty‘fixed thé legislature for. specific offenses. (cid:127) So do not long they provide cruel and unusual punishments, such as .the disgraced civilization of former ages, and made one shudder with horror to read of th.em, as drawing, quar- etc., tering, burning, Constitution does not put any limit legislative discretion.” upon'
In State White (1890), Kansas, 514, it was sought to a sentence of years’ r'cverse five imprisonment in the peni tentiary, imposed upon boy of sixteen for statutory rape. The was girl aged sixteen, and had consented. It was con if tended that the statute applied was unconstitutional and void, “for the reason that it conflicts with section 9 of the bill rights, because it inflicts cruel and unusual punishment, and is in conflict spirit the bill of rights generally, and is in.violation of common sense, reason, common and common justice.” severely court criticised the statute. After deciding
that the offense embraced the statute, the court said: *46 405 STATES.
WEEMS v. UNITED n White, J., dissenting. S.U. 217 while of punishment, severity “With respect be- than has ever one is a severer is that it true think it we for such county or State any other for fore been provided for that is void the statute say cannot offense, we yet an is at hard labor in the penitentiary Imprisonment reason. meaning within the punishment; or unusual a cruel not of itself it is Constitution, for rights 9 of the.bill of section ever since resorted has heen which kind of punishment a kind of is a existence,- punishment any had has Kansas Con- section That civilized countries. in all common the kind punish- however, relates probably, stitution the' Although inflicted, not to its duration. to be ment much severe, and considered be may in this case punishment of much offenses for than punishment indeed severer coupled intercourse sexual adultery, magnitude, greater for act providing say that we seduction, yet cannot or-void.” is unconstitutional sus the court Ohio St. (1900), 63 v. Hogan In State as the-punishment law,” which “tramp a tained prescribed, to-the injury to do threatening a tramp on imposed be more not in the penitentiary another, imprisonment person In course year. one less than nor the. years three than said: court opinion a cruel and unusual act prescribes that'the objection
“The hard at Imprisonment well taken. we think in the' be severe may It nor unusual. is neither labor lawmaking power. for the question that is instance, but given Kentucky, Com., 436; Cornelison Kemmler, 136 U. S. re In will such as be should effective, punishment, The 583. sen- jail for a nothing cares tramp a deterrent. prove less wel sentence Á workhouse he courts it. Often tence. A State. few workhouses but are there but come, he has There real punishment. is a sentence penitentiary shirk.” cannot work, misap- convicted deeds register
In Minnesota turned been have should $62.50, the sum propriating *47 406 OCTOBER TERM, 1909.
White, J., dissenting 217 U.' S. him over by to the county treasurer. He was sentenced to $500 a fine of pay and be imprisoned at hard labor for one year. The contention that the sentence was repugnant to the'state constitutional guarantee against cruel and unusual punish ment was considered and disposed of by the court in State v . Borgstrom, 69 Minnesota, 508, 520. Among other things the court said:
“It is claimed that the sentence imposed was altogether dis- proportionate to the offense charged, and of which the de- fendant was convicted, and comes within the inhibition of Const, art. 1, 5, that no § cruel or unusual punishments be inflicted. . . . We are not unmindful of the importance of this question, and given have to it that serious and thorough examination which such importance demands. ... In England there was a time when punishment was by torture, by loading him with weights to make him confess. Traitors were condemned to be drowned, disemboweled, or burned. It was the Taw that the offender shall be drawn, or rather dragged, to ' the gallows; he shall be hanged and cut down alive'; his entrails shall be removed and burned while yet he lives; his head shall he decapitated; his body divided into four parts/ \Browne, Bl. Comm. 617. For certain other offenses the offender was pun- ished cutting off the hands or ears, or boiling in oil, or putting the pillory. By the Roman law a parricide was punished by being sewed up. in a leather sack with a live dog, cock, a a viper, and an ape, and cast into the sea. These pun- ishments may properly be termed cruel, but happily the more humane spirit of this nation does not permit such punishment -to be inflicted upon criminals. Such punishments are not warranted.by the laws of nature or society, and we find that they are prohibited by our Constitution. But, within this limitation or restriction, the legislature is ordinarily the judge expediency- the. new creating crimes and of prescribing the penalty. . . -. While the amount of money misappro- priated in this instance was not great, the legislature evi- dently had in mind the fact that the misappropriation by 407 . STATES. UNITED v.
WEEMS dissenting. White, J., S.U. pub- destructive was money of the public official public fine But govémment. of our stability lic rights punish- unusual cruel ordinarily are imprisonment ...” ments. considered court 721, the M.N. Ketchum, Territory . In in force put been recently had which statute whether punish- former of a instead penalty the death imposed which robbery, at train attempt for an of imprisonment, ment law validity the. sustaining In unusual. presumably society the conditions out *48 court pointed after stern penalty, to fix lawmaking power led had law. that held was subject discussion lengthy a or unusual. cruel which punishment impose did content I therefore are typical, reviewed just cases same others many margin noting myself effect.1 general could, no ease my opinion done, I have stating, In now court proposition sustaining found resort, in last .of courts 1 and territorial in state decided Cases were punishments particular whether question volving the. Clark, Cali 106 California, 1; People v. Mitchell, 70 parte Ex unusual: State, Illi 115 Kelley v. 450; State, Georgia, 80 32; Fogarty v. fornia, Iowa, Teeters, 97 404; v. Indiana, State State, 133 v. 583; nois, Hobbs Commonwealth, 84 v. 705; Kansas, Cornelison Tutt, 55 re 458; In 290;. Kentucky, Commonwealth, 93 v. Harper 583, 608; Kentucky, Maryland, State, 378; 59 Foot v. Louisiana, Baker, 105 v. State Common v. 482; McDonald Gray, Hitchings, 5 v. 267; Commonwealth Judge, 69 Newaygo Circuit v. 322; Massachusetts, Luton wealth, 173 Smith, v. 637; People Michigan, Morris, 80 v. 610; People Michigan, v. 622; Dimmer Michigan, 105 Whitney, 644; People v. Michigan, 94 569; Michigan, 112 Huntley, v. People 481; Michigan, 107 Nungesser, Missouri, 44; Swann, 96 310; parte Ex Missouri, Williams, 77 v. State Missouri, 227; 136 Wye, v. Van 514; State Missouri, Moore, 121 v. State 415; State M. 1 N. Territory, v. Vroom, 86; Garcia 14 Gedicke, v. State Becker, v. 319; State D. v. Barnes, 3 N. 584; State C.N. 121 Apple, v. Lane, 80 De v. 134; State Vermont, Hodgson, 66 v. 29; State S. D. 3 MacDonald, Wisconsin, 418; In re Fackler, 91 259; State Wisconsin, . 150. Wyoming, TERM, OCTOBER 1909. White, J., dissenting.
holds, I am of course not unmindful that a North Carolina case
(State v. Driver,
As to the Louisiana case, I content myself with saying that it, in substance, involved merely the question of error com- STATES. UNITED
WEEMS dissenting. White, J., U. S. for many punishment in imposing magistrate aby mitted was a continuing offense law, the under-the when, offenses n one. single I been stated can which have considerations From all mind sustains the my which to whatever ground deduce no punishment and unusual to the cruel now given, interpretation the review which in has my contrary, opinion, On the clause. in as used cruel, the. that word demonstrates been made in lawmaking prescribing only power, Amendment, forbids punishment the courts imposing for crime punishment a resort unnecessary bodily suffering through inflicting from like or which bodily torture, causing methods to inhuman bodily methods torture cruel nature of the are bill of rights made use of prior been had used that which the word recurrence of 'against method Death was a well-known To illustrate. instrument. of course law, painful, and it was prescribed of punishment of.this punish- But the infliction sense was cruel. that cruel, although word by the clearly ment was prohibited resort to forbid the intended manifestly was that word ex- torture, in bodily methods unnecessary barbarous death. even the ecuting penalty establish considerations also my previous
In opinion First, three only results: accomplished the word unusual the au acting when under restrains the courts it primarily discretionary punishment, impose power of a thority general lawful law, from inflicting at common1 possessed such as was to cause the degree so unusual modes of punishment it cannot be degree to be because to illegal second, it re authority; statutory without express inflicted from discretion same exercise courts strains the be impliedly as té unusual mode so okpunishment inflicting illegal consequently and to be its discretion not within third, as to both and, authority; statutory express absence of *50 lawmaking power to restrain operated foregoing to exert an illegal right with the judiciary endowing from OCTOBER TERM, 1909. J., dissenting. White, discretion as to the kind and extent of punishment to be in flicted.-
Nor is it given to me to see in what respect the construction thus stated minimizes the constitutional guarantee by causing toit become obsolete ineffective in securing purposes which led to its course, adoption. Of it may not be doubted that the provision against cruel bodily punishment is not re- stricted to the mere means used in the past accomplish the prohibited result. The prohibition being generic, embraces all methods within its intendment. Thus, if it could be con- ceived that to-morrow the lawmaking power, instead of pro- viding the infliction of the death penalty by hanging, should command its infliction by burying alive, who could doubt that the law would be repugnant to the constitutional inhibition against cruel punishment? But while consider- ation is obvious, it must be equally apparent that the prohi- bition against the infliction of cruel bodily torture cannot be extended so as to limit legislative discretion in prescribing punishment for crime by modes and methods which aré not within embraced the prohibition against cruel bodily punish- ment, considered even in their most generic sense, without disregarding elementary rules of construction which have from prevailed the beginning. Of course, the beneficent ap- plication Constitution to the ever-changing require- ments of our national life has in a great measure resulted from the simple and general terms by which powers th$ created by the Constitution are conferred or in which the limitations which it provides are expressed. But this beneficent result has also essentially depended fact that this court, while never hesitating to bring within the powers granted or to restrain by the limitations' created all things generically within their embrace, has also incessantly declined to allow general words be construed so as to include subjects within their intendment. That these great results have been accomplished through application by the court of familiar rule that what is generically included in the words *51 411 UNITED STATES. v.
WEEMS dissenting. . J., White, S.U. 217 consider by ascertained be is to the Constitution in employed of their the time at significance and their origin their ing United (Boyd be'denied not may instrument the in adoption S.U. States, 195 v. United 624; 616, S.U. States, Keener directly repugnant which are 125), rulings 124, 100, limi constitutional construction by judicial that conception include ultimately as to so to progress made be may tations embrace, a principle intended not were .to they which that in direct is made now ruling theme to seems it which with results' two adopted now interpretation the conflict, since punishments, against clause the a, accomplished: are barbarous inhumane to prohibit intended was which the discretion limit toas sois construed bodily punishments, .with severity the mere determining in power lawmaking the of may'be character the prohibited of punishments which n unusual adopted word the interpreting and, b, by prescribed, in order discretion judicial limiting sole, of purpose the for lawmaking power, the of supremacy the maintain thereby directly con the about bring prohibition the cause toas so endowing power judicial' the is, to expand result, that trary department legislative the control authority to vast awith it crime. and punish define its discretion of exercise the in argument sake for the assuming this, than further But Amendment, Eighth view my in wrong I am that the discre- review power the with coürts the endows it that im- sentence body prescribing lawmaking tion conclusion agree I cannot crime, yet prisonment imprison- term of the mere because case in this reached hard at is imprisonment True,, rule. is within it ment qualification mere certainly the But labor. painful it basis be the cannot hard' addition painful abused, since discretion the legislative decided now knowledge requires term meaning to understand Is- Philippine- prisons prevailing discipline irk- classes, more one into labor of hard division lands. other than more painful said may some OCTOBER TERM, 1909. White, J., dissenting.
sense of severity, is well known. English Prisons Act of Pub. Gen. Stat., 19, page § I 835. do not assume that the (cid:127)mere fact that a chain is to be carried by the prisoner causes the punishment to be repugnant to the bill of rights, since while the chain may be irksome it is evidently not intended to prevent the performance of the penalty hard labor. Such a provision may well be *52 part the ordinary prison disci pline, particularly communities where the jails are insecure, and it may be a precaution applied, as it is commonly applied in this country, as a means of preventing the escape pris oners, for instance where the sentence imposed is to work on the roads or other work where escape might be likely. I am brought, then, to the conclusion that the accessory punish ments are the basis of the ruling now made, that the legislative discretion was so abused as to cause it to be necessary to de clare the law prescribing the punishment for the crime invalid. But I can see no foundation for this ruling, as to my mind these accessory punishments, even under the assumption, for the sake of argument, they amounted to an.abuse of legislative discretion, are clearly separable from the main n imprisonment. Where a — sentence is legal in one part illegal in another it is not open to controversy that the illegal, if separable, may be disregarded and the legal enforced. Uni ted States v. Pridgeon, 153U. S. 48. But it is said here the illegality is not merely the sentence, but in the law which authorizes the sentence. Grant the premise. The illegal is capable separation from the legal in the law as well as in the sentence, and because this is a criminal case it is none the less subject to the rule that where a statute is unconstitu tional in part and in part not, the unconstitutional part, if separable, may be rejected and the constitutional part main tained. Of it is course true that thát can only done pro vided it can be assumed that the legislature would have en acted the legal part separate from the illegal. The ruling now made must therefore rest upon the proposition, that because the law has provided an illegal addition to a legal punish- OIL CO. v. TENNESSEE.
STANDARD Syllabus. 217U.-S. would not have legislature that the must be assumed
ment it extent, because legal the crime and punished defined was mistaken as its legislature powers. some extent the in an which is un- indulge assumption I is to this contend But contrary decided to the at directly has been warranted Supply Company, term in States Union United crim- against In that case a corporation proceeded 50. fine. for an offense inally imprisonment punishable could not be clearly subjected imprison- The corporation must be ment, was that the lawmaker contention should to have intended that both punishments presumed law, and it therefore violating be inflicted upon person to include a within its could not be intended corporation terms, was said (p. 55): In contention it overruling from criminal if we free our minds the notion that
“And must, be construed some artificial and conven- statutes rule, inference, the natural when a statute prescribes tional it means to inflict them so is that two independent penalties, if not' can, far as it and that one of them does impossible, *53 on that account to let defendant escape.” mean I Mr. Justice concurs say am authorized to Holmes in this dissent. OF KENTUCKY v. COMPANY STATE
STANDARD OIL OF TENNESSEE. OF THE STATE OF TO THE SUPREME(cid:127) COURT TENNESSEE.
EREOR Argued 2,1910. April 20, May 1910. Decided No. 160. introducing not be Fourteenth Amendment will construed as a practical to' differences that equality regard without are
factitious corresponding, differences treatment. best met delinquents in the evil that are forced may be made Where a distinction may establishing delinquency also be suffer, difference different method of de-. may provide State justifiable, and a